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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
IN THE MATTER OF THE WILL OF: MARY M. YELVERTON, Deceased
Filed: 5 July 2006
1. Appeal and Error--preservation of issues--failure to cite authority
Caveator's appeal in a contested will case from the trial court's 17 December 2004 ruling
that caveator could not retain possession of the testator's real property pending appeal of the
caveat proceeding is dismissed, because caveator failed to cite any statutes, case law, or other
authority in support of his arguments as to why the order was erroneous as required by N.C. R.
App. P. 28(b)(6).
2. Appeal and Error--appealability--denial of summary judgment
Although caveator contends the trial court erred in a contested will case by denying his
motion for summary judgment with respect to the judgment probating the will, the trial court's
denial of summary judgment cannot constitute reversible error when the issues in this case were
decided following a trial on the merits.
3. Evidence--unavailable witness--denial of motion for continuance--abuse of
The trial court did not abuse its discretion in a contested will case by denying caveator's
motion for a continuance made at the close of propounder's evidence after propounder's notary
witness had informed him at the last minute that she was unavailable to testify, because: (1)
caveator's motion for a continuance was made in the middle of trial after the case had been set
peremptorily ahead of time based on propounder being stationed overseas; (2) caveator knew he
could not compel the witness to testify by service of a subpoena due to her relocation to
Maryland, and he made no attempt to secure her testimony through a deposition de bene esse;
and (3) a hardship would have resulted from a continuance in addition to caveator's failure to
exhaust reasonable methods of securing the witness's testimony.
4. Evidence_order concerning notary--failure to lay proper foundation
The trial court did not err in a contested will case by excluding evidence of an order from
the North Carolina Secretary of State regarding propounder's notary witness and testimony from
caveator relating to this order, because: (1) caveator failed to lay a proper foundation for the
evidence's admission; (2) caveator made no showing that he has personal nonhearsay knowledge
such that he could testify that the pertinent order refers to his mother's will; and (3) nothing on
the fact of the order indicated that the Secretary of State's order has anything at all to do with this
case, and caveator's offer of proof does not establish that he could offer admissible testimony
supplying the necessary connection.
5. Evidence--Dead Man's Statute--sentimental interest_facts based on independent
The trial court did not err in a contested will case by allowing propounder and his mother
to testify during trial about statements made to them by the testatrix, because: (1) the Dead Man's
Statute did not bar propounder's mother from testifying merely based on the fact that she was
aligned with propounder since her son was above the age of majority, and caveator failed toidentify any legal or pecuniary interest of the mother other than a mere sentimental interest; (2) it
is questionable whether propounder's assertion that his grandmother told him what was in an
envelope, without any testimony as to what the testator actually said, violated N.C.G.S. § 8C-1,
Rule 601(c); and (3) assuming arguendo that propounder's testimony was inadmissible, caveator
failed to demonstrate that any resulting error was prejudicial.
6. Judges--partiality--questioning witnesses directly
The trial court in a contested will case did not display partiality by questioning two
witnesses directly, and caveator is not entitled to a new trial on this basis, because: (1) the
judge's questions were neither biased toward one party nor were they geared toward eliciting
particular answers from the witnesses; and (2) the probable effect the exchanges had on the jury
7. Appeal and Error--preservation of issues--motion for directed verdict--motion for
judgment notwithstanding verdict--waiver
Although caveator contends the trial court erred in a contested will case by denying his
motion for a directed verdict at the close of propounder's evidence and motion for judgment
notwithstanding the verdict (JNOV), caveator's arguments were not properly preserved because:
(1) although caveator moved for directed verdict at the close of propounder's evidence, he did
not renew his motion at the close of all the evidence and thus waived his directed verdict motion;
and (2) caveator's waiver of the motion for a directed verdict also precludes a review of his
motion for JNOV.
8. Wills--motion for new trial--sufficiency of evidence--self-proved will--attesting
The trial court did not err by denying caveator's motion for a new trial based on
insufficiency of the evidence, because: (1) propounder offered both evidence of a self-proved
will and evidence from attesting witnesses regarding the circumstances surrounding the
execution and witnessing of the will; and (2) caveator failed to show the trial court abused its
Appeal by caveator from judgment entered 16 December 2004 and
orders entered 17 December 2004 and 17 February 2005 by Judge Jerry
Braswell in Wayne County Superior Court. Heard in the Court of
Appeals 12 January 2006.
