In Re the Will of Brown, 194 N.C. 583

192L TERM, N. 0.]

In bе of Will Bbown. H. BROWN. of GEORGE Matter of the Will 1927.) (Filed November, Appeal Raw. and Error —Constitutional sec, Supreme Constitution, IV, provisions Art. tbe Under tbe of our appeal non, in trial tbe from an vel involved Court on issue of devisavit assignments will, of a a a of of error in to is to consideration caveat confined legal law and of inference. matters Caveat—Proceedings in Rem —Parties. Wills — strictly rem, proceedings be re- a will are in and not caveat Tbe garded adversary. 3. Same —Deceased Persons —Transactions and Communications —Statutes Capacity Opinions—Party in Interest —Beneficiaries. —Mental — testify beneficiary may and com- a not to transactions under will Tbe proceedings deceased, S., but he with the munications C. observations, give opinion, as to based on bis own devisavit vel non incapacity tbe time execution of tbe mental writing propounded, of the deceased at the of tbe testify personal has bad transactions be then being part opinion, bis with him as this otherwise, a of tbe basis of when evidence properly upon is tbe trial instructions character so confined weight credibility being tbe to determine. 4. Same —Declarations—Evidence. upon tbe issue of devisavit vel non Where there is evidence disposition long of estate be to make testator bad by considered desired .the accordingly will, providing bis made a bad fact will certain regard near whom whеn admit- relations blood he held affectionate tedly mind, may upon the issue of sufficient shown evidence be recently writing propounded, death, bad made more before bis given property left his out of consideration these relations bis entire wife, provide for whom be bad to a extent. intended to less Incapacity. 5. Same —Mental admittedly person, he was a made Declarations deceased long disposing memory, showing cherished, settled sound mind will, unvarying purpose disposition property respect evidence, upon supporting competent, tbe are trial too in connection with other (cid:127) involving capacity subsequent at an issue date bis declaration, in a will from tbe time of executed remote tbe which be ground purpose, with such tbe utter variance contested incapacity. of mental 6. Same —Inferences. will, Upon of devisavit non tbe issue vel caveat large possession bis should aware of tbe testator have been impression be made estate and was under tbe erroneous the time support, question, tbe means of will that be without was almost it, capacity competent upon question made his mental to have non. of devisavit vel involved tbe issue IN THE SUPKEME COURT.

In ee Will of Brown. Capacity. 7. Wills —Mental person capacity A in law to to have make deemed sufficient understanding will when he has a his clear of the nature and extent of act, property devised, persons kind and the value the who are the of the objects bounty, natural of his in he and the manner desires dispose of it. Caveat—Judges 8. Superior Witnesses—Appeal Error. and Wills — Court — Where the trial the issue of devisavil vel non is made appear judge holding testimony judge to the trial that the of a the courts importance, him, of another district is of sufficient it is not for error telegraph witness, subject jury, subpoena, the absence the of not requesting arrange him to court so his as to attend as a witness. — — — Opening Concluding 9. Courts Speech Appeal Discretion and and Error —Wills—Caveat. Upon non, the trial of an devisavil issue vel where the evidence is conflicting, judge propounders the decisions of trial the toas whether the open conclude, or cretion, a will caveators to shall and is one within his dis- appeal. and on reviewable Brogden, J., dissenting; Clarkson, J., concurring in dissent.

Appeal Darnels, J., at of Term, propounder May 1921, No error. Beaufobt.

Proceeding probate for paper-writing, propounded as last will and testament of H. George Brown, deceased.

The issue submitted to and answered the jury was as follows: “Is dated 5 paper-writing, January, 1926, for propounded probate, every thereof, the last part will and testament of Brown?” H. George Answer: No.

From judgment the verdict, propounder appealed to the Supreme Court. McMuTlan,

P. W. J. G. B. Ehringhaus, Harry McMuTlan and Man- &ning Manning propounder. for Grimes, Garter, Ward & H. G. John H. Bonner Stephen G. Bragaw caveators. II.

CoNNOR, George J. Brown died at home in his the town Wash- on 16 ington, County, 0., March, Beaufort 1926. was born in He town on 3 May, said He was therefore his seventy-seventh at his death. year date

From he 1872, when was licensed duly as an practice attorney counsellor at law this he judge until State, appointed Court for the First Superior District, actively Judicial he 1889 continuously engaged practice profession. From to 1905 he served of the continuously judge Court. On Superior TEEM, N. O.]

In ke Will at the preceding to that office been elected 1905, having of the Justice an Associate he his service as election, began general ended terms, two Court. This service continued Supreme seek nomination at term. He did not second expiration he year, then his seventieth Being or election for another term. or otherwise. profession active continuous work in his retired from Superior of the Special Emergency Judge he as a qualified Laws chapter 125, Public Court, provisions accordance with the at terms of 1921, and from time to he thereafter, time, presided Superior State, Court various counties of the under assignments he the Governor. last and which term which he was at assigned, Tbe Court Term, 1925, Superior November presided, all During years these resided Beaufort, county. his native Washington. his town of made home the an citizen, appre- Brown as a man and as and

An estimate of Judge of State, the both as the judge Superior ciation of his services to of for and as an Associate Justice the years, Supreme Court fifteen the for found in the delivered years, may by Court sixteen address W. his to this Winston, upon presentation portrait Hon. Bobert the of 12 1927. 193 N. 859. April, portrait pre- Court on See This C., place Court Mrs. Brown. its hangs sented the appropriate In the the of the Chamber in which this Court now sits. walls Justice, of Judge words the his remarks accepting portrait, Ghief State, Brown has “left for our of his high record service to keeping worth his great and of fellowmen.” heritage At his Laura widow, death Brown left as his Mrs. Judge surviving, E. 17 C., to whom was married on De- Brown, Washington, hus- 1874. lived the intimate of cember, They together relationship band and for than of the wife more She the fifty years. propounder offered for as his last will and paper-writing probate testament, marriage. is dated 5 children born their January, No were of sisters, His heirs at law his his and are two and surviving nephews nieces, the children his sisters. the only two deceased He was - of these are in this brother sisters. These heirs at law the caveators proceeding.

The issue which is of this proceeding determinative submitted and aby consisting answered of Beaufort evidence County, upon chiefly of relatives and who had known testimony friends, and many years, both while he was strong vigorous after sickness and the infirmities of had age rendered weak feeble. in the the wit- sharp There conflict testified opinions at the trial as to the fact issue, nesses involved the wit: Brown’s mental on 5 capacity Many were January, COURT.. 586 IN THE SUPREME ee In Will said on memory mind Brown was not of sound opinion credibility pro The date; contrary. were of to the many opinion conflicting opinions of all the evidence, including bative force matters were January, 1926, witnesses as to capacity have found they for the their essentially jury. By verdict, is not 1926, propounded probate, dated paper-writing, judgment From the H. Brown. George will and testament the last assigning Court, to this has appealed propounder the verdict the of testi the admission (1) of the issue in the trial errors of the law as court the instructions (2) objection; over her mony of the court rulings excepted; (3) duly to which she jury, to the refusal she excepted; (4) the trial to which the conduct of These ordered. and a new trial be set aside that the verdict her motion by propounder’s to this Court presented are duly of error assignments this Court conferred The jurisdiction the judgment. appeal con Carolina is of North IV of the Constitution section of Article of law and in matters of error assignments a consideration fined to or not whether in order that it be determined inference legal C., 301. 190 N. sustained. In re Creecy, shall be Will of the paper-writing formal execution of The evidence tends to.show testament. his last will and Brown, as by Judge dated 5 January, 1926, will, bequeathing to constitute a is in form sufficient paper-writing Laura Mrs. wife, rеal and to his personal, all devising property, residence my E. in fee simple, including “to be hers Brown, absolutely North Carolina.” Washington, law on Market Street, office is the devisee to the will. She sole Mrs. Brown is executrix appointed Brown, of Judge the of the of all the estate will, and terms legatee, by is in this paper-writing both real and No reference made personal. nieces. sisters, his or to his or nephews all the testimony of witnesses tends to show that The uncontradicted execution of the O. with to the requirements statute, S., respect will, as an attested were of said both as a paper-writing, holograph Three whose credibility competency with. witnesses complied thereof is part testified that the questioned, paper-writing every thereto; name is subscribed handwriting the whose Judge Brown, death found, there was that after the paper-writing evidence safety- in his his valuable and effects Judge Brown, among papers it was de- box the vault of the Bank of where deposit Washington, also Brown on 5 1926. There was evidence posited by Judge January, lifetime, that said was written Brown in his paper-writing by Judge him, and that same was subscribed two witnesses signed by by his and at his no one of interested presence, request, whom is devise or the said bequest any property by paper-writing. TEEM, 0.]

