267 N.C. 48 | N.C. | 1966
The caveator’s first assignment of error is to the following question propounded to Dwight S. Jones, one of the sons of the decedent and one of the executors of his will: “From your association and conversation with Mr. Claude E. Jones, did you form an opinion satisfactory to yourself as to whether or not Mr. Claude E. Jones, on April 24 of 1959, the date he executed his will, had sufficient mental capacity to know and understand the nature and extent of his property, to know who were the natural objects of his bounty, and to realize the full force and effect of the disposition of his property by will?” This same question was propounded to this witness with respect to the mental condition of the decedent on 22 December 1961, the date the decedent executed the codicil to his will. The witness testified that he did have an opinion and that he felt the testator knew what he was doing.
It is clear, we think, the object of these questions was to establish the mental condition of the decedent on 24 April 1959 and on 22 December 1961. Moreover, there can be no question about the fact that the instruments dated 24 April 1959 and 22 December 1961 were the instruments under attack in this proceeding. This Court has held that where the execution of a will has been formally proven and admitted in evidence, such instrument is prima facie the will of the decedent and the caveator is required to put on evidence to impeach it. In Re Broach’s Will, 172 N.C. 520, 90 S.E. 681. Ordinarily, however, in a caveat proceeding the purported will or codicil should be referred to as the “purported will or codicil” or the “paper writing” until the jury renders its verdict. In Re Will of Isley, 263 N.C. 239, 139 S.E. 2d 243. It is difficult to conceive, however, how the caveator was prejudiced by the questions as posed. This assignment of error is overruled.
“Q. Did he know who the normal, natural persons were to receive his gifts, who the next of kin were, his relatives were, what his responsibilities were?
“Q. Do you have an opinion?
“A. Yes.
“Q. All right, what is your opinion?
“A. That he was confused and did not realize or did not know anything about this will.”
Objection sustained and motion to strike allowed. Exception.
"Q. Mrs. Jones, you really don’t know anything at all about the signing or the execution of the will on April 24, 1959, do you?
“A. Mr. Jones did not tell me. His will was made in ’58. He had gone over it with me numbers of times. But as for this will being made up at the office, and this codicil, he didn’t tell me anything about it, because he didn’t know anything about it.”
The CouRT: “Now, members of the jury, you will not consider that portion of the witness’ testimony in which she says that Mr. C. E. Jones did not know anything about the making or signing of the will in ’59 or the codicil in ’61.”
To this instruction the caveator excepted.
“Q. Now, Mrs. Jones, the question I am asking is referring again to the natural objects of his bounty, which definition I explained to you previously. * * * Did he know his children, his wife, and responsibilities, and so forth?
“A. Oh, yes, I think he did.”
This witness testified that the decedent worked regularly through 22 December 1961, that he went to the office every day, or practically every day, but he was not as active in the work as he was at one time. We find no prejudicial error in the exclusion of evidence to which exceptions were taken under this assignment of error, and it is overruled.
The caveator assigns as error the refusal of the court to strike answers of witnesses testifying for the propounders, each of whom testified that he or she had an opinion as to whether or. not the
It is not necessary for counsel to compress into a single question every element of approved factual tests of testamentary capacity or lack of it. Nor is it required that a witness include all these elements in the response. The above answers were clearly admissible. In re Will of Tatum, 233 N.C. 723, 65 S.E. 2d 351; In re Will of York, 231 N.C. 70, 55 S.E. 2d 791, and cited cases. This assignment of error is overruled.
The caveator assigns as error the admission in evidence of pro-pounders’ Exhibit No. 3, a will of Claude E. Jones dated 3 December 1958, for the limited purpose of showing the mental capacity of the testator. The instrument dated 3 December 1958 was executed less than six months prior to the execution of the purported will dated 24 April 1959. Moreover, the caveator all through her testimony insisted that her husband’s will was the one executed in 1958. As heretofore pointed out in the statement of facts, there is no substantial difference in the instrument dated 3 December 1958 and the purported will dated 24 April 1959, except that after the execution of the prior instrument the testator and his wife sold the lot on Robin Hood Road which had been devised to the caveator in the will dated 3 December 1958. Therefore, in the purported will executed on 24 April 1959 the decedent, in lieu of the property which had been sold, bequeathed to the caveator 400 shares of the capital stock of the Atlantic Greyhound Corporation. No other material change was made in the instrument executed on 24 April 1959.