Robert E. Fuller, Jr. for caveator-appellant.
Baddour, Parker & Hine, PC, by Philip A. Baddour, Jr., for
Caveator Mansel Yelverton has brought two separate appeals
arising out of his challenge to the will of the testator, Mary M.
Yelverton. As the issues presented in the appeals involve common
questions of law, we have consolidated the appeals for purposes of
In COA05-771, caveator appeals from an order instructing him
to vacate his mother's real property and allow his nephew,
propounder Kelvin Artis, to take possession. We dismiss this
appeal because caveator has cited no authority in support of his
In COA05-772, caveator appeals from a judgment probating his
mother's will and an order denying his motion for judgment
notwithstanding the verdict or, in the alternative, a new trial.
Based upon our review of the record, we find no reversible error
and, therefore, affirm the judgment and order of the trial court.
The North Carolina General Statutes set forth the following
requirements for attested written wills:
(a) An attested written will is a written
will signed by the testator and attested by at
least two competent witnesses as provided by
(b) The testator must, with intent to
sign the will, do so by signing the will
himself or by having someone else in the
testator's presence and at his direction sign
the testator's name thereon.
(c) The testator must signify to the
attesting witnesses that the instrument is his
instrument by signing it in their presence or
by acknowledging to them his signaturepreviously affixed thereto, either of which
may be done before the attesting witnesses
(d) The attesting witnesses must sign the
will in the presence of the testator but need
not sign in the presence of each other.
N.C. Gen. Stat. § 31-3.3 (2005). As the statute indicates, proof
of the proper execution of a will "ordinarily requires the
testimony of two attesting witnesses." In re Will of McCauley, 356
N.C. 91, 95, 565 S.E.2d 88, 92 (2002).
Alternatively, an attested written will may be probated if it
is "self-proving" _ that is, if it includes proper affidavits from
the attesting witnesses. N.C. Gen. Stat. § 31-18.1(a)(4) (2005);
Will of McCauley, 356 N.C. at 95, 565 S.E.2d at 92. In order to
make a will self-proving, there must be a notary's verification
that (1) the testator signed the will in the notary's presence and
declared it to be his or her last will and testament and (2) two
persons witnessed the testator sign the will. See N.C. Gen. Stat.
§ 31-11.6 (2005) (providing the notarial forms necessary to
simultaneously execute a will, attest it, and make it self-
The testator had four children: Mary Yelverton Moore, James C.
Yelverton, Lillie Mae Simmons, and caveator. The testator also had
a number of grandchildren, among them propounder, who is the son of
Mary Yelverton Moore. Propounder lived with the testator and her
husband for much of his childhood, until he joined the Marine Corps
following graduation from high school. The testator's husband diedin 1994. In 1999, caveator moved in with the testator, his mother,
where he remained through her death in 2003.
The testator's will was executed on 5 February 1994 and
purports on its face to meet the requirements for a valid self-
proved will under N.C. Gen. Stat. §§ 31-11.6 and 31-18.1(a)(4). In
addition to the testator's signature, three witnesses appear to
have signed it: Roberta Moore, Franklin Greenfield, and Mary
Yelverton Moore. Additionally, the four signatures appear to have
been notarized on 5 February 1994 by Teri L. Hamilton.
The evidence at trial tended to show that Roberta Moore and
Franklin Greenfield signed the will on 5 February 1994 at the
Hamilton Funeral Home in the presence of the testator and Teri
Hamilton. Neither Franklin Greenfield nor Roberta Moore had ever
met the testator before 5 February 1994. They happened to be
present at the funeral home when witnesses were needed for the
testator's will. Greenfield and Moore signed the will at the
request of Hamilton, a notary working at the funeral home. Mary
Yelverton Moore witnessed the will several days later at the Wayne
Memorial Hospital in the presence of the testator, but not in the
presence of Hamilton or any other notary.
The will provided that propounder would receive the testator's
estate. Propounder presented the will to the clerk of court on 14
October 2003, following the death of the testator. On 16 December
2003, caveator _ the testator's son and propounder's uncle _
instituted a caveat proceeding seeking to invalidate the will. On
14 December 2004, a jury entered a verdict finding that thedocument purporting to be the testator's will was, in fact, her
will and that the will had been properly executed. On 16 December
2004, the trial court entered a judgment probating the will.