In be Will oe Bkown. them, The court if charged evidence, that believed Brown, established the formal execution by Judge of the papеr-writing as his last will and if exe- and that said so testament, paper-writing, cuted is his evidence, valid him, will, unless should find from the in that the time of its respect, burden on the caveators that at being law execution Brown did not have the mental which the Judge capacity no requires contention, the execution of a will. There was no tending to show that the execution of the paper-writing will, procured undue influence. The sole contention of with caveators, respect will, to the as a validity paper-writing that at the Judge Brown, time of its execution on 5 by him, 1926, and March, 1926, thereafter until his death on 16 continuously did not have the to make and execute a for that was not capacity will, he of sound mind and at and disposing memory during said time. of their support caveators contention, offered evidence tending

show that prior when he was his Asso- serving second term as an ciate Justice of Supreme Court, Brown was strong vigor- ous, and in body mind; in the of 1919 Brown spring became ill, and that in time consequence such illness he some spent as a patient hospitals and sanatoriums; illness during was greatly depressed melancholia, and suffered from spirit extreme often fear expressing that he would find himself without means entirely for the support of himself and wife, that he become a pauper; would that he was greatly concerned about his health, frequently expressing apprehension that he would not be able return to his work on the Supreme Court, the result salary that he would be of his deprived as an Associate Justice, it difficult for him making live; this illness his mind was unsound and his bad. is evi- memory There dence that at this time possessed estate, of a largeo an yielding income in excess of his greatly salary.

The evidence further tends to show that Judge Brown recovered both illness, physically mentally, and returned to his work the Supreme Court; he resumed this work and continued to perform duties an Associate Justice until his retirement at the end of second term in 1920. After his retirement from the Court Supreme Judge Brown spent the of his larger part time at his home in Wash- ington wife, daily association with his his relatives and friends.. His physical health was good, and there any is no evidence that he was at time these during years in in depressed spirit or mind.

There no evidence tending to show that Judge any Brown suffered further illness until of 1925. spring He or presided Special n Emergency Judge at the March Term, 1925, Court Superior Henderson County, was a two-weeks term. He sick dur- became THE COURT. IN SUPREME Bbown.

In be Wiee Wednesday. court on adjourned week of the term and ing second became his mind was that this sickness There evidence result of had had whom he confused; he unable to remember with persons was Witnesses during official the court. associations, social, close both he their opinion him this term of testified that in who saw court during to enable sufficient not, sick, did after he became have mental capacity his or what know relatives were him to what he who property had, A to him. of their they relationship claims had reason for at Judge many Washington, witness who had known Brown years Brown Judge who was testified living Hendersonville, then was not himself all while he was Hendersonville. at he Washington After return Hendersonville to Judge Brown’s 1925 he went sick time. summer of quite During early was for some illness. Beaufort, Mrs. to from this C., recuperate Brown to N. He was Mrs. weeks. He and Brown remained at Beaufort several return latter Washington during days much his to improved upon C., his as had been 1925, Asheville, June. he went to August, Mrs. who Brown, He many years. accompanied by custom was to October, him until returned their early remained with had trouble home While in Asheville Brown Washington. This his sight an trouble eyes impaired with his and consulted oculist. to had was read as he been depressed by inability and he much read to inability accustomed do. Mrs. testified him. his return about Washington From great deprivation 1925, Brown remained at October, March, 1926, to his death thereafter his home. is no he undertook work any There evidence that Court of Beaufort Superior the November Term of except County. show that after his return Wash- tending

There there in Judge physical appear- was a marked Brown’s ington change so he went out ance. He became weak and so much that when feeble, the streets for social business Washington, purposes, either His condition, physical both usually Mrs. accompanied subject the fall of was the of much mental, during sympa- who him for friends, many thetic comment relatives and had known time both in his condition at this respects contrast years. his condition in former was marked. was felt and years Apprehension that he by Mrs. Brown others would not be able expressed pre- Term, at the of Beaufort Superior side November Court with the assignment Many accordance the Governor. wit- County, at the who saw him testified presiding time, nesses trial while in their Brown was not at that only body, sick opinion but of unsound mind and were time, memory. opinions also These TEEM, 0.] Bbown.

In be Will of formed from tbe witnesses personal observation and contrasts made by in bis former when appearance times, conduct tbis time and at in many was botb were strong mind. There body vigorous other witnesses offered tbe that while propounder who testified Brown was Judge at tbe time weak bis ‍‌‌​​​​‌‌​​​​‌‌‌‌​‌‌​​‌​​‌‌‌​‌‌‌​​‌‌​​‌‌‌​​‌‌‌‌‌‌‍mental faculties bad feeble, not become Tbe facts which basis these con- impaired. formed tbe are flicting opinions serious differed controversy; tbe witnesses only their inferences and conclusions as to Judge Brown’s and in condition, some instances as tbe conduct cause unusual which they observed.

There was evidence tending Brown sick dur- Judge show ing early occasions, tbe days of this time, At several Brown expressed apprehension that tbe General Assembly, be insisted was then in session, although Assembly fact tbe General did not meet during 1926, might under repeal statute which he his receiving salary Special or Emergency he stated to rela- Judge; tives and that if friends, repeatedly, this was he done, would have no as he income, dependent upon his for his salary The evi- support. dence shows that at time income from investments made and owned Judge Brown $20,000 exceeded he was in per annum, and that daily correspondence banks in which his securities deposited were This safe-keeping. shows correspondence Brown was fully advised from time to time as securities, to the total value his and as to the income from same.

A weeks few after the execution of the paper-writing him, Judge ill that became so he was to a taken hospital Washington. He remained there for several days and was then taken to his home where he remained to the date.of his death. His mental condition sickness was bad. He was sick his death, until and fre- continuously fear expressed quently would made die This fear pauper. him very unhappy. assurances of his relatives friends that his fear was groundless gave no relief. Brown was the son of his only parents, both of died whom a young he was man. had sisters, He four two of whom are dead.

Both left who children, survived Judge Brown. A son one sisters, nephew deceased Judge Brown, He Washington. lives went there from his home elsewhere in "the soon receiving State after his license practice law, at suggestion thе advice of Judge Brown, who had observed with his pride satisfaction suc- cessful career at Washington his profession. This is mar- nephew ried and has several All daughters. the evidence is to effect that the relations between Judge Brown and this nephew, wife after daughters, especially retirement from office as an Associate IN THE SUPREME COURT. ee of Brown.