In the case of In re Will of Franks, 231 N.C. 252, 56 S.E. 2d 668, the caveators challenged the admission of testimony by an attorney who had prepared a will for the testator in 1937 and redrafted the instrument at the request of the testator in 1940, making certain minor changes therein, none of which, according to the testimony, affected or in any way changed the devise under attack. This Court held the evidence was admissible on the issue of mental capacity and undue influence. In the instant case, however, there is no evi
We hold that the introduction of the previously executed will, which the caveator contended in her testimony was a valid will executed by the decedent, was not prejudicial, and this assignment of error is overruled.
The caveator assigns as error the following portion of the charge:
“* * * rests upon the caveator to satisfy you, the jury, by the greater weight of the evidence that at the time the said Claude E. Jones signed and executed the paper writing on April 24, 1959, that has been offered in evidence as Propounders’ Exhibit No. 1, that he was incapable by reason of his mental incapacity to know and comprehend the nature, character and extent of his property, who were the natural objects of his bounty, how he was disposing of his property, the effect such disposition would have upon his estate.”
The above instruction was followed immediately by the following:
“Now, members of the jury, later in my discussion of this issue I will tell you, or go into more detail as to what the caveator must establish.
Now this, * * * has been expressed in a different way. A person has sufficient mental capacity to make a will if he comprehends the natural objects of his bounty, understands the kind, nature, and extent of his property, knows the manner in which he desires his act to take effect, and realizes the effect his act will have upon his estate. Now, * * * the lack of any one of those elements would render the testator incapable under the law of making a will."
The court further instructed the jury on issue No. 2 that the burden of proof was upon the caveator and:
“* * * if the caveator has satisfied you from the evidence and by its greater weight that on April 24, 1959, Claude E. Jones signed and executed the paper writing which has been introduced in evidence as Propounders’ Exhibit No. 1 as for his will and at the time he signed this paper writing he did not comprehend the natural objects of his bounty, or he did not understand the kind, nature, and extent of his property, or he did not know the manner in which he desired his act to take effect, or he did not realize the effect his act would have upon*55 his estate, then you will have found that Claude E. Jones did not have the mental capacity to make and execute his will, and it would be your duty to answer issue No. 2 ‘No.’ ”
A similar instruction was given on issue No. 5 with respect to the codicil.
In our opinion the jury was not misled by the instruction given in respect to the burden of proof on issues Nos. 2 and 5, for that, as pointed out above, immediately after giving the instruction upon which this assignment of error is based, the court charged the jury with respect to the elements necessary to show mental capacity to make a will and then added, “the lack of any one of those elements would render the testator incapable under the law to make a will.” The court then on each of the issues Nos. 2 and 5 gave the proper instruction as to what the caveator must prove to negative testamentary capacity and recited the elements involved with the word “or” between each of the elements.
In the opinion in In re Kemp’s Will, 234 N.C. 495, 67 S.E. 2d 672, the trial judge placed the burden on caveators to show all the essential elements of testamentary capacity. The trial court then stated the requirements for mental capacity in a proper form, which this Court said would have justified a holding to the effect that the improper statement was harmless upon a contextual interpretation of the charge except for the fact that after giving the correct instruction the trial court twice repeated the erroneous instruction.
In our opinion, when the charge of the court in the trial below is considered contextually it presented the law of the case to the jury in such manner as to leave no reason to believe the jury could have been misled. Strong’s N. C. Index, Appeal and Error, § 42, citing Newton v. McGowan, 256 N.C. 421, 124 S.E. 2d 142; Gathings v. Sehorn, 255 N.C. 503, 121 S.E. 2d 873, and scores of other cases. See also In re Will of Efird, 195 N.C. 76, 141 S.E. 460.
An examination of the remaining assignments of error, in our opinion, presents no prejudicial error that would justify a new trial, and they are overruled.
In the trial below we find
No error.
