In Re Will of Fowler
74 S.E. 117
N.C.
1912
Check Treatment
Walker, J.

The ruling of the court by which the testimony of Rena Jackson was excluded was erroneous. Her interests will be adversely affected by the result of this proceeding if the will is set aside. She testified against her own interest, and in the case of In re Worth’s Will, 129 N. C., 223, it was held that by reason thereof she is not disqualified by Revisal, sec. 163 (Code, sec. 590), to testify, as the prohibition of the statute only extends to -those eases in which the witness testifies in her own behalf or interest, which clause was not in the original *207 section 343 of the Code of Civil Procedure, but is in The Code, sec. 590, and Revisal, see. 1631. Tbe case, therefore, in this respect, is not governed by Linebarger v. Linebarger, 143 N. C., 229, and Hathaway v. Hathaway, 91 N. C., 139. In those cases it was held that it was incompetent to prove by an interested party, under Code, sec. 590 (Eevisal, sec. 1631), declarations of the testator made after the execution of the paper, for the purpose of showing that it was obtained by fraud or undue influence. It was not decided whether evidence from a competent witness would be admissible to show such declarations, though it was held in the Linebarger case that prior or contemporaneous declarations, proven by such a witness, would be admissible. But such declarations — that is, those subsequent to the execution of the will — were held to be competent in Howell v. Barden, 14 N. C., 442, in able and exhaustive opinions by Chief Justice Henderson and Judge Ruffin, and the decision was approved in Simms v. Simms, 27 N. C., 684. In the last case, Chief Justice Ruffin said: “It must, of necessity, in every case be inquired whether the paper be the will of the party deceased; whether he had capacity to make a will, and meant to dispose of his estate by the particular script propounded. Such is the law even as to attested wills; for it is competent to show, by subsequent declarations of the supposed testator, that he never assented to the instrument as his will, but that it was obtained by duress or fraud.” The Howell case holds it to be competent to show, by subsequent declarations ef the testator, that he did not have a disposing mind or a free will, as that the will was obtained by “fraud, duress, or undue influence” — in other words, that his free agency was destroyed. When the witness, by whom it is proposed to prove the declarations, has an adverse interest to be subserved, it is not material to inquire as to the extent of that interest. Campbell v. Everhart, 139 N. C., 503. But Rena Jackson testified against her own interest, according to the admission. A witness, though interested, may testify as to the state of the testator’s mind, his sanity, or even his mental capacity or condition, and may prove his acts and declarations for the purpose of showing the basis of his opinion in regard thereto. This was expressly held in McLeary v. Norment, 84 N. C., 235.

*208 We think the court erred in Charging the jhry that there was no evidence of undue influence, even if Rena Jackson’s testimony is excluded.- There was evidence that the testator was 74 years old and was sick and very feeble; that those in whose favor he made the second will were the only persons present when the will was executed, except the witnesses. His wife was in a perfectly helpless condition. There was much evidence to show undue influence besides that contained in the extracts we have made from the case; but what there appears is sufficient, if accepted as true, to show his depressed mental condition, and that he was under some dominating influence, from which he could not rid himself. J. P. Jackson and Forest Barnes were his sons-in-law, and he was living with Jackson, and there is evidence tending to show that he was under his controlling influence and unable to resist it. Jackson was heard by one of the witnesses to say to him: “Mr. Fowler, if I were in your place, I would make my mil over again; it is not like it ought to be; I would make another and tear that up.” It is, at least, probable that this old and feeble man was referring to Jackson’s power over him and his own helplessness and abject submission to his will and dictation, in what he said to the witnesses Will Smith and Edna Fowler, and other witnesses who testified to the same effect. He said to the witness David Gregory: “I am mighty bad off. I have done something that has hurt me to the heart. I made my will and was forced to make another, and it is wrong.” This was during the week before he died. We cannot resist the conclusion that there was sufficient evidence for the jury to consider, upon the question of the testator’s mental capacity, and also of undue influence, which subjected him as a helpless and unresisting victim to the overmastering will of another. The cases of Linebarger v. Linebarger, supra, and Lee v. Williams, 111 N. C., 200, relied on by the learned judge, are not authorities against our conclusion. There was no such evidence in those eases as we have in this. The facts disclosed by this record, if found by the jury, are clearly sufficient to establish that an undue, and therefore fraudulent, influence was exercised o'ver this man, enfeebled by old-age and bad health, and without the aid of those who could give him disinterested *209 counsel and advice. Amis v. Satterfield, 40 N. C., 173; McRae v. Malloy, 93 N. C., 154. Tbe relation between these parties, of control on tbe one band and dependence on tbe other, made tbe task of overcoming and destroying bis volition and free agency an easy one. Tbe evidence was fit to be submitted to tbe jury. Using tbe language of Judge Henderson in Howell v. Barden, supra: “It is not for me to say bow much such evidence ought to weigh, having, as I have elsewhere observed, no weights and measures for my own mind. It must, under tbe circumstances of each case, be left to tbe judgment and discretion of the jury, as rational men; if they believe it, they will give it effect; if they do not believe it, of course they will pay no attention to it.”

It was not necessary to submit the second issue, as tbe questions of mental capacity and fraud or undue influence can be tried and determined under the usual issue in such cases, that is, tbe first issue in this case.'

There was error in tbe ruling and charge of tbe court.

New trial.