In Wile affectionate. had close and been Supreme of tbe Court Justice time any relations at change no their any There was that on this There is evidence 1926, 5 or thereafter. to prior sent Brown, he Judge by was executed day, paper-writing he in which home, about a matter at his nephew, for and consulted this Assembly the General repeal to interested, wit, by was greatly his as a receiving salary Special he was the statute under which sought Mrs. Brown Judge After Brown’s death Judge. Emergency relatives, Brown’s of this None other nephew. Judge aid advice and evidence, There is law, Washington. his at lived who are now heirs 5 his relations January, 1926, show that tending prior-to to however, any normal. There is no evidence of with were and pleasant them his had on at time death. He any prior in these relations to change affection, for and recognized them many strong occasions manifested about reason their As late as relationship. their claims Raleigh, 1925, McLean, in a conversation with Governor October, Brown to Washington, Judge while his return trip on Ashеville bad; I much expect cannot to live getting old; my said: “I am health In years, I have no children of own. recent longer. my particularly live, to I have become much very since I have returned to Washington kind and have been Angus’ daughters. They very attached to wife I an interest in all and nieces and me, nephews and while feel my I I my their interest in them. have made families, peculiar feel and for will, provided will I wife my especially Angus’ and have I arranged I and what very estate, children. will leave nice with have In be taken care of give them, Angus’ daughters handsomely.” will Brown his affection for another expressed conversation Mr. Mrs. Shepherd, saying and and Brown nephew wife, well fixed had for them financially, provided were although also. occurred an interview This conversation between to a matter of McLean, great importance Brown and Governor relative D. Brown’s and Governor Angus McLean, Judge nephew, Mr. to his Judge Brown reference McLean’s cousin. The statements were will, estate, to his interest in the of his nephew’s disposition and matter. made of his insistent advice support that as before his death tending long was evidence to show There after he had 1924, seventy-fifth year, when he was in his and February, Brown was life, Judge from active business professional retired is shown his will. This making consideration giving careful Martin, Mr. G. Brown and Mr. Reid Joseph correspondence Mr. president Brown residing Raleigh, at N. 0. bankеrs, and Trust Savings Bank Raleigh Citizens National Bank and TEEM, N. 0.] "Will had Mr. Martin was cashier of the latter.

Company. with each for accounts with both banks and had securities deposited safe-keeping.

In a 0., letter dated addressed Washington, April, to Mr. in- Martin, Judge Brown wrote as follows: “You are a friend and I am to me. deed, very kindnesses grateful you your many I I sincerely hope myself. and J. G. B. will outlive wife and you my I hope mind, will bear in you happens me, case anything have made a new will this it is Box Bank of Wash- week, ington. I have one old clerk Arthur has the key, my here, Mayo, key. other I have all my Ealeigh devised estate to personal Savings Bank and Trust in trust sole Company appointed company executor. If ever hear of you my death, can come you get down the will probate here, qualify executor the company. In will is a little memento of for J. my personal regard and G. you Brown.”

In a letter at dated N. Washington, C., 1924, on-27 addressed April, Mr. J to os. G. Brown, J udge wrote as follows: “I have written will my and filed in Lock Box Bank of 40, entire Washington. My estate is personal devised to Ealeigh Bank and Trust Savings Company in trust to pay entire net income to my life, wife her during except small to a faithful annuity old servant. After wife’s it is to my death, nieces; be divided between equally my there nephews so see you will not be much trouble in administration. is a There little memento for my personal for regard you and also Eeid Martin. P. 0. The one is to out likely pan more than $3,000, P.. C. suggеsted the three on annual income estate is to likely pay the trustee well for very the trouble of it. In collecting case hear you death will my you down and get send the will and it here. There are probate a lot of secu- rities in that box Co., and also with W. H. & I Goadby New York. will hope you survive both Mrs. Brown and I am myself. very grateful to you your kindness.” great

In a letter at dated N. on 5 Asheville, C., to August, 1924, addressed D. Angus McLean, Judge Brown as wrote follows: “I intended to talk you to about the I am subject about I writing before left ... home. about I will. am my writing you wife and are your daughters

largely present interested its . . . provisions. willMy is a holograph, my deposit box the Bank of Washington. My be can handwriting I easily proven. give my wife our home place and contents in fee. After an to I annuity Pauline, bequeath my entire to personal estate the Ealeigh Savings Bank and Trust Company trustee to handle same, and entire to pay my income wife her I life. also during give power her the to make a will and dispose as much as fifty thousand IN THE COUBT. SUPBEME

In Will of Brown. Re I bequeath After her death estate in sbe wish. my any way kept to be your daughters to said trustee for each legacy substantial at 21 years as each arrives paid daughter interest and over at compound sur- among be then, If her divided legacy die before age. any sin- my I a nice token your legacy sisters. also wife viving give capita my per The residuum of estate divided cere her. love Shepherd to Brown going and nieces. share among my nephews of their respective until death and Eleanor C. be retained Whitney I have their lives. income to the mothers mothers, paid whom I girls, but as my relatives, your lovely tried to be fair to all them I have love, my great nieces, given are not but dearly nieces, my am that I with so liberally wife has been dealt specific legacies. My girls get and Nettie will your will not but if she dissent, does, sure she anyway.” their legacies 1925, ad- Washington, March, N. dated C.,

In letter written at N. Baleigh, 0., Judge Brown at Brown made dressed-to Gr. Joseph large left somewhat know, “As I have my reference to will: you my Bank and Trust because of Company estate the Baleigh Savings I will because of say, also profound you particularly, confidence in Martin.” confidence my Brown, will in written are to this letters

There references Brown, Mr. and Mr. Martin dated April, subsequently, 3 Septem- also in written at dated 1925; Asheville, dated 3 letter July, D. McLean, Washington, Angus addressed to ber, that Mr. McLean do Brown advises strongly last letter and as reason for one as to a suggestion change residence, consider a substan- very as will devises you-know, my his advice “Besides says: I endure hardly and can part daughters. tial estate to wife my your leaving Washington.” all of thought you October, 1 Brown 1925, Judge shows that as late as evidence will, previously referred to his with Governor McLean his interview estate, his he and devised bequeathed executed had him, pro- and with Brown, niеces, of Mrs. to his nephews after the death or showing There is for his sisters. no surviving visions to his nephews thereafter in his relations change to show tending any value of in the or sisters, change his or condition nieces, any and or to Brown’s decline in Judge of a marked his estate. There is evidence the fall during return to and Washington, after his condition, physical elder of the Weldon Cotton, 1925. Bev. A. presiding winter of S. and Church, of the Methodist North Carolina Conference District of the “I as follows: many years, Brown for testified Judge had known who im- fall of 1925. I had been Brown to the Judge prior had known man, stamina; strong he was physical his mental and pressed 593 TEEM, N. O.] be of Beown. In Will November —I and October In tbe fall of

mentally. 1925— marked I witb was Judge impressed noticed a difference.in I was tbe worse. was for condition; change in bis mental tbe change it to put mentally, bis losing grip, that Brown was impressed Judge conversa- and from I from observation way. got impression that tions witb him.” and strength in physical that tbe marked decline

