Bost v. Bost

• Court: North Carolina Supreme Court
• Writing for the Court: SMITH
• Citation: Bost v. Bost, 87 N.C. 477 (N.C. 1882)
• Decision Date: 31 October 1882
• Parties: O. P. BOST and others v. J. L. BOST and others.

87 N.C. 477

O. P. BOST and others

v.J. L. BOST and others.

Supreme Court of North Carolina.

October Term, 1882.

OPINION TEXT STARTS HERE

ISSUE of devisavit vel non, tried at Fall Term, 1882, of CATAWBA Superior Court, before Avery, J.

Plaintiffs appealed.

Messrs. M. L. McCorkle, Hoke & Hoke, and Folk and Cline, for plaintiffs .

Messrs. Hagwood & Haywood, for defendants .

SMITH, C. J.

The rulings presented for a review upon this appeal, are made upon the trial of the issue as to the execution and validity of the script offered for probate as the last will of Joseph Bost, deceased, and opposed by the caveators. The jury returned a verdict against the propounders, finding the script not to be the will of the decedent, and from the judgment thereon they appeal.

1. The first exception appearing on the record is to the allowance of the following question, put by the caveators to a witness, who had interviews with the deceased during his last illness, and opportunities for ascertaining his mental condition:

In your opinion did Joseph Bost, at the time the will was executed, have mind and intelligence sufficient to enable him to have a reasonable judgment of the kind and value of the property he proposed to will, and to whom he was willing it?

It does not appear what answer, if any, was made to the inquiry, and as objection only lies to the evidence elicited by an improper question, as tending to influence the verdict, when no response is given the question becomes harmless and the exception to it without force. If, however, it be assumed that an answer favorable to the contestants was returned, and an opinion expressed that the deceased did not possess the mind and intelligence described, and that this was considered the legal measure of testamentary capacity, the question pursues the very words of the charge on this point delivered to the jury in Lawrence v. Steel, 66 N. C., 584, and which, upon exception of the propounders, was sustained on an appeal to this court.

It will be noticed, moreover, that the instruction was given in answer to a prayer for a charge in the words used, and approved in Horne v. Horne, 9 Ired., 99, which was refused.

But if the degree of intelligence described is beyond that required in a testamentary act, the principle laid down in the charge to the jury is entirely free from complaint or criticism coming from the appellants. They were directed that if the deceased had at the time of executing the paper-writing sufficient mental capacity to understand the nature and character of the property disposed of, who were the objects of his bounty, and how he was disposing of the property among the objects of his bounty, then he was capable of making a valid disposition of his property by will. This definition of testamentary capacity is in harmony with former adjudications. Horne v. Horne, supra; Moffit v. Witherspoon, 10 Ired., 185; Paine v. Roberts, 82 N?? C., 451; Barnhardt v. Smith, 86 N. C., 473.

But aside from these considerations, it was certainly competent to probe and ascertain by this and other germane inquiries, the scope and extent of the intellectual faculties of the deceased, and whether they come up to the measure demanded for effectual disposition of property by will, and this is all that was permitted by the court. The question and response do not determine the standard, but extract such information as may be needed in its application. The exception was properly overruled.

2. The next exception is to the admission of the testimony of the widow of the deceased, who had been introduced by the caveators and testified to conduct indicating an impaired and unsound mind in her husband. On her cross examination she had been asked, and, after objection from the propounders, been permitted to speak of occasional interruptions in the relations of the deceased towards the legatee, John F. Bost, his grandson, and to explain the reasons for giving him only the small legacy of $1.00. There had been evidence of kind and parental relations subsisting between the parties. This, and that received in rebuttal, were offered upon the point of testamentary capacity.

In connection with this evidence, and upon the re-examination of the witness, she was allowed to testify after objection from the propounders (and this is the subject matter of the exception we are now considering), that the father of the legatee, who was killed during the late civil war, was dutiful to the deceased and the deceased affectionate towards his son.

The proof previously offered, in our opinion, authorized an extension of the inquiry into the relations between the grandfather and father of the legatee, as of the same nature and accumulative on the point of the alleged unnatural exclusion of the legatee from a fair share of the...