The next day, 17 December 2004, the trial court entered an
order finding that the testator's will had been probated in common
form; that propounder, as executor, had advanced $17,482.16 of his
own money to pay the debts and cost of administration of the
estate; that the money advanced had become a lien on the assets of
the estate; and that in order to preserve the real property of the
testator, it would be necessary for the executor to pay the taxes
due on the property and to insure the property. Based on these
findings, the court concluded that "[i]t is in the best interest of
the estate for Kelvin M. Artis, Executor, to take possession,
custody and control over the real property owned by Mary M.
Yelverton at the time of her death in order to preserve the
property of the estate until the conclusion of the caveat
proceeding." The court (1) ordered that propounder take possession
of the testator's real property; (2) authorized him to rent the
property in order to generate funds to pay taxes, insurance, and
debts of the estate; and (3) ordered that caveator vacate the real
property unless he executed a written lease agreement with
propounder. Caveator was also ordered to refrain from removing any
of the testator's personal property upon vacating the premises.
On 22 December 2004, caveator made a motion for judgment
N.O.V. or, in the alternative, a new trial. The trial court denied
this motion in an order entered 17 February 2005. Caveator fileda timely appeal from the order of 17 December 2004 (case COA05-771)
and a separate timely appeal from the judgment of 16 December 2004
and the order of 17 February 2005 (case COA05-772).
 We begin our discussion with caveator's appeal from the 17
December 2004 ruling that caveator could not retain possession of
the testator's real property pending appeal of the caveat
proceeding. Caveator claims that propounder was seeking to take
possession of the property "not out of a desire to preserve the
property (for who better than a relative who had been living
there), but out of revenge for the filing of this caveat
proceeding." Caveator further contends that the amount spent by
the executor "far exceeds the amount necessary to preserve the
property of the estate."
Caveator, however, cites no statutes, case law, or other
authority in support of his arguments as to why the 17 December
2004 order was erroneous. We, therefore, deem his assignment of
error in this case to be abandoned. N.C.R. App. P. 28(b)(6)
("Assignments of error . . . in support of which no reason or
argument is stated or authority cited, will be taken as
abandoned."). Caveator's appeal in case COA05-771 is dismissed.
 With respect to the judgment probating the will, caveator
first argues that the trial court erred in denying his motion for
summary judgment. Our Supreme Court has previously held:
The purpose of summary judgment is to
bring litigation to an early decision on themerits without the delay and expense of a
trial when no material facts are at issue.
After there has been a trial, this purpose
cannot be served. Improper denial of a motion
for summary judgment is not reversible error
when the case has proceeded to trial and has
been determined on the merits by the trier of
the facts, either judge or jury
Harris v. Walden
, 314 N.C. 284, 286, 333 S.E.2d 254, 256 (1985)
(emphasis added) (internal citation omitted).
, since the issues in this case were decided
following a trial on the merits, the trial court's denial of
summary judgment cannot constitute reversible error. We,
therefore, overrule this assignment of error.
 Caveator next contends that the trial court erred in
denying his motion for a continuance, made at the close of
propounder's evidence, when one of his witnesses, the notary Teri
Hamilton (now Teri Mickens), had at the last minute informed him
she was unavailable to testify. Caveator contends that Ms.
Mickens' testimony was critical to his case because, as her summary
judgment affidavit stated, she would have denied having witnessed
the signatures of Roberta Moore and Franklin Greenfield on 5
February 1994 despite the will's having indicated otherwise.
Denial of a motion for a continuance is reviewable on appeal
only for abuse of discretion. In re Will of Maynard
, 64 N.C. App.
211, 221, 307 S.E.2d 416, 424 (1983), disc. review denied
, 310 N.C.
477, 312 S.E.2d 885 (1984). This Court has previously held that a
trial court did not abuse its discretion in denying a defendant's
motion for continuance when the motion was made after the case hadalready been called for trial and three of the defendant's
witnesses were absent, but the defendant had not served the
witnesses with enforceable subpoenas in order to ensure their
presence at trial. State v. Chambers
, 53 N.C. App. 358, 360, 280
S.E.2d 636, 638, cert. denied
, 304 N.C. 197, 285 S.E.2d 103 (1981).
See also State v. Oden
, 44 N.C. App. 61, 62, 259 S.E.2d 795, 796
(1979) (trial court did not abuse its discretion in denying motion
for continuance after trial had started, when defendant had not
obtained subpoena for witness whose absence was the reason for the
motion), appeal dismissed and disc. review denied
, 299 N.C. 333,
265 S.E.2d 401 (1980).
Similarly, we conclude that the trial court in this case did
not abuse its discretion. Caveator's motion for a continuance was
made in the middle of the trial, after the case had been set
peremptorily far ahead of time because propounder was stationed
overseas. Caveator knew he could not compel Ms. Mickens to testify
by service of a subpoena due to her relocation to Maryland.