There is evidence manifesting mental great depression, vigor accompanied by realize at times itself in loss of and chiefly memory inability an annual income an estate, large value, yielding possessed December, dated In a to a exceeding $20,000. postscript letter, I “As seem Mr. Brown Brown, Judge says: addressed to J. G-. managing properly and mentally incapable be at present physically as a great I I regard wish to that would my аffairs, say business I have take of them for charge me, favor if I could induce you ability.” absolute business your integrity utmost confidence and Mr, Shepherd, On in a letter to bis nephew, January, he “I am not says: of his need of draw- Ealeigh, speaking great money, At his receiving monthly this time he ing any salary.” salary or Emergency Judge. Special On or before 5 with his own shortly January, 1926, Judge Brown, will now offered for as his last hand, paper-writing probate wrote the to his all bequeaths testament. He therein and devises wife gives, nieces, no reference therein to his or estate, making nephews specifically his sisters. The referred to only property paper- and law shown the evidence to be office, residence writing reference made $15,000 $5,000, respectively. worth about No owned, to the bonds and securities which he then stocks, therein stocks, securities $500,000. which exceeded value These bonds and Bank on with the Citizens National deposit safe-keeping Averethen Bank and Trust the Bank Ealeigh Savings Company, Ealeigh, W. H. & New York Goadby Co., bankers, City. of Washington'and shows that he was informed as to these Brown's correspondence securities, repeated requests and that his for itemized bonds stocks, had been depositaries promptly complied statements from each with. caveators, Brown, A. D. and one of the McLean, nephew Judge

Mr. Brown at his home, he saw the morning testified that At time Brown knew him knew Mrs. an lot, knew he had house office in Brown; Washington; this is all that he witness, knew about opinion property. in the in opinion testified that Brown on this ‍‌‌​​​​‌‌​​​​‌‌‌‌​‌‌​​‌​​‌‌‌​‌‌‌​​‌‌​​‌‌‌​​‌‌‌‌‌‌‍did Judge day further He owned; that he sufficient what did not have property not know 38 —194

594 IN THE SUPREME COURT.

In re Will of Brown. be capacity, if bis toward feelings remembered bis to recall relatives, them, or to recall have the fact of bis relation to be did not then them; sufficient capacity to understand the of a will. scope and effect

The witness further by testified that be bad formed opinion contrasting Judge mental, Brown’s on that condition, physical day, with bis condition in as Judge former when be Brown years, regarded one of the ablest business be bad The lawyers and men that known. in witness detail gave the results bis observation of Brown Judge when be 1919, ill, illness, first became to bis last immediately pre- death. ceding bis He be received August, through testified that the at dated 5 mail, Washington, Asheville, C., letter at on August, 1924. The letter is Brown’s Judge addressed bandwriting, the In witness. the the at that opinion witness, was Judge time of sound mind and The witness’ memory. opinion Judge of unsound by Brown was mind on January, 1926, based, part, intentions purposes disposition with to the contrasting respect bis of bis at bis as in this written when property death, expressed letter, mind, Brown was sound in with the in the Judge made disposition dated 5 when it'is contended paper-writing be was January, unsound mind. letter in introduction of this the To the evidence by caveators, overruled, objected. The and the objection jury was

propounder the court that the letter was evidence, instructed admitted McLean, them in connection with other of Mr. testimony considered with the basis of bis opinion respect Judge Brown’s mental showing to the admission Propounder excepted condition on of the court respect of this letter to the instruction with to its con- jury. sideration further to a conversation

Mr. McLean testified with Judge Brown, July, bis Brown’s Washington, 1925, upon office at return objection to Propounder’s from Beaufort. testimony over- that it was was instructed admitted for the ruled; same pur- limitation and under same letter. witness testified pose as to Brown’s mental that bis condition was opinion formed Brown then contrasting what said to part by relative to bis with respect property, to bis the disposition intention made in the will. as bis propounded paper-writing probate of a proceeding paper-writing this State aas suit adversary will an inter regarded partes, is not but as a proceed a$ White, 180 N. C., Edwards v. ing 55, citing rem. and approving Watkins, C., 172 N. There no parties

Powell v. are such a can none who certainly withdraw or take a proceeding, nonsuit, Collins, matter where it was the start. thus Collins v. put 595 TEEM, 1927. N. C.] Brown. re car In Will contested, a will is as

N. 98. When probate paper-writing tbe C., vel non an issue of devisavit it is tbe court cause duty tbe an to sucb are no parties there Strictly submitted to jury. speaking, in obedience actors, are equally botb and caveatоrs issue; propounders Enloe v. of tbe issue. court tbe submission directing tbe order of tbe Sherrill, re Court, Bowling, 213. In of tbe In opinion 28 N. tbe C., in of tbe tbat there are no 150 it is tbat fact C., 507, N. view suggested entitled, in should be proceeding tbe usual of tbe tbe parties, term, sense has generally “In .” This been suggestion re tbe Will of as in this proceeding. adopted, in a Court, however, pro

It has tbat been held this consistently by are for tbe of a botb caveators ceeding probate will, propounders 1795, disqualifies within of C. parties meaning spirit S., tbe a witness or interested tbe event party person testifying de bis of a executor, own behalf tbe administrator or survivor against transaction or communication be person, personal ceased concerning deceased, executor, tbe witness and tbe where tbe adminis except tween or or where testi trator survivor examined bis own tbe behalf, same person concerning of tbe deceased in evidence tbe mony given Mann, transaction or In 192 N. In re C., 248; re communication. Harrison, Chisman, N. In 183 N. v. C., 420; C., 457; 175 re Pepper 80 N. C., Broughton, D. letters Mr. A. Brown’s

Notwithstanding principle, Judge who bad tbat in bis McLean, opinion one tbe caveators testified 5 con was not sound mind on and tbe Judge Mr. tbe Brown, between McLean and as testified to Judge by versations tbe stated principle were admitted evidence former, properly Norment, 84 C., 237, approved many opinions v. N. McLeary Hinton, 207; 180 N. C., delivered Court. re subsequently by Chisman, Rake C., 43; 420; v. 176 N. In re 175 Bailey, C., Bissett Pratt, 160 N. This letters C., respect straw v. is true to tbe even if it tbat communications transactions personal be held are or Mr. All Brown and McLean. these letters were ad between all Brown’s or mittedly bandwriting signed by him; they were Mr. mail. It tbat McLean tbe well be held through might received tbe receipt tbe Mr. McLean with to tbe him of testimony respect mail tbe was not transactions with letters, through personal Brown, N. C., McEwan v. and cases there cited. has held tbat generally declarations, written, been oral involving be shown in evidence tbe trial of an deceased issue bis whether sucb declarations at or capacity, before, were made on which it is contended tbat tbe deceased was of unsound after tbe date Will, 121 N. 337. It has C., mind. In re Burns’ also been held tbat a - IN THE SUPREME COURT. op

In ee Will Bbown. witness bad give wbo bas to observe tbe opportunity deceased, may bis as to bis mental v. opinion, capacity. Clary Clary, N. Either a as to bis C., may or a caveator propounder testify Norment, tbis was v. opinion upon question. supra, beld in McLeary tbe where witness bad to a want of mental in capacity testified grantor to make a and that bis formed conver- deed, from opinion deceased, sations and communications between tbe tbe it is witness and to competent prove tbe facts which tbe upon opinion Hence, formed. tbe witness to with may testify bis conversations and communications tbe deceased, when such communications in part conversations and are of tbe basis bis in order that tbe determine what opinion, jury communications, bis weight opinion, based on these conversations and is to in entitled their consideration of tbe as A opinion evidence. to tbe caveator, although party proceeding, and interested in its event, in bis may give as to tbe mental tbe de- opinion of capacity ceased, based conversations or with communications him. Hav- ing so, competent done to tbe testify to conversations and communications. Tbe trial learned was careful judge to observe tbis and to instruct tbe principle jury accordingly. Assignments of, error upon exceptions based to tbe admission and to tbe evidence, instructions of court, tbe with to tbe certain respect consideration of evidence admitted cannot be sustained. It must be assumed tbe jury, in Mr. considering testimony McLean’s with bis respect to per- sonal transactions and communications with Judge Brown, were mind- ful of instructions. tbe court’s There was other unobjected evidence, to, to show tending Judge Brown’s intentions with respect to tbe dispo- sition bis be was of sound property, admittedly mind and dis- posing memory.

