Hall's Will, In re, 666

• Citation: 252 N.C. 70,113 S.E.2d 1
• Decision Date: 02 March 1960
• Docket Number: No. 666,666
• Parties: In re WILL of Florence HALL, Deceased.
• Court: United States State Supreme Court of North Carolina

Page 1

113 S.E.2d 1

252 N.C. 70

In re WILL of Florence HALL, Deceased.

No. 666

Supreme Court of North Carolina.

March 2, 1960

Arthur Vann, Durham, and Wilton Walker, Currituck, for caveators-appellants.

E. C. Brooks, Jr., Reade, Fuller, Newsom & Graham, and James T. Hedrick, Durham, for propounders, appellees.

MOORE, Justice.

Caveators noted 128 exceptions and made 60 assignments of error. The record, including assignments of error, contains 368 mimeographed pages and the briefs contain 91 pages in addition. All have been carefully read, noted and considered by the Court. It would serve no useful purpose to discuss the assignments of error seriatim. They will be examined in their application to the questions of law raised in appellants' brief.

(1) Caveators insist that the court erroneously set up, at the beginning of the trial, an arbitrary time limit of two years before and two years after the execution of the will on 29 August 1951 beyond which no evidence of conduct, transactions, declarations or condition of testatrix would be admitted. They contend that the court adhered to this arbitrary rule and thereby excluded relevant, material and competent evidence favorable to caveators and bearing upon the questions of mental capacity and undue influence.

Testimony of caveators' witness, Harold Mangum, to the following effect, was excluded: He is 47 years old and has known Mrs. Hall since he was 7 or 8 years of age. Prior to 1941 she gave him a vacant lot 'right at the old city limits' of Durham and advanced $2,000 to help him build a house there.

Mrs. Geneva Conklin testified in substance without objection: She first became acquainted with Mrs. Hall 'about April or May of 1951' and saw her often there-after. Mrs. Hall told her she had had 'quite a bit of trouble with a young man,' George Whitfield, had bought him a Cadillac automobile, had given him a deed to property in Hendersonville and had gone with him on a trip to Hendersonville. Mrs. Hall further stated that Whitfield was in his early twenties, she had intended to marry him, had gotten a marriage license for that purpose but had been advised against the marriage by another man, and Whitfield had gotten her out of forty to forty-five thousand dollars. Mrs. Hall 'dwelt on it all the time.' Mrs. Hall was not definite in her statements as to the time of these transactions with Whitfield.

The record discloses that Whitfield was married to another woman on 15 February 1947 and such transactions as were had by testatrix with Whitfield were about the years 1946 and 1947.

At the close of the evidence for caveators the court made the following ruling with respect to Mrs. Conklin's testimony above summarized: 'Gentlemen of the Jury, * * (Mrs. Geneva Conklin) * * * stated that Mrs. Hall talked about the transactions quite a bit, and that the transactions she had with this young man seemed to be on her mind. The court instructs you that as to that testimony you may consider the fact that Mrs. Hall * * * seemed to have a transaction of that kind on her mind a good deal as it might tend to show a condition of her mind at the time Mrs. Conklin knew her. But as to the exact details of what took place between Mrs. Hall and the young man George Whitfield * * * you will not consider them, and disregard them and erase them from your mind and do not permit them to influence you in your verdict.' Caveators excepted to this instruction.

In the absence of the jury, Mrs. Sarah Mangum and Mrs. Margaret Kemp Kersey caveators' witnesses, and W. B. Julian and Hubert M. Brown, propounders, related similar declarations by Mrs. Hall, some in more and some in less detail than Mrs. Conklin. Mrs. Kersey stated that her conversations with Mrs. Hall were in 1949 and that sometime prior thereto she had seen Whitfield at Mrs. Hall's home 'many atime,' but she was not definite as to the year or years. Mr. Julian testified that he met Whitfield in 1948 and had conversations with Mrs. Hall about him that year. Mr. Brown stated that in 1947 Mrs. Hall showed him a marriage license, he didn't read the names on it, he asked her if she knew what she was doing and she said she had a right to do what she wanted to, that she tore the license in two in the course of the conversation.