Nevertheless, he made no attempt to secure her testimony through a
deposition de bene esse
N.C.R. Evid. 804(b)(1) (providing
that "[t]estimony given . . . in a deposition taken in compliance
with law in the course of the same or another proceeding" is not
excluded by the hearsay rule if the declarant is unavailable as a
witness). In light of the hardship that would have resulted from
a continuance, coupled with caveator's failure to exhaust
reasonable methods of securing Ms. Mickens' testimony, we hold thetrial court did not abuse its discretion in denying caveator's
motion for a continuance.
 The next issue raised by caveator on appeal also relates
to Ms. Mickens. Caveator contends he should have been allowed to
introduce into evidence (1) an order from the North Carolina
Secretary of State regarding Ms. Mickens; and (2) testimony from
caveator relating to this order.
The order _ dated 18 November 2004, more than nine years after
the execution of the testator's will _ states that Ms. Mickens'
notary commission was revoked effective immediately because "the
Secretary of State has determined that Teri L. Mickens notarized a
will without the person before her and notarized the signature of
a witness that was not before her." Other than this statement, the
order contains no dates or other information that would tend to
identify the will that was the subject of the Secretary of State's
investigation. In his offer of proof at trial, caveator's counsel
stated that caveator "would have testified that he had [the
notarization of his mother's will] investigated, and as a result of
that investigation received a letter from the Secretary of State .
. . revoking the notary [sic] of Terry [sic] Hamilton, now Mickens
. . . ."
We hold that the trial court did not err in excluding the
order and caveator's testimony because caveator failed to lay a
proper foundation for the evidence's admission. Although the order
references an instance where Ms. Mickens "notarized a will withoutthe person before her" and possibly a separate instance where she
"notarized the signature of a witness that was not before her,"
caveator has offered only his own testimony to tie this order to
the will at issue in this case. N.C.R. Evid. 602, however, states
that a witness may not testify to a matter unless evidence is
introduced sufficient to support a finding that he has personal
knowledge of the matter. Caveator has made no showing that he has
personal, non-hearsay knowledge such that he could testify that the
order refers to his mother's will.
In sum, nothing on the face of the order indicates that the
Secretary of State's order has anything at all to do with this
case, and caveator's offer of proof does not establish that he
could offer admissible testimony supplying the necessary
connection. Without admissible evidence laying a foundation that
the order related to the will in this case, caveator failed to
demonstrate that the order was relevant. Accordingly, the trial
court did not err in excluding the order and caveator's related
 Caveator also argues that the trial court improperly
allowed propounder and his mother, Mary Yelverton Moore, to testify
during trial about statements made to them by the testator.
Caveator bases his argument solely on our State's Dead Man's
Statute, codified as N.C.R. Evid. 601(c):
(c) Disqualification of interested
_ Upon the trial of an action, . . .
a party or a person interested in the event .
. . shall not be examined as a witness in hisown behalf . . . concerning any oral
communication between the witness and the
deceased person . . . .
The Dead Man's Statute "is applicable only to oral communications
between the party interested in the event and the deceased." In re
Will of Lamparter
, 348 N.C. 45, 49, 497 S.E.2d 692, 694 (1998).
Generally speaking, both propounders and caveators are parties
"interested in the event" within the meaning of the statute. Id.
A. Mary Yelverton Moore's Testimony
With respect to Mary Yelverton Moore, caveator challenges
testimony of Moore describing a conversation with her mother, the
testator, in which she asked Moore to witness her will at the Wayne
Memorial Hospital "sometime in February 1994":
A And [the testator] said that she
wanted me to sign her will.
. . . .
A And I told her I couldn't because
there was no notary there [at the hospital].
. . . .
A She said that she already had it
notarized and had two witnesses' signatures on
it, and there was a place for a third witness
that she wanted me to sign.
. . . .
A And I read it and I saw that there
was a seal on it, that there was two other
witnesses' names on it. And I asked her who
were the witnesses. She said she didn't know.
She had it notarized at Hamilton's Funeral
Home and the witnesses were there.
. . . .