We read entire charge have tbe tbe learned judge wbo at presided tbe trial of tbe issue submitted tbe jury tbis It is set proceeding. out in full tbe statement of tbe cаse appeal. Tbe contentions of both and caveators as to facts tbe which each propounder contends tbe jury should have found tbe and as evidence, to tbe law applicable facts, to these are stated therein, fully and With fairly. to tbe respect involved in issue, law tbe tbe principles instructions given to tbe are in instances in tbe identical jury many used language tbis Court these opinions principles- which are stated and All tbe discussed. instructions are in full accord with well-settled and are principles, decisions of fully by authoritative supported tbis Court. We find no confusion or in tbe inconsistency statements of law tbe or in tbe in- with respect thereto, structions contended tbe brief in tbis filed Court in tbe propounder. behalf of Assignments of error based upon instructions to exceptions jury, to. tbe failure exceptions TEEM, O.] re

In Will There are not sustained. give instructions requested by propounder, respect. no error either the effect There is no error in the instruction the jury issue, in involved considering question testamentary capacity that when to show tending should consider the evidence jury he had memory, mind and disposing sound admittedly his property expressed respect disposition intentions to the utterly executed, will, estate he then stated he had theretofore offered in the variance with made disposition paper-writing was not when, contended, it is probate, dаted find the should so sound mind and and that if disposing memory, inca- prove facts to not alone sufficient to be, variance, although such by' will, was a to be considered make fact or circumstance pacity Brown had whether or determining on 5 January, of his and estate capacity dispose property of mind and of a made when he was sound person, Declarations deceased a and long-cherished, unvarying pur- settled disposing memory, showing will, compe- the are respect disposition by of his pose property capacity the an his mental involving tent as evidence trial of issue declarations, at not from the the date, too remote time of subsequent which such on which he executed a in utter variance with will, purpose, testamentary of ground is contested the there was want capacity. the

The in viewed in its does not case, entirety, present record this and reasonable bare whether the contrast between two natural question acts or constitute evidence of or of lack of testa- expressions, insanity in and are because are different effect mentary capacity, simply in That there such a difference is separated point merely of time. with other and circumstances circumstance, appearing facts in determining all the be considered the the evidence, may jury ques- of such and cir- tion involved in the issue. In thе absence other facts of such difference sufficient as evidence cumstances, alone would be or or lack of at the date of the last act insanity testamentary capacity expression. in no

There is error in the instruction to the to the effect that jury issue, in the of involved the considering question testamentary capacity the jury tending should consider the to show January, on 5 consisted of his and his estate, residence, Brown’s of office, $15,000 $5,000, respectively, stocks, worth about bonds of securities, exceeding value net income $500,000, yielding and that the character and $20,000 annum, extent, more than while per of his is not determinative of the of testa- question value alone property be such character value mentary capacity, extent, may properly THE IN SUPREME COURT. In RE Will of Brown of considered or not sound determining whether mind and when he wrote and the disposing memory signed paper-writ Will, ing dated N. C., 138, In re Staub's “A Court the definition of approved following testamentary capacity: he has person within of if testamentary capacity meaning law, the the has a the act, clear nature and extent of his understanding the the kind value of property devised, who are persons natural his objects of and of the manner in which he desires bounty, dispose of the re Creecy, be distributed.” See In Will property 190 N. C., 301, and cases therein of this statement cited. The converse must law. necessarily

Nor is there error the instruction to effect that issue, considering question testamentary capacity involved the jury should consider the fact that by the offered paper-writing dated 5 probate, January, 1926, Judge bequeathed and devised all of wife, his real and to his fee property, and in personal, absolutely simple, nieces, and that his who sisters, nephews and are his heirs law, and the natural objects reason of ties of blood bounty, no said affection, take or estate. no part property There was error instruction, especially view of the evidence tending show of Judge declarations made Brown, when he admittedly sound mind and that in disposing memory, recognition of his relations sisters, to his and nephews and nieces, provided had his will out of them, large his “somewhat estate.” as to whether question Brown was sane or insane, 5 January, he executed the paper-writing propounded will, is not necessarily involved determinative the issue sub- question mitted to the The jury. is, testamentary whether or not he had It not capacity. is that a shall required caveator de- prove the ceased was insane in to a order establish want of testamentary capacity.

The trend of judicial on this opinion subject shows that a dis- clearly tinction should be and is made between and want insanity of testamen- A man in capacity. be tary lacking testamentary as de- capacity, fined law, thе by yet insane, not certainly ordinary within the meaning that term. The law requires mind, that he shall be sound in and of in memory order have disposing to to a will dis- capacity make his at his posing property, death, otherwise than the in law directs case of his intestacy with respect the of his disposition property. of error

Propounder’s assignment based upon her to the exception the court a sending by telegram Grady, requesting at the trial attendance as witness for caveators, cannot be manifestly The was telegram sustained. written and sent in ‍‌‌​​​​‌‌​​​​‌‌‌‌​‌‌​​‌​​‌‌‌​‌‌‌​​‌‌​​‌‌‌​​‌‌‌‌‌‌‍from the courtroom the absence of the Counsel for jury. caveators had stated the court ' FALL TERM, N. 0.] of In re Will awas Grady began since the trial had learned they presiding was then who Judge Grady, in behalf.

material witness their subpcena not subject County, in the Court of Warren Superior without trial, the could not taken a witness. His deposition justi- felt His Honor This was refused. the of propounder. consent his court to leave Grady fied, facts, requesting view these testimony have jury might the trial order that the attend complaint no cause of Propounder has just the trial of the issue. upon with to this matter. respect and conclude should open court that the caveators ruling a mat This was exception. is subject to the argument jury of its discretion. the court the exercise by

ter to be determined Will, that there 136 N. 13. The fact C., so held in In Peterson re cannot affect the dis in commоn form had been no the will probate trial of the issue with to this matter. The respect cretion of the court non, de form, in solemn proceeding probate clev'isavitvel novo. are There appeal printed pages.

The record contains noted. Full exceptions duly based assignments error, diligent learned and by briefs filed in this Court exhaustive have been careful has had our full and counsel. Each of the of error assignments out and discussed consideration. cannot be set Manifestly, in this detail opinion. or in matters of law have found error in the trial of the issue

We no Qlarlcson, As was said legal speaking inference. Justice an appeal Court In Will 190 N. where there was Creecy, C., 310, re verdict; “The case by propounder judgment an adverse It is not the law. below, tried in the court accordance with carefully jury just our determine whether the verdict of the province to law, unjust; that is a matter for the Hnder our solely jury. moral good are to be men of presumed

are the triers of the facts and There is suggestion character and of sufficient no intelligence.” to whom the issue record, jurors, to the contrary respect The judgment was submitted and whom the verdict was rendered. is affirmed. There is error.

No careful given This case has been earnest J., dissenting: BeogdeN, the con- clearly sets forth Court, consideration opinion escape I cannot However, clusion rеached and the reasons it. supporting therq not affecting the is vital error the record conviction that or also the method involving the merits of this but only particular case, be determined. testamentary capacity may standard by 600 IN THE SUPREME COURT. re

In Will of Brown. A brief of the facts is survey develop propo- the perhaps necessary sition of law which I think was the trial erroneously applied by judge.

