# Matter of Will of Hester

> Court of Appeals of North Carolina · March 17, 1987 · 84 N.C. App. 585

URL: https://www.frixlaw.com/law-library/cases/9617883

## Case

- **Full name:** In the Matter of the Will of Hugh B. Hester, Deceased
- **Court:** Court of Appeals of North Carolina
- **Decided:** March 17, 1987
- **Citations:** 84 N.C. App. 585; 353 S.E.2d 643; 1987 N.C. App. LEXIS 2548
- **Precedential status:** Published
- **Opinion:** Dissent by Eagles
- **Judges:** Johnson, Arnold, Eagles
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Matter of Will of Hester, 320 N.C. 738 (1987).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9617883

## How later opinions describe it (automated extraction)

- holding that testimony of will’s executor was not barred by Dead Man’s Statute even though executor served on board of deacons at church named as beneficiary of will

## Opinion text

Judge EAGLES
dissenting.
I respectfully dissent. Here the trial court fashioned, in its discretion, an orderly procedure by which the traditional require *597 ment that the several purported wills be considered in one proceeding could be reconciled with the paramount concern that the jury understand the evidence and not be unnecessarily confused. In bifurcating the trial but maintaining the required unity by having the same jury hear all the evidence, the trial court assured that the parties’ competing claims as to the testator’s competency at various times and the validity of the several purported wills were fully heard in one proceeding but were considered one at a time rather than all at once. In my judgment the trial court’s innovative solution offends no mandate of our probate law, makes extraordinary good sense, and does not constitute an abuse of the trial court’s discretion. I would vote that under these facts the bifurcated procedure is permissible in the trial court’s discretion and that no abuse of discretion occurred here.
The majority maintains that the trial court’s bifurcation of the trial amounted to separate trials, even though the same judge and jury were involved throughout. The majority’s reading of In re Will of Charles, 263 N.C. 411 , 139 S.E. 2d 588 (1965), would restrict the trial court’s discretion so as to bar bifurcated trials in caveat proceedings no matter how complex or convoluted the evidence. I suggest that Charles is primarily directed at the potential for conflicting results arising from separate trials with different juries, judges and parties. It does not address the issue of the trial court’s discretion as to order of proof, recesses in the proceeding or authority to bifurcate a complex caveat proceeding.
Similarly I disagree with the majority’s assertion that the trial court’s decision to bifurcate the trial is an error of fatal proportions. The majority asserts that “it is not possible to determine the likelihood that the jury would have reached a different result. . . .” From that broadside conclusion the majority assumes the alleged error is fatal and requires a new trial. There is no showing of prejudice, no showing of the likelihood of a different result and no indication of what harm to appellants may have occurred.
The majority has substituted its own discretion for that of the trial court in an area which traditionally has been, and should continue to be, reserved to the trial judge. Though the majority asserts an abuse of discretion, I perceive none. The trial court was faced with an exceptionally prolix proceeding involving three *598 purported wills and allegations of undue influence and lack of testamentary capacity at the time each document was signed. A finding that the latest executed document was the testator’s will, i.e., that it was executed by the testator with the requisite intent and formality and in the absence of undue influence, would have had the practical effect of mooting the issues involving the two earlier executed documents. If the trial had not been bifurcated, the jury would have been instructed to do precisely what they did here, i.e., evaluate the purported wills, assertions of undue influence and the testator’s competency in the reverse chronological order of the purported dates of execution. Since that was done here, albeit in a recessed, bifurcated proceeding but before the same jury and judge, no prejudice can be shown.
I agree with the majority that the additional issues raised on appeal present no reversible error. I would go further and would vote that in the entire proceeding there is no prejudicial error.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9617883. Public record. Not legal advice.