
113 S.E.2d 21 (1960)
252 N.C. 105
Matter of the Last WILL and Testament of S. E. HARRINGTON, Deceased.
No. 102.
Supreme Court of North Carolina.
March 2, 1960.
*23 Owens & Langley, Kinston, Robert D. Wheeler, Grifton, for caveators, appellants.
M. E. Cavendish, L. W. Gaylord, Jr., Albion Dunn, Greenville, for propounders, appellees.
HIGGINS, Justice.
Prior to 1944 the testator was the owner in fee of the Kirkman Farm in Craven County. He also owned substantial real estate in Pitt County, where he lived. On November 28, 1944, he executed a deed conveying the Pitt County lands (with the exception of a few small lots) to Edwin Harrington, Trustee, who on the same day executed a deed for the said lands to the testator and his wife, Mamie E. Harrington. It is stipulated the deed to the testator and his wife created an estate by entireties. It is further stipulated: "S. E. Harrington continued in active possession and control of the same and collected all rents and profits up until his death on July 27, 1959."
The testator, in dividing his real estate among his wife, his children and grandchildren (the latter representing their deceased parent), treated the Pitt County lands as his own. The trouble arose when it was ascertained the Craven County land passed by the will to the two sons but that the Pitt County lands, upon the death of the testator, passed to his wife as survivor.
*24 The will is challenged only on the ground the testator lacked mental capacity to make it. It is significant the only evidence offered as tending to show lack of mental capacity is the daughter's conclusion from the fact the testator attempted to devise lands in Pitt County which he and his wife held by the entireties at the time he executed his will in 1956. Is the evidence offered sufficient to present any controversy as to his mental capacity? Reduced to its final analysis, the evidence of mental incapacity rests solely on the conclusion he devised the lands which belonged not to him, but to his wife. The evidence from which the conclusion is drawn looks backward from the testator's death to the time he made his will. In order to ascertain his capacity, we must look at the situation on the date he executed the will. Assuming he understood the full purport of the doctrine of survivorship, nevertheless it was not unreasonable to suppose his purpose to divide his lands equitably would eventually be carried out.
The testator, prior to 1944, was the fee simple owner of the lands both in Craven and Pitt Counties. The effect of the transactions creating the estate by the entireties in the testator and his wife was to provide for the survivor to take all. At the time the will was executed the testator, of course, did not know whether he or his wife would survive. If he survived, the estate would go according to the terms of his will. The will made provision for the wife to take personal property and a life estate in the Pitt County lands. If she survived, and elected to take under the will, the devise to the children would be effective to pass title to them. The wife had the right to dissent from the will and take as surivor, or she had an equal right to abide by the will and take under it. Even though the widow should dissent and take the Pitt County lands as survivor, nevertheless in the final disposition of her estate she had the undoubted right to dispose of the lands, taking into account the advancements already made by her husband. In this view we hold the attempt to devise the Pitt County lands and the conclusion of his daughter with respect to his mental capacity are insufficient to sustain a finding the testator lacked mental capacity to execute a will. Under the circumstances here disclosed, the widow's dissent, filed after the testator's death in 1959, was not evidence of his lack of mental capacity to make a will in 1956. The widow's election to dissent is without probative value on the issue of mental capacity. The exclusion was proper. In re Estate of Povey, 271 Mich. 627, 261 N.W. 98, 99 A.L.R. 1183. Assignment of Error No. 1 is not sustained.
The caveators assign as error the court's charge on the first issue: "The caveators agree that it (the will) was executed according to the formalities of the law and that you shall answer that issue in the affirmative, or yes." Technically the charge is not in the approved form, although the evidence was unconditionally to the effect that all requirements of the law were strictly complied with in the formal execution and publication of the will. Nevertheless, the probate proceeding being in rem, with the burden on the propounders to show the formal execution of the will, the credibility of the evidence was at issue. In re Will of Harris, 218 N.C. 459, 11 S.E.2d 310; In re Will of Evans, 223 N.C. 206, 25 S.E.2d 556. Under the circumstances, the court should have charged in substance if the jury finds the facts with respect to the execution of the will to be as all the evidence tends to show, and so finds by the greater weight of the evidence, then the answer to the first issue should be, "Yes"; otherwise, "No." The failure to charge substantially as indicated is technical, though not reversible error. The error was invited by the stipulation. The caveators, in presenting the assignment of error, frankly state in their brief: "The caveators will concede that their ultimate success * * * will depend more on other assignments * * * as there was no evidence that the will was not duly execute and even if proper instructions had been given, the jury would probably have answered *25 the issue `yes,' and probably will do so on any new trial." Under the facts here disclosed, the technical error is not prejudicial. It was not the denial of any substantial right. In re Thompson's Will, 248 N.C. 588, 104 S.E.2d 280; In re Efird's Will, 195 N.C. 76, 141 S.E. 460.
The caveators assign as error the refusal of the court to give the special instructions requested. These instructions are based on the premise that the evidence was sufficient to go to the jury and to support an affirmative finding that the testator did not have sufficient mental capacity to enable him to make a valid will. In no view of the evidence is it sufficient to support a finding of mental incapacity. The court, therefore, was required to charge the jury if it found from the evidence, and by its greater weight, the facts to be as all the evidence tended to show, then issues, 2, 3, and 4 should be answered, "Yes." If the jury failed so to find, the answer should be, "No." The instructions left with the jury the function of passing on the credibility of the evidence. The charge given was in substance as above indicated. Coffey v. Greer, 249 N.C. 256, 106 S.E.2d 209; Rhodes v. Raxter, 242 N.C. 206, 87 S.E.2d 265; Commercial Solvents, Inc. v. Johnson, 235 N.C. 237, 69 S.E.2d 716; In re Will of Evans, 223 N.C. 206, 25 S.E.2d 556.
While a nonsuit cannot be entered and a verdict cannot be directed in a caveat proceeding, In re Will of Ellis, 235 N.C. 27, 69 S.E.2d 25, nevertheless, when the evidence offered is all one way without conflict, and subject to only one interpretation, an instruction similar to that given by the court on the second, third and fourth issues is not erroneous. This Court, in the case of In re Will of Duke, 241 N.C. 344, 85 S.E.2d 332, 336, said: "`The court instructs you the burden of that issue is upon the propounders to satisfy the jury upon the evidence and by its greater weight that the said paper writing propounded as the last will and testament of Hilda S. Duke was executed in accordance with the formalities required by law; and the propounders have offered such evidence and the court is not aware of any evidence to the contrary, and therefore instructs the jury that if you believe the evidence and all of the evidence and find the facts to be as all of the evidence tends to show, and by its greater weight, it would be your duty to answer that first issue "Yes,"' * * * it was proper for the court to give the instruction quoted above. The verdict is made to rest upon the finding of the jury upon the evidence offered."
The other errors assigned have been carefully examined. They fail to show merit.
No error.
