44 S.E.2d 867 | N.C. | 1947
Issue of devisavit vel non, raised by a caveat to the will of Bell Eddleman Kestler, late of Cabarrus County, based on alleged mental incapacity and undue influence. *216
The will of the deceased was probated in common form on 17 October, 1946, having been offered for such purpose by Hamp Russell, principal beneficiary and executor named therein. The propounder is a stranger in blood to the deceased.
Thereafter, on 12 November, 1946, Odessa S. Williams, a niece of the testatrix, filed a caveat to the will, alleging mental incapacity and undue influence on the part of the propounder. Interested parties were listed and duly cited. The issue was transferred to the civil issue docket; and upon the hearing, the caveat was sustained on both grounds, the jury answering that the testatrix was incapable of making a will at the time of its execution, and that the paper writing propounded was procured by the undue influence of the propounder.
From judgment setting the will aside, the propounder appeals, assigning errors. Only two exceptions need engage our attention, the one relating to the competency of opinion evidence, the other to the correctness of the charge.
1. The will under caveat is dated 18 March, 1946. The lawyer who drew it says it was prepared on that date, and it "might have been signed a day or two later." The testatrix died nearly eight months thereafter. Her husband, Simon Kestler, predeceased her by more than a year. He died sometime after 14 June, 1944 (on which date he and his wife executed a deed to Maude Gibson).
Odessa Williams was reared in the home of the Kestlers. She came there when she was 3 years old and stayed until she was 28. She says she spent a week with her aunt after her Uncle Simon's funeral. It was during this visit, according to the witness, that Aunt Bell "told me they had papers made out that I would get what they had — if anything happened to me my niece would get it." The purpose of this evidence was to lay, in part, the foundation for her opinion that her aunt was consciously incapable of making a later will totally at variance with this declaration. In re Willof Lomax,
Nor does it appear to be too remote in point of time. In re Will ofHargrove,
2. The following excerpt from the charge forms the basis of propounder's principal exception: "If it is proved to you by the evidence that she did not have a sound mind and disposing memory at the approximate time of making the alleged will, then it would be your duty to find that she did not have testamentary capacity to make the will in question."
Of course, testamentary capacity at the time of the making of the will is the test, In re Will of Hargrove, supra, but here the record shows a probable variation of several days between its preparation or date, and its publication. "Ordinarily, the question of a few days might not be capitally important, but this would depend entirely upon the circumstances of the given case." In re Will of Ross,
3. The propounder is named as the principal beneficiary and executor of the will. He was a stranger in blood to the deceased and often ministered to her wants after her husband's death. He joined with a nephew in hiring Willie Miller to stay with her. He was a constant visitor in her home. The jury has found that the will was procured by his undue influence. In reWill of Mueller,
If the deceased were incapable of making a will, the manner of its procurement would seem to be immaterial.
The validity of the trial will be sustained.
No error.