Q . . . Did you sign the will at this
A Yes, I did. She showed me where she
signed it at.
Q She said that she had signed it?
Q And did you sign it in front of her?
Our Supreme Court has interpreted Rule 601(c) as follows:
Although a "person interested in the
event" of the action is disqualified, his
interest must be a "direct legal or pecuniary
interest" in the outcome of the litigation.
"The key word in this phrase is 'legal,' the
cases as a whole showing that the ultimate
test is whether the legal rights of the
witness will be affected one way or the other
by the judgment in the case. The witness may
have a very large pecuniary interest in fact _
as the interest of a wife in an important law
suit to which her husband is a party _ and
still be competent, while a comparatively
slight legal interest will disqualify the
Rape v. Lyerly, 287 N.C. 601, 622, 215 S.E.2d 737, 750 (1975)
(quoting 1 Dale F. Stansbury, Stansbury's North Carolina Evidence,
§ 69, at 211 (Brandis rev. ed. 1973)). See also In re Will of
Hester, 84 N.C. App. 585, 595-96, 353 S.E.2d 643, 650-51 (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), rev'd on other grounds, 320 N.C.
738, 360 S.E.2d 801 (1987). Our Supreme Court has stressed that
"[t]he interest which determines the competency of a witness under
the [Dead Man's S]tatute is a present direct pecuniary interest. .. . A mere sentimental interest or consideration or preference for
one party as against the other, not based on some direct pecuniary
interest of value, will not affect the question of the
qualification of the witness." Sanderson v. Paul, 235 N.C. 56, 61,
69 S.E.2d 156, 160 (1952).
Caveator argues that the Dead Man's Statute bars Moore's
testimony because Moore was "aligned" with propounder. At most,
any such interest of Moore regarding the outcome of the litigation
can be characterized only as "sentimental," since her son is above
the age of majority. Indeed, Moore's testimony was actually
against her pecuniary interest as she would share in the estate in
the absence of the will. Thus, we hold that because caveator has
identified no direct legal or pecuniary interest of Ms. Moore, her
testimony was not disqualified under Rule 601(c).
B. Propounder's Testimony
Before trial, the trial court denied caveator's motion in
limine requesting that the court exclude all evidence of oral
communications between propounder and the testator. Propounder
testified that after his grandmother handed him an envelope, "she
told me what it was _ because I wondered what she was giving me and
she told me, and then I actually took them out and looked at them,
and they were two wills." On appeal, caveator challenges the trial
court's admission of this testimony.
After examining the record, we can see no reason why the trial
court's admission of the challenged statement by propounder
entitles caveator to a new trial. It is questionable whetherpropounder's assertion that his grandmother told him what was in
the envelope, without any testimony as to what the testator
actually said, violates Rule 601(c). In re Will of Simmons, 43
N.C. App. 123, 129, 258 S.E.2d 466, 470 (1979) (holding that the
Dead Man's Statute does not operate to prevent "a witness from
testifying as to the acts and conduct of the deceased where the
witness is merely an observer and is testifying to facts based upon
independent knowledge"), disc. review denied, 299 N.C. 121, 262
S.E.2d 9 (1980). Even assuming, however, that propounder's
testimony was inadmissible, caveator has failed to demonstrate that
any resulting error was prejudicial.
The caveat proceeding was instituted on the grounds that the
will was improperly executed and/or the result of "undue and
improper influence and duress." The challenged testimony by
propounder does not appear to pertain directly to either ground.
Moreover, as we have already discussed, Moore's testimony _ that
the testator characterized the document as her will _ was properly
admitted, and any similar statement by propounder would thus be
merely duplicative. Caveator's assignment of error pertaining to
his motion in limine is overruled.
 In his next argument, caveator contends that the trial
judge improperly displayed partiality by questioning two of the
witnesses directly. We disagree.
The first witness was Franklin Greenfield, one of the
signatories from the funeral home. The court's questioning of Mr.Greenfield took place after both parties stated they had nothing
further to ask him. When the trial judge asked why Mr. Greenfield
was at the funeral home on the day he signed the will, Mr.
Greenfield stated that it was because a relative had died. The
judge also verified that Mr. Greenfield remembered signing one or
two documents, but that he did not know what he was signing or why
he was signing it.