On 5 August, 1924, the testator wrote to his a letter in regard nephew to will. pertinent my The of this “I give letter is as follows: part wife our Pauline, homeplace contents After an complete. annuity to I give my personal entire estate to the Bank and Trust Raleigh Savings as Company, trustee, to handle same and entire income to wife pay my during her I give life. also her the power to a will and of dispose make as much as thousand of fifty estate in After my any way she wish. her I death bequeath substantial legacy to said trustee for each your daughters to be kept interest and compound paid over each daughter arrives at 21 years of If die age. any before then legacy her to be divided among sisters. I also nice surviving wife a give your legacy token of sincere love for her. my The residuum of my estate is to be per divided capita among my nephews and nieces. The share going Brown Shepherd and Eleanor C. to be retained until Whitney death of their respective mothers and income to the mothers paid their I lives. have tried to be fair all my relatives, but as your nieces, I lovely girls, whom dearly love, nieces, are not but my great I have given them specific legacies. My wife has been dealt with so very liberally that I am sure will she if dissent, but she does, your girls and Nettie will their get legacies At the anyway.” time this letter was written the testator was sane. On admittedly the 5th Janu- day ary, 1926, testator executed a new will all bequeathing devising of his real and personal property to his wife. This is the paper-writing subject the controversy.

The trial permitted 5 judge letter of August be offered evi- dence and read to jury. Mr. A. witness, D. McLean, had pre- viously testified that in his opinion the testator did not have sufficient testamentary on 5 capacity January, When the letter of August offered evidence the propounder objected. The witness was asked this question: you “Do base your opinion his mental con- dition on 5 January, in whole or on part that letter?” The answered, witness I will say “No. so as to be understood: I know from, letter and from other sources that on 1926, my January, opinion the will does not what Brown represent My intended. opinion of his condition on is in part based letter, . . . but it not the basis only my opinion. part . . . basis my opinion, but letter enters my into opinion and part basis opinion connection with forms other facts. I know the letter and what otherwise intended to do estate.” The record shows this “The entry: court admits the letter evidence in support to Mr. basis 601 FALL TERM, 1-927. N. O.] of 1st ee Browh. Will as to the circumstances witb other

McLean’s connection opinion, this record further shows mental Brown.” The Judge capacity court that this is instructed the by “The letter read. The entry: jury is Mr. testimony letter offered in connection with other evidence opinion the which he forms the upon McLean with reference to grounds that the con- Brown, jury condition of and will Judge mental witness, the it no that purpose.” appears sider for other further with testator to as to conversation the permitted testify McLean, entry: The record shows this objected. The July, propounder asks objects all of this line of and for a “Propounder testimony, pre- to it had in cross- The court rules that be liminary examination. the and in the same and testimony way examination admits admitted, the ivas witness stated having same which letter purpose for letter to the that the with Brown and the Judge court conversations the his received that part opinion basis from form 1926, Brown on 5 as stated mentally incompetent January, the Thereafter the trial the contentions of caveators judge arrayed to will in the of 5 August, the referred to letter respect alleged charges the as follows: “The court charged jury you, upon it is contentions, duty jury these that the the consider right them the two and to contrast wills as the issue alleged bearing mental and the which capacity testamentary disposition mаde or intended make of his the trial Again judge property.” that on charged: charges part “The court a desire the you Brown, existed, if find from evidence it the bulk his estate you should his his ultimately namely, nieces go people, nephews, own unreasonable, was not unnatural or both natural proper, but by if in if find wishes, accordance with his you its dissent existed greater weight, by desire avoid wife to his on that he intended the bulk of his estate to own part, go peo- but it her for her their wished lifetime and benefit ple, be said Bank and Trust Company, administered protection trustee same as bear- should considered executor, when the the issue of ing capacity January, last will was made.” alleged

It is letter portions quoted from the of the record apparent case. caveators took the that the position lies the heart letter showed different intention from that ex- totally testamentary in the last will of the and it was used pressed testator, throughout standards testamentary trial as one of the capacity If the of the will of introduc- measure the validity so error, tion of this letter was it was therefore and disastrous grievous was concerned. far the propounder IN THE'SUPREME COURT. op

In RE Will Court, As pointed out in estab- undoubtedly of tbe opinion lished law in tbis State tbat a witness evidence nonexpert may give bis tbis opinion testator, to tbe mental of a and where capacity has been opinion formеd from or communications between declarations tbe witness and tbe it tbe deceased, to offer evidence competent facts law constituting tbe basis of tbe Tbe Court declares tbe opinion. as follows: “It has been written, held tbat oral or generally declarations, tbe deceased be shown in trial an issue tbe upon bis involving mental whether such made capacity, declarations were before, at or after tbe on which date it contended tbat tbe deceased was of unsound mind.” witness testified tbat 5 August, Tbe tbe letter of 1924, constituted “a of tbe bis part basis” of as to tbe mental opinion incapacity tbe testator on 5 it, Tbe court admitted and stated to tbe tbat it was admitted because it constituted a part - of tbe of tbe ground opinion of mental tbe incapacity entertained by witness. Now tbe declaration of 5 August, 1924, face, its was tbe upon sane perfectly declaration of a sane man. Can a perfectly sane declara- tion of a sane man be evidence insanity? Can life be evidence death? Can be light evidence of darkness? Can health evidence of be sickness? Can sanity evidence of ask insanity? To mind to my these questions is to answer them in tbe I negative. conceive tbe law be tbat tbe declarations of a testator made prior tbe execution of will, in controversy, are admissible in evidence tbe upon question mental but such capacity, declarations must of 'themselves contain evi- dence of mental disorder or bear upon their faces tbe indelible stamp I impairment. think, tbat tbe law tbis too, State supports tbis contention. Tbe two leading cases tbe upon subject of declarations Norment, are v. 84 N. McLeary Will, In C., 237, and re Burns’ C.,N. 337. Both of these cases are relied tbe upon of tbe opinion Court. In tbe Norment case tbe action was brought to set aside a deed made on 2 February, 1867, upon tbe ground mental incapacity undue influence. A witness, Harriet Alexander, permitted testify as to her of her opinion aunt’s mental capacity to make a deed, stating tbat grantor bad been mentally incapable since stroke of paralysis in 1859. Tbe witness testified tbat her opinion was formed from con- versations and communications between them. Tbe witness was asked to give tbe basis of her and tbis opinion, testimony excluded, for tbe rejection thereof tbe Court granted a new trial. Therefore, did not in tbat appear case tbat tbe declarations themselves bore evi- dences of mental disorder. However, tbe record tbat case discloses tbat another witness testified tbat in 1865, prior to tbe of said making deed, tbe conversations of tbe grantor “were vague meaningless. Her conversations were incoherent.” Another witness testified tbat TEEM, N. 0.] kb Will of Brown. deed, the she was invited to one occasion to tbe date of the prior carving dinner, grantor spoke

