Gamble, In re

• Decision Date: 23 May 1956
• Docket Number: No. 243,243
• Citation: 244 N.C. 149,93 S.E.2d 66
• Parties: In the Matter of John GAMBLE, Respondent.
• Court: North Carolina Supreme Court

Page 66

93 S.E.2d 66

244 N.C. 149

In the Matter of John GAMBLE, Respondent.

No. 243

Supreme Court of North Carolina.

May 23, 1956

Sedberry, Clayton & Sanders and Hugh M. McAulay, Charlotte, for respondent-appellant.

William H. Booe and Blakeney & Alexander, Charlotte, for petitioner-appellee.

PARKER, Justice.

The petition filed herein on 1 August 1955 by J. Arthur Gamble, a nephew of the respondent John Gamble, alleges that John Gamble is incompetent from want of understanding by reason of physical and mental weakness on account of old age to manage his affairs, that recently he has committed great waste of his estate by purported sales and conveyances of his property and by gifts of substantially all his money, and prays that a trustee be appointed to preserve his estate and to recover this property.

Petitioner's evidence tends to show that on 26 March 1955 the respondent conveyed by three deeds all of his real estate to Carrie Donaldson Knox as gifts, subject to a life estate in all the property reserved to himself. John Gamble, who was examined as a hostile witness by petitioner, testified that he had raised Carrie Donaldson Knox from a child two years old, that she had lived with him 20 or 25 years, and had done more for him than all his kinsfolk put together.

The petitioner J. Arthur Gamble testified as a witness in behalf of the petition. On recross-examination he testified as follows: He did not know whether his Uncle John had made a last will and testament in which he left substantially all his property to him and his brother James. He doesn't remember that he testified in the other hearing that that was true. He and his brother brought John Gamble to Mr. Alexander's office, that he knew his uncle did have a will, and he knew that John Gamble left something with Mr. Alexander for Mr. Alexander to deposit with the Clerk of the Superior Court. He believes the will was written by a lawyer in Statesville, but he was not present when it was written, and does not know its contents. On crossexamination Arthur Gamble testified: 'My whole purpose is not to try to get my old uncle declared mentally incompetent, then to have a proceeding brought through a trustee to set aside the deeds to Carrie Donaldson Knox, so that I and my brother can get that land. I am just looking after his interest in it. I want some way to take care of his interest in the land for his benefit, not mine.' Later on in the trial Arthur Gamble was recalled as a witness, and testified: 'I know that something was deposited with the Clerk of the Court called a will, but I do not know the contents of it.'

Henry Washam, a witness for the respondent, testified that in the hearing before the Clerk of the Superior Court he heard J. Arthur Gamble testify to the following: 'Well, this will was brought up, he mentioned that he and his brother James, about them being on that will. I can't remember whether Arthur said he read the will or not. What I heard him say was that he and his brother James were mentioned in the will.'

The petitoner read to the jury a transcript of the testimony of John Gamble, the respondent, when he was examined as an adverse witness by petitioner in the hearing before the Clerk. The Court allowed it to be read for the purpose of showing John Gamble's mental condition at the time. This appears in his direct examination by Mr. Alexander, counsel for petitioner:

'Q. Yes, sir; well, now, let's go back to 1940 and 1944 and in there; did you make a will back in those days leaving everything to Arthur? A. Not as I know of.

'Q. You don't recall it at all? A. No, sir.

'Q. Do you recall bringing that will to me in my office, yourself, and handing it to me, and asking me to deposit it in the will depository in the Office of the Clerk of Superior Court several years ago? No answer.'

After the jury was impanelled the respondent made a motion that the Clerk of the Superior Court of Mecklenburg County be permitted or required to deliver to the respondent a will of John Gamble filed with him for safekeeping. Counsel for respondent stated that a subpoena duces tecum had been issued for the Clerk requiring him to bring the will in court; that the respondent had gone to the Clerk and asked him to deliver the will to him, which the Clerk declined to do on the ground that he was required to bring the will in court in compliance with the subpoena duces tecum. Upon objection by petitioner the court, in its discretion, denied the motion to allow respondent's counsel to examine the paper writing filed with the Clerk on 1 July 1952 having written on the face of the sealed envelope with a typewriter 'Will of John Gamble.' The respondent excepted, and assigns this as error. Respondent then made a motion that he be allowed to examine the contents of the sealed envelope. The court denied the motion, holding as a matter of law that the paper writing is incompetent, and would not be admitted in evidence. The respondent excepted, and assigns this as error. Respondent then moved that he be permitted to examine the will, but let it remain in the custody of the court. The court denied this motion, and respondent excepted, and assigns it as error.