The second witness was John Keller, an attorney from Legal Aid
who testified about Legal Aid's normal estate planning practices in
response to evidence suggesting that Legal Aid may have prepared
the testator's will. Mr. Keller testified on direct examination
that his office had no record of having ever prepared a will for
the testator. He then testified on cross-examination that the form
language of the testator's will did resemble the language employed
by Legal Aid. Once the parties had finished their questions, the
trial judge questioned Mr. Keller further as to Legal Aid's client
intake procedures and whether the jacket of the testator's will
bore any indication that it had been prepared by Legal Aid.
As caveator concedes, "[a] trial judge has undoubted power to
interrogate a witness for the purpose of clarifying matters
material to the issues." In re Will of Bartlett, 235 N.C. 489,
493, 70 S.E.2d 482, 486 (1952). Whether a breach of the judge's
impartiality has occurred is determined by "the probable effect on
the jury of the improper comments and not the motive of the court
in making such statements." State v. Johnson, 20 N.C. App. 699,
701, 202 S.E.2d 479, 481 (1974). In this case, our review of the challenged exchanges between
the judge and the two witnesses indicates that the judge's
questions were neither biased towards one party nor were they
geared towards eliciting particular answers from the witnesses.
The probable effect that the exchanges had on the jury was
clarification. Mr. Keller's testimony in response to the
attorneys' direct and cross-examination may have been somewhat too
technical for the jury, whereas Mr. Greenfield's initial testimony
was somewhat unresponsive. We therefore hold that caveator is not
entitled to a new trial on the basis of these exchanges.
 Caveator next argues the trial court erred in denying his
motion for a directed verdict at the close of propounder's evidence
and motion for judgment N.O.V. Caveator's arguments were not,
however, properly preserved for appellate review. Although
caveator moved for a directed verdict at the close of propounder's
evidence, he did not renew his motion at the close of all the
evidence and thus waived his directed verdict motion. Woodard v.
Marshall, 14 N.C. App. 67, 68, 187 S.E.2d 430, 431 (1972) (noting
that, by offering evidence, defendants waived their motion for
directed verdict made at close of plaintiff's evidence).
Moreover, caveator's waiver of the motion for a directed
verdict also precludes us from reviewing his motion for judgment
N.O.V. Jansen v. Collins, 92 N.C. App. 516, 517, 374 S.E.2d 641,
643 (1988) ("A motion for directed verdict at the close of all
evidence is an absolute prerequisite to the post verdict motion forjudgment notwithstanding the verdict."); cf. N.C.R. Civ. P.
50(b)(1) (providing that a party who has unsuccessfully moved for
a directed verdict may make a motion for judgment notwithstanding
the verdict). These assignments of error are, therefore,
 Alternatively, caveator challenges the trial court's
denial of his motion for a new trial, which was based on (1)
insufficiency of the evidence; (2) violations of the Dead Man's
Statute; (3) the judge's alleged failure to show impartiality; and
(4) denial of caveator's motion for continuance. Since we have
already addressed the second, third, and fourth grounds, we are
left with only the first ground, namely, the insufficiency of the
evidence. In a will caveat proceeding, the standard of review for
the denial of a new trial motion based on insufficiency of the
evidence is "'simply whether the record affirmatively demonstrates
an abuse of discretion by the trial court in doing so.'" In re
Will of McDonald, 156 N.C. App. 220, 228, 577 S.E.2d 131, 137
(2003) (quoting In re Will of Buck, 350 N.C. 621, 629, 516 S.E.2d
858, 863 (1999)).
It is well-settled that "[i]n an ordinary case, due execution
is proven by the testimony of the attesting witnesses or by a
self-proved will pursuant to N.C.G.S. § 31-11.6." Will of
McCauley, 356 N.C. at 95, 565 S.E.2d at 92 (internal citation
omitted). Here, propounder offered both evidence of a self-proved
will and evidence from attesting witnesses regarding the
circumstances surrounding the execution and witnessing of the will. Based upon our review of the evidence, caveator has failed to show
the trial court abused its discretion in determining not to grant
a new trial due to insufficient evidence of either a self-proving
will or attesting witnesses. See, e.g., Will of McDonald, 156 N.C.
App. at 232, 577 S.E.2d at 139 (holding that caveator, the non-
movant, had presented "substantial evidence of the circumstances
leading up to the execution of the will," and no abuse of
discretion was evident in refusing to grant a new trial).
Accordingly, we uphold the denial of caveator's motion for a new
Case No. COA05-771 _ Dismissed.
Case No. COA05-772 _ No error in part; affirmed in part.
Judges HUDSON and TYSON concur.
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