home of the that the grantor Thus, on to be carved. was no the table turkey turkey there record in case discloses original unmistakably the Norment of legal incapacity. referred themselves messengers declarations to were examined, gave In the Burns’ numerous witnesses were who Will case as to existing long their of the testator before opinion insanity the will. were the “conduct date of These based opinions An different times.” examination of language testator at record in that case all of these conversations discloses declarations the unmistakable element of a mind was deranged present. Burns “fool instance, For testified that testator talked witness he had him, said the witches were after tar ishly”; put fact, off. The as a gates cases, his fence and them other matter of keep the as general state of variant proposition law, perhaps wording, announced in the Norment and Burns cases. n cases, I Norment that the and Burns when read think, therefore, records, the of the in the light original clearly facts contained estab- the I I principle lish which contend. the confusion apprehend is the in the law due the fact that the eases undue majority influence and mental were both the incapacity involved. be that a testator a later fact that made оne will at one will at an- period other from the first as an period might different be used intimation undue undue a influence, inference of but influence does not from flow diseased but a normal the current of which mind, mind, from perfectly has been bent and by overwhelming dominating pressure diverted time, from without. a declaration made at one a Hence, showing par- is testamentary intent, showing ticular and thereafter a will made evidence, different as totally intent, be considered testamentary might undue eases of to show the the mind influence, tending warping the unlawful and force without. But I know applied fraudulent of no case mental applying solely capacity. the principle letter treated August, 1924, The declaration contained the of 5 n the court as will. If it was sensible face and so, entirely upon its nieces disposition nephews the the estate to proper natural and had the full sanction of law. The will of 5 the the disposition was also its and the entirely face, sensible the the natural and had wife of the testator proper estate Peterson, C., full sanction of the In re 136 N. law. two wills

The trial instructed the “Contrast the judge jury: alleged In the first how the issue of bearing upon capacity.” place, each the contrasting wholly having can the of two sensible documents, constitute sanction the evidence mental equal law, any impair- IN THE SUPREME COURT.

In ke Will of Brown. ment or But warrant inference of a disеased mind? there is any graver aspect. The word “contrast” used the trial means judge out or differ- point observe differences. Now what the fundamental ence between the bulk two documents? the devise of the Obviously, the estate to nieces and in the first will and the devise of nephews whole estate to In short, the wife the last. difference controlling was the fact that the wife received a small in the first and the portion entire estate in the second. So when the trial that, judge instructed jury, effect, it was the duty consider the difference between the two documents upon question of testamentary capacity, it was clearly equivalent to that the fact charging that the testator gave his entire estate to his wife, was at thereby excluding kin, blood least a circumstance to show mental An tending incompetence. exami- nation of the method of arraying contentions of the in this parties I particular, think, produces this conclusion as flight as the unerringly of a martin to his gourd or bee to his hive. I law, understand it, to the For contrary. instance, case,

Pet arson’s supra, this Court said: “In the light experience and observation of men of the best judgment and soundest we minds, can see in the nothing fact that man gave estate, produce their joint industry to his economy, wife, to show mental tending incapacity or undue influence.”

It would serve no useful to thresh over purpose the authorities or to out draw thе debate case. I only intended a brief ‍‌‌​​​​‌‌​​​​‌‌‌‌​‌‌​​‌​​‌‌‌​‌‌‌​​‌‌​​‌‌‌​​‌‌‌‌‌‌‍statement of my conviction that the case has not been tried in accordance with law and the reasons for such conviction. J., in dissent: concurring The majority opinion is written OlaeKSON,

with care and thought commensurate with the importance of the con- In troversy. this jurisdiction there is an impenetrable wall between the law and the facts. The facts to be ascertained This by jury. Court lays for down, perhaps all time, in the law. The precedents present case goes beyond what has ever before been decided by Court.

In the main opinion is the following statement: “The in this record in case, viewed its entirety, does not present bare whether question the contrast between two natural and reasonable or acts expressions, constitute evidence of insanity or of lack of testamentary capacity, simply because they are different in effect and are in separate point time. That there is such a difference merely circumstance, which with other facts and circumstances from all appearing evidence, may be considered by determining the question involved the issue. In the absence of such other facts and such circumstances, FALL TERM, 1927. O.] RE of Brown.

In Will difference alone or lack insanity would not be sufficient as evidence of or testamentary capacity expression.” tbe date of tbe last act contrast,

Tbis statement is tbe crucial Tbe point of tbe difference. if wbicb I tbink permissible, is not made in tbe not, charge “merely circumstance,” but tbe and it “right duty'1 consider capacity. Tbe learned and careful wbo tried tbis case did judge tbe prepare part of tbe charge pre hereinafter referred to. It was pared caveators and one of their fol for instruction is as prayers lows : “It is true, contended that a man by propounders, make will and then revoke or change tbis, a later one. reply caveators contend that less than two bis April, 1924, before years death, Judge Brown made a will wbicb fully reasonably disposed bis large estate and init safe put competent bis bands, recognizing moral and legal obligations of bis respect estate and for providing all those having claims it. contend that tbis will They represented bis seasoned judgment and that it was long experience; carefully thought out and prepared, evidence, disclosed by letters and safeguarded both therefrom; tbe bulk of tbe estate tbe income that tbis income amounts to $25,000 about per year, practically free from taxation; that tbis entire income was devised bis for wife her to do with lifetime, as she and in pleased, addition she was given tbe residence with household furniture and to effects fee simple, gether with tbe absolute right $50,000 disposing more as she saw fit her will, full thereby making and ample provision They for her. contend further that tbis will of April, 1924, recognized provided for tbe old colored woman, wbo served in bis Pauline, household fifty years or more, her a giving $200 legacy $40 cash and per month for her support; that to Mr. Arthur wbo had bis Mayo, acted as clerk or business agent many years, gave be tbe office on Market Street recognition of long and faithful friendship service, tbe giving of tbis office to Mr. Mayo did not impair appreciably diminish tbe annual income about bis $25,000 wife; that instead of vesting absolute "title to tbe bulk of bis estate in bis wife or bis relatives, be instead vested it in tbe Raleigh Bank and Trust Savings for her Company and their benefit and protection, to tbe end might estate carefully safeguarded; be was careful anticipate tbe cost of administration and made a contract with tbis Bank Savings and Trust Company, with wbicb be bad dealt for about many years, commissions or fees; that in tbis will of April, 1924, be did not forget A. D. Mrs. McLean and her children, of whom be was but very fond, left substantial legacies and that them, tbe residue or remainder bis estate was to bis given and nephews nieces per that share capita, is, and share alike; tbe income from tbe shares of Brown Shepherd, COURT. IN THE SUPREME of Brown. re Will

In Mrs. mothers, their togo a niece, Whitney, and Eleanor nephew, that lives, Crabtree, respectively; their and Mrs. Shepherd and Washington Bank of in the in his box this will was deposited W. Brown and advisers, Jos. G. confidential friends and close business and еffect, notified to that were Raleigh, duly Martin, Reid came to Wash G. Brown Joseph Mr. Brown, of Judge the death in been will, having never and this probate to find ington expecting and thought with this carefully and contrast change; formed of any alleged out that the contend, point caveators will, well prepared will, form to as a pass legal while will of 5 sufficient before two and a half months in less than drawn, executed badly mind, and body become feeble after he had Brown’s Judge death, what and in fact from both form that it is different entirely and The desired to do with his property. intended and really Judge duty and contentions, right these charges you, upon court wills as contrast the two alleged them and to to consider the testamentary disposi and capacity the issue hearing make his property.” or intended to Brown made tion which in a first will had its foundation alleged primary The of this basis 1924. At time he was con August, dated 5 Judge Brown, letter of “Of he states mind. this letter disposing ceded to be sane and destroy this letter as confidential and' strictly will you regard course I may time comes I done, my hdpe . . . will be but when it. God’s left it” mean that he request “destroy This quickly.” out pass in the future. The with remark change caveators, idea of a open the able skill in a took will legal ability request charge, alleged and fact, as a letter as a with stated almost basis, ingenuity founded on the reason forth as a as follows: “which contention, fully set although hands— it in аnd competent ably large put disposed safe estate— judgment seasoned obligation recognizing legal moral —his out and thought prepared safeguarded— long experience carefully — — the old for his “provided making ample provision” widow— full friendship long colored woman” “in recognition and Mr. Arthur Mayo, service,” Then on Market Street. the office giving faithful call blood relations. the contentions was stated the humanly in language of contentions hard powerful array striking excel. the will of Janu The contrast was demanded between this and legal statement: “While in ary, 1926, only short sufficient form drawn,” months as a will is “executed two and pass badly half death,” contention Brown’s and then contrast stating before mind,” it is en as a and that fact, he became body “after feeble Brown really both in and in what tirely different form fact from 607 TERM, 0.] In ee of Bbown. Wile are facts

intended and desired to do with his What property.” if contrasted in favor of which, permissible, should be propounders? alleged

