52 S.E. 929 | N.C. | 1906
This was an action to vacate and avoid a deed made by the ancestor of plaintiff to defendant John Darden, who thereafter conveyed the land and timber on the land to defendant, Branning Manufacturing Company. Plaintiff urged mental incapacity on the part of the grantor and undue influence by the defendant grantee. By consent the issue in regard to the second cause of action was answered in the negative. The jury answered the other issues for the defendant. From a judgment for the defendant, the plaintiff appealed. But two exceptions were urged in this Court. The plaintiff requested the court to instruct the jury: "It requires more mental capacity to execute a deed than a will, and while it is sufficient proof to show that a person knows the nature of the property he undertakes to will away, and to whom he wills it, that amount of mental capacity alone will not be sufficient in a person undertaking to execute a deed." His Honor declined to give the instruction, and the plaintiff excepted.
There are several objections to the instruction. There was no issue involving the several degrees of mental capacity suggested. No will had been made, nor was there any effort to set up a will by setting aside a deed. It would not aid a jury who *284
were inquiring in respect to the capacity to make the deed in controversy, to inquire into an entirely collateral question. It is true, as contended by defendant's counsel in his well prepared brief, that courts have used the expression that it required less mental capacity to make a valid will than a deed. We (383) find, however, by a careful examination of the cases cited, that the expression has been used upon trials of an issue devisavit vel non and as illustrative of the capacity requisite to the execution of a will, rather than the announcement of a principle of law. In the cases cited from West Virginia, the instruction was given and sustained. We find no case in which it has been held error to refuse to give it. It is entirely competent for counsel to argue the proposition as illustrative of the degree of capacity necessary to the execution of a will, but we can not see how it would, if established and accepted by the jury as correct, aid them in answering the question propounded, whether the grantor had sufficient capacity to execute the deed to the defendant. It is elementary that instructions involving abstract propositions of law, having no reasonable connection with or bearing upon the testimony, should not be given and that it is not error to refuse such instruction. It is by no means clear that the expression, carefully considered, is correct. To execute either a will or a deed, it is abundantly established that the party must have sufficient mental capacity to understand what property he is disposing of, the person to whom he is giving or selling, and the purpose for which he is disposing of the property. In Smith v. Beatty,
The judgment must be
Affirmed.
(385)