96 S.E. 648 | N.C. | 1918
The action was brought to set aside a deed alleged to have been executed by Mrs. Nancy Bailey to her son, C. W. Bailey, who is the defendant, on 12 August, 1914. Mrs. Bailey was about 70 years old when she died, 30 August, 1914. She was feeble for some time before her death, and had two falls — one which broke her arm, and the other her leg or *44 hip, the latter seeming to have caused or hastened her death. There was testimony offered by the plaintiff of her bad mental and physical condition, and of her want of sufficient mental capacity to execute the deed, which was admitted by the court, but certain other testimony of a like kind was excluded. If it was competent and relevant, its exclusion, of course, was error, and the question is, therefore, whether it was admissible. The following, which is taken from the record, will show the nature of the proof which was tendered by the plaintiff, and the rulings of the court thereon:
Mrs. Hattie Hathaway, witness for the plaintiffs, was asked this question by them: "What, in your opinion, was the mental and physical condition of Mrs. Nancy Bailey after she was hurt the last time?" Defendant objected. Objection sustained, and plaintiffs excepted.
The witness, if permitted to answer the question, would have testified that her grandmother was very feeble; that she was confined to her bed the entire time after having the last fall, and that her mind was very feeble and at times wandered.
C. A. Morgan, witness for plaintiffs, was asked this question by them: "What, in your opinion, was the physical and mental condition of the deceased, Nancy Bailey, at the several times you were there, between 30 July and the first of September?" Defendant objected. Objection sustained, and plaintiffs excepted.
The witness, if allowed to testify, would have stated that her physical condition was very bad; that she was confined to her bed all the time after the second accident, up to her death; that she suffered a great deal and was unable to move in any position in the bed; that she was old and had been feeble before this time, and that this second injury had made her much weaker and more feeble; that her mental condition was also bad, and that a portion of the time she was unconscious.
The following question was asked the witness by the plaintiffs: "What, in your opinion, was her mental condition during this time — that is, did she, in your opinion, have mental capacity to execute a deed — that is, to know what act she was doing and to comprehend the same?" Defendant objected. Objection sustained, and plaintiffs excepted.
If allowed to answer the question, the witness would have said that, in his opinion, after the second injury, Mrs. Bailey was not mentally capable of executing a deed; that she did not have the mental capacity to understand her act or to know what she was doing.
Mrs. Willie Bissett, witness for the plaintiffs, was asked this question by them: "State if morphine tablets were given to your mother during her last illness." Defendant objected. Objection sustained, and plaintiffs excepted. *45
If permitted to answer the question, the witness would have stated that these tablets were given continuously and frequently to her mother, whenever she was apparently suffering; that more than one box of tablets were given her.
The witness was asked the following question: "State whether or not, from your observation on the 12th day of August, 1914, your mother had the mental capacity to understand the nature of the execution of a deed, its scope and effect, or its nature and its consequences, and if she had the mental capacity to know what she was doing and to contract understandingly." Defendant objected. Objection sustained, and plaintiffs excepted.
If permitted to answer, the witness would have said that, in her opinion, the deceased did not have that capacity.
It appeared that Mrs. Bailey had fallen twice before the date of the deed.
Dr. Dickinson had testified, as a medical expert, that the administration of morphine to a patient for a long time would deteriorate the body and mind in every way, and that the doctors were compelled to use the drug and chloroform in her case to relieve the pain and to keep her quiet, and to prescribe the use of it for that purpose. The plaintiff proposed to show by a witness that morphine had been given to Mrs. Bailey during her sickness, about the time the deed was executed. The question put to the witness was: "State if morphine tablets were given to your mother during her last illness." Defendant objected. Objection sustained, and plaintiffs excepted. If permitted to answer the question, the witness would have stated that these tablets were given continuously and frequently to her mother, whenever she was apparently suffering; that more than one box of tablets were given her.
There was a verdict for the defendant and a judgment thereon. Plaintiffs excepted and appealed. After stating the case: The testimony offered by the plaintiffs as to the mental capacity of Mrs. Bailey, the grantor in the deed, was competent and material, and it was error to exclude it.
We were informed at the hearing that the ruling was based on the ground that the proposed evidence involved the stating of a transaction or communication between the witnesses, who were parties to the action, and the deceased, but we do not think it does have that effect, in the true sense of the law, which generally excludes such transactions and communications. We recently said, in the case of In re Chrisman's Will, *46
It was held, though, in that case, that the rule did not apply when the validity of the will was assailed for undue influence, when the question involved a transaction or communication with the deceased (
The case of Brown v. Adams,
It follows that there must be another trial because of the error in excluding this testimony, which was competent. But we may properly add that in the questions asked and the answers that would have been given if permitted by the court, we do not see any reference to transactions and communications with the deceased. The opinions of the witnesses may have been derived from other sources.
The testimony as to the administration of morphine and chloroform was also improperly excluded. With the evidence of the medical expert, it tended to show the weakened state of the testator's mind and was some proof of mental derangement and incapacity.
New trial. *48