The will follows: January, 1926, “Know all Brown I, men that H. Bedufort George Washington, No. do make & to last testa- County, my Ca. declare will and this I & ment; bequeath my devise to dear wife Laura E. Brown all my personal real & to property simple including be hers in fee absolutely & law my residence office Market Street No. Ca. Washington, “This I Jany. 5, also wife Executrix appoint my said will without her H. giving any bond. Geo. Beown. “Geoege H. Bbown.

“Witness: B. Ross. Jesse Habding. “Witness: Wm. B. have

“We this will signed of Geo. H. Brown in. his as wit- presence and in his nesses, and in presencе presence each other.

Haeding.

“Wat. B. “Jesse B. Ross/'

On back will: Will “Last and Testament of H. George County, Brown Beaufort N. C. Made Jany. 5, 1926. Geo. H. Beown, box “Deposited my lock among valuable my papers. Jany. This 1926. Geo. EL Witness J. B. Ross.” Beown,

On envelope: EL “Geo. Brown Last Will and Testament. Filed in this box my valuable This papers. Jany. 5, 1926. Geo. EL Beown.” inwas Brown’s handwriting legible. two witnesses — the will testified it signed witnessed they it it, was done as the writing indicated, on the will testified they in substance that, their opinion, he had sufficient mental capacity know what know property owned, relatives, appre- to know and ciate the if claims, any, him, had and if he desired make a will to know and understand the and effect of testa- scope such mentary disposition. He left his property dear who to."my had been married to wife” half century. The will was most according drawn and carefully

to the law of State, both a written and holograph will. contentions, caveators’ as above set forth, graphic picture drawn the interest of the blood relations which practically claim negatives the of the wife who had been his helpmeet for a half and made century no possible, doubt, by self-denial economy, and thrift, accumu- help late the fortune. IN THE.SUPREME COURT.

In be Will of Bkown. TERM:, N. 0.] op Beown. Wile

39—194 IN THE SUPBEME COUBT. ee

In Will oe Beown. TEEM, N. 0.] In be Will oe ihe was a call Tbe of contentions caveators powerful array by Mood Tbe instructed and tbe call were negatived jury wife. as a matter of request, whom, tbe of caveators’ а language by judge duty it common all bave "that is ihe and knowledge, right confidence them wills.” Not alleged consider and contrast two jury of a circumstance, as main but tbe opinion tbe would indicate, right duty n definite As said a heroic life duty. man, Southern whose by —tbe was an is tbe word in tbe lan- inspiration, “Duty English sublimest guage.”. Tbe caveators’ tbe call request given setting, as tbe blood, “my dear wife”—she who was of my “bone bones flesh half flesh,” charge tbe my helpmeet century tbe over —from given practical!y forgotten. Tbe minds of the the triers jurors, tbe beard tbe facts, duty tbe call in tbe only Mood relations charge given, by but those tbe penned representing blood adopted as tbe law tbe able by who tried tbe case. It was judge that charge gave tbe widow chance my little before a jury and, was erroneous law and before opinion, never held to be law in this use of jurisdiction. fact tbe tbe words a circumstance" "merely shows this is as far as that tbe of this majority go Court will now or tbe tbe future, yet ignore charge going "right duty!’ further — on tbe issue of mental capacity. Arthur referred to tbe “I Mayo, caveators’ contentions, testified: am help tbe caveators in this trying litigation; interest my lies that Then “I cannot way.” again: believe that be was of sound mind will, be all considering made tbe circumstances reversal of (bis I think be previous statements). If crazy. given be bad me tbe I officein I say tbe will could that would bave tbe opinion I of unsound mind. wоuld not.” tbe probably Yet tbe charge of tbe tbe right consider contentions as written duty them tbe requested caveators and and make contrast. Connor, well H. G. following stated Justice principle Peterson,

jurist of In re 136 N. learning experience, and wide C., “27 : “In tbe men p. (in 1904) light experience tbe and observation of in tbe and soundest we see judgment minds, nothing the best can industry joint fact this man bis of their product tbe gave estate, mental or undue tending incapacity to bis to show economy, wife, either undue influence do think tended to show influence. "We not most tbe seems, light testimony, tbe incapacity. tbe of affection and solicitude of testator.” fitting natural and expression dis- Brown was a all tbe witnesses that testified to by was His minds. He one of looking greatest man. bad tinguished in part: a witness for testified Cotton, caveators, A. Eev. S. neighbor, IN THE SUPREME COURT. In RE of Bkown. Will “I times; my saw them a together wife) good many of bis (speaking observation led me to the conclusion that there was the usual ripeness of association intensity you would see between expect couple I age. saw nothing to commend.” respect except something

In the letter of which was Judge Brown, request destroy, as a . used basis of a mind . . will, great “God’s will be done said, I I out but tell hope may pass quickly,” on, he tarried and who can that when he calmly end, looked to the this human found, mind problem puzzles the the call greatest minds, dear "my wife” life was than greater thе call of the blood relations —the half century together he The changed mind left all to his helpmeet. —and contrast, as charged the court below—the of the right duty circumstance, consider it capacity, merely a stated in the main opinion, to them almost an instruction perhaps in favor of the caveators call of the blood, and so decided. judgment it was my error and prejudicial to the of the widow. rights should not be His jurist forgotten. inner of this sanctuary great intimacy last Brown’s life the “During days wife testified: have been closer than it he said to was; our associations could not I worth, I know real wish I could all your begin now that Maura, ‍‌‌​​​​‌‌​​​​‌‌‌‌​‌‌​​‌​​‌‌‌​‌‌‌​​‌‌​​‌‌‌​​‌‌‌‌‌‌‍me, ‘I in the he said have sitting library together; We were again.’ over million to ... I had I wish I had a leave you.’ worked so hard conversa- spiritual matters, with him on such many conversations many at his I told him that I was pleasure belief, I tions, expressed my T have believed.’ He had made said, always he believed. He glad that in the required it—to read the Bible years it a practice —almost he asked me every evening go up- this illness morning, I Bible to did. times I him, Many repeated stairs and read the much hearing, and one Bun hymns enjoyed very especially, ’” to his soul, Perhaps leaving property Thou Savior dear.’ my human act of century crowning justice of half a helpmeet her But right to do blood. we here are not jurist trusting — In this we can error jurisdiction only pass the triers of fact. husband relation of and wife is sacred now family law. The The contrast in the charge, my opinion, preju- should ever be. trial wife, new should be rights granted. dicial to the

Case Details

Case Name: In Re the Will of Brown

Court Name: Supreme Court of North Carolina

Date Published: Nov 23, 1927

Citations: 194 N.C. 583; 140 S.E. 192; 1927 N.C. LEXIS 156

Court Abbreviation: N.C.