Upon objection, the court excluded the evidence summarized in the preceding paragraph on the ground that the transactions related by Mrs. Hall to the witnesses were too remote in time, having occurred four to four and one-half years prior to the execution of the will. The record discloses no exception to the exclusion of Mr. Julian's evidence. Jones v. Jones, 235 N.C. 390, 391, 70 S.E.2d 13. It does not appear from the record that caveators requested that the excluded evidence be admitted for the limited purpose of showing the state of testatrix' mind, as was done with respect to Mrs. Conklin's testimony.

We must consider the relevancy and competency of the evidence in question as it relates both to mental capacity and undue influence. The rules of admissibility of evidence are somewhat different on these issues.

Upon the second issue the ultimate inquiry was whether or not Mrs. Hall had testamentary capacity at the time she signed the paper writing on 29 August 1951. The competency of a testator to make a will is to be determined as of the date of its execution. In re Will of Hargrove, 206 N.C. 307, 309, 173 S.E. 577. Evidence of capacity at other times is important only in so far as it tends to show mental condition at the time of such execution. In re Will of Stocks, 175 N.C. 224, 225, 95 S.E. 360.

'The decided weight of authority upon the subject is to the effect that the conversation, acts, conduct and general demeanor of a testator or testatrix previous to the execution of a will, at the time of the execution, and subsequent to the execution thereof, are competent and relevant upon the issue of testamentary capacity. * * * The rule of reason has been adopted as the law in this state. In the Will of Stocks, 175 N.C. 224, 95 S.E. 360, 361, the court quoted with approval the utterance of the Minnesota court, as follows: 'Where the issue is the mental capacity of the testator at the time of making the will, evidence of incapacity within a reasonable time before and after, is relevant and admissible.' Naturally, it will be inquired: What is meant by reasonable time? No precise or mathematical definition can be fashioned. The term itself is ordinarily clearer than definitions. Usually definitions cloud rather than clarify. The interpretation of the term must ultimately depend upon the variability of given facts and circumstances. ' In re Will of Hargrove, supra [206 N.C. 307, 309, 173 S.E. 579]. '* * * (T)he matter rests very largely within the discretion of the trial court according to the circumstances of the particular case. While it has been said that much latitude should be allowed in the admission of this evidence, such evidence must be sufficiently near in point of time to aid in determining the testator's condition at the time of execution, and if the evidence is too remote in point of time, it may be excluded.' 94 C.J.S. Wills § 50, p. 752.

In the instant case, near the beginning of the trial but after six witnesses had testified and while Mrs. Conklin was on the witness stand, the court, addressing the attorneys, said: 'I rather think it is a part of wisdom here to adhere as closely as possible to the rule laid down in the Hargrove case, namely, that some two years, or probably three in some instances, have not been disapproved. * * * I think you are treading on questionable ground if you undertake to exceed the Hargrove rule either way. * * * And I am rather inclined to restrict it to that period, and only pass on its competency if you go to the four years when that becomes absolutely necessary. I think the Hargrove case is authority for that. I believe if you will follow that rule you will be on safe ground, and when you get above two years before and after, you are to get in sort of dangerous territory.' After making this statement, the court in nearly every instance limited the evidence with respect to testatrix' conduct, transactions, discussions and condition to that period within two years before and after the execution of the will.

In re Will of Hargrove, supra, is the case referred to by the court; it was followed very closely in the trial of the case sub judice. In the Hargrove case the testatrix was an elderly woman, though her exact age was not given, and she was never married. The will was executed 27 February 1906; testatrix died in 1930. Under the will nearly all property was devoted to religious purposes. Caveat was filed by certain nephews. Sixteen of caveators' witnesses had not known testatrix until after the execution of the will. They made her acquaintance at times ranging from two to twenty years after the will was made. All testified that in their opinion Miss Hargrove did not have testamentary capacity on 27 February 1906. The Court said: 'There is no evidence that the testatrix suffered with a disease tending to produce mental impairment and progressive in its nature. The opinions of the witnesses referred to were based upon disconnected and unrelated incidents. * * * At least, it can be stated that no case in this state has been called to the attention of the court in which disconnected incidents occurring more than two or three years after the execution of the will have been approved in determining mental capacity. Therefore, the court is of the opinion that such evidence, whether offered by propounders or caveators, is incompetent. However, it is not to be assumed that the court intends to prescribe a time limit. The best that appellate courts can do in dealing with the subtle processes of the mind is to interpret facts in such cases by the rule of reason and common sense.'

The case at bar is in some respects analogous to the Hargrove case. Miss Hargrove and...