Harrington's Will, In re
| Decision Date | 02 March 1960 |
| Docket Number | No. 102,102 |
| Citation | 252 N.C. 105,113 S.E.2d 21 |
| Court | North Carolina Supreme Court |
| Parties | Matter of the Last WILL and Testament of S.E. HARRINGTON, Deceased. |
Owens & Langley, Kinston, Robert D. Wheeler, Grifton, for caveators, appellants.
M. E. Cavendish, L. W. Gaylord, Jr., Albion Dunn, Greenville, for propounders, appellees.
Prior to 1944 the testator was the owner in fee of the Kirkman Farm in Craven County. He also owned substantial real estate in Pitt County, where he lived. On November 28, 1944, he executed a deed conveying the Pitt County lands (with the exception of a few small lots) to Edwin Harrington, Trustee, who on the same day executed a deed for the said lands to the testator and his wife, Mamie E. Harrington. It is stipulated the deed to the testator and his wife created an estate by entireties. It is further stipulated: 'S. E. Harrington continued in active possession and control of the same and collected all rents and profits up until his death on July 27, 1959.'
The testator, in dividing his real estate among his wife, his children and grandchildren (the latter representing their deceased parent), treated the Pitt County lands as his own. The trouble arose when it was ascertained the Craven County land passed by the will to the two sons but that the Pitt County lands, upon the death of the testator, passed to his wife as survivor.
The will is challenged only on the ground the testator lacked mental capacity to make it. It is significant the only evidence offered as tending to show lack of mental capacity is the daughter's conclusion from the fact the testator attempted to devise lands in Pitt County which he and his wife held by the entireties at the time he executed his will in 1956. Is the evidence offered sufficient to present any controversy as to his mental capacity? Reduced to its final analysis, the evidence of mental incapacity rests solely on the conclusion he devised the lands which belonged not to him, but to his wife. The evidence from which the conclusion is drawn looks backward from the testator's death to the time he made his will. In order to ascertain his capacity, we must look at the situation on the date he executed the will. Assuming he understood the full purport of the doctrine of survivorship, nevertheless it was not unreasonable to suppose his purpose to divide his lands equitably would eventually be carried out.
The testator, prior to 1944, was the fee simple owner of the lands both in Craven and Pitt Counties. The effect of the transactions creating the estate by the entireties in the testator and his wife was to provide for the survivor to take all. At the time the will was executed the testator, of course, did not know whether he or his wife would survive. If he survived, the estate would go according to the terms of his will. The will made provision for the wife to take personal property and a life estate in the Pitt County lands. If she survived, and elected to take under the will, the devise to the children would be effective to pass title to them. The wife had the right to dissent from the will and take as surivor, or she had an equal right to abide by the will and take under it. Even though the widow should dissent and take the Pitt County lands as survivor, nevertheless in the final disposition of her estate she had the undoubted right to dispose of the lands, taking into account the advancements already made by her husband. In this view we hold the attempt to devise the Pitt County lands and the conclusion of his daughter with respect to his mental capacity are insufficient to sustain a finding the testator lacked mental capacity to execute a will. Under the circumstances here disclosed, the widow's dissent, filed after the testator's death in 1959, was not evidence of his lack of mental capacity to make a will in 1956. The widow's election to dissent is without probative value on the issue of mental capacity. The exclusion was proper. In re Estate of Povey, 271 Mich. 627, 261 N.W. 98, 99 A.L.R. 1183. Assignment of Error No. 1 is not sustained.
The caveators assign as error the court's charge on the first issue: 'The caveators agree that it (the will) was executed according to the formalities of the law and that you shall answer that issue...
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Chisholm v. Hall, 97
...does not deprive the jury of its right to reject the evidence because of lack of faith in its credibility. In re Will of Harrington, 252 N.C. 105, 113 S.E.2d 21; Roach v. Pyramid Life Ins. Co., 248 N.C. 699, 104 S.E.2d 823; Hincher v. Hospital Care Ass'n, 248 N.C. 397, 103 S.E. 2d 457; Peek......
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In the Matter of Estate of McIntosh, No. COA08-638 (N.C. App. 4/7/2009)
...by the Caveator establishes more than the attempt to devise property not owned by the testator at issue in In re Will of Harrington, 252 N.C. 105, 113 S.E.2d 21 (1960); the limited number of instances of confusion coupled with generally declining physical and mental health at issue in In re......
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Gamble v. Stutts, 522
...Walker's order. That would be true only if the error were prejudicial. Pratt v. Bishop, 257 N.C. 486, 126 S.E.2d 597; In re Will of Harrington, 252 N.C. 105, 113 S.E.2d 21. It is provided by statute, G.S. § 1-159: New matter in an answer, if not a counterclaim, is 'deemed controverted by th......