When nearly all the evidence had been introduced, J. Lester Wolfe, Clerk of the Superior Court of Mecklenburg County, was called as a witness by the respondent. A subpoena duces tecum signed by the presiding judge was served on him by the Sheriff. Respondent's counsel asked him this question: 'Mr. Wolfe, do you have any papers at all belonging to Mr. John Gamble, or any papers that were delivered to you on behalf of John Gamble for safekeeping?' The witness replied: 'I do. What I have is a sealed envelope. I have that in my possession.' Court: 'What does it have on the outside of it, Mr. Wolfe?' Answer: 'It just says 'Will,' written at the top, 'John Gamble.' It's typewritten.' Mr. Wolfe testified that he also had some deeds and other things of John Gamble, which had been put in evidence. The respondent offered the subpoena duces tecum in evidence. Petitioner objected, and moved that it be quashed. The court allowed petitioner's motion, and the respondent excepted, and assigns error. Respondent then moved for permission of the court to inspect the paper in the sealed envelope which the Clerk had in his possession. The motion was denied, and the respondent excepted and assigns this as error. The respondent then moved that he be permitted to make a copy of this paper. The court denied the motion, and the respondent excepted, and assigns error. The court said it denied the motions in its discretion.

The petitioner J. Arthur Gamble testified that he and his brother James brought his Uncle John Gamble to Mr. Alexander's office, that he knew his uncle had a will, and left something with Mr. Alexander, for Mr. Alexander to deposit with the Clerk of the Superior Court. He also testified he knew something was deposited with the Clerk of the Court called a will. Henry Washam testified that in the hearing of this proceeding before the Clerk of the Superior Court J. Arthur Gamble testified that he and his brother James were mentioned in the will. It is also significant that Mr. Alexander, counsel for petitioner, in examining John Gamble as a hostile witness in the hearing before the Clerk asked him didn't he in 1940 or 1944 'and in there' make a will back in those days leaving everything to Arthur Gamble. John Gamble, now 89 years old, replied not as I know of. It appears that John Gamble had forgotten the contents of the will inquired about, which he had left with Mr. Alexander to deposit with the Clerk. Petitioner did all he could, and successfully, to keep from the knowledge of the jury the contents of this will. It seems that respondent can draw the fair inference from the evidence that petitioner knew the contents of the will, and that he was named therein as sole, or a principal, devisee and legatee, and that his principal object in bringing this proceeding was to have his Uncle declared incompetent and to set aside the deeds to Carrie Donaldson Knox, so that he could inherit under the will. The petitioner, on cross-examination by respondent's counsel, denied that his whole purpose in bringing this proceeding was to try to get his old uncle declared mentally incompetent, then to have a proceeding brought through a trustee to set aside the deeds to Carrie Donaldson Knox, so that he and his brother James could get John Gamble's lands, and asserted that his purpose was to protect John Gamble's interest, not his.

These questions arise: One, was the answer of petitioner, that it was not his purpose in bringing the proceeding to get his old uncle declared mentally incompetent, and then to have a proceeding brought by a trustee to set aside the deeds to Carrie Donaldson Knox, so that he and his brother could get the lands of his uncle, but to take care of his uncle's interests, conclusive, and could not be contradicted by other evidence? Two, did the refusal of the Court to permit respondent to open and see the contents of the sealed envelope, marked Will of John Gamble, filed with the Clerk, impair, if not prevent, a reasonable crossexamination of petitioner by respondent's counsel as to petitioner's pecuniary interest in the proceeding for the purpose of impeaching his credibility as a witness?

Ordinarily, the answer of a witness on cross-examination...