Hendricks v. Hendricks, 693

• Decision Date: 12 January 1968
• Docket Number: No. 693,693
• Citation: 272 N.C. 340,158 S.E.2d 496
• Court: North Carolina Supreme Court
• Parties: Charles C. HENDRICKS, Individually and as one of the Executors of the Will of Daniel J. Hendricks, Deceased, James R. Hendricks, Individually and as Administrator of the Estate of Sarah Davis, Hendricks, Deceased, Austin H. Hendricks, Ruth H. Suttles, and Aileen H. McCulloch v. D. J. HENDRICKS, Jr., Individually and as one of the Executors of the Will ofDaniel J. Hendricks, Deceased, and wife, Elizabeth P. Hendricks, H. MonroeHendricks, Individually and as one of the Executors of the Will of Daniel J.Hendricks,Deceased, and William O. Hendricks.

Page 496

158 S.E.2d 496

272 N.C. 340

Charles C. HENDRICKS, Individually and as one of the Executors of the Will of Daniel J. Hendricks, Deceased James R. Hendricks, Individually and as Administrator of the Estate of Sarah Davis, Hendricks, Deceased, Austin H Hendricks, Ruth H. Suttles, and Aileen H. McCulloch v. D. J. HENDRICKS, Jr., Individually and as one of the Executors of the Will ofDaniel J. Hendricks, Deceased, and wife, Elizabeth P. Hendricks, H. MonroeHendricks Individually and as one of the Executors of the Will of Daniel J.Hendricks,Deceased, and William O. Hendricks.

No. 693.

Supreme Court of North Carolina.

Jan. 12, 1968. Order Vacated 161 S.E.2d 97.

Jordan, Wright, Henson & Nichols, by Edward L. Murrelle, Greensboro, for defendant appellants.

Cooke & Cooke, by Arthur O. Cooke and William Owen Cooke, Greensboro, for plaintiff appellees.

PLESS, Justice.

The plaintiffs asked several of the witnesses introduced by them, 'Do you have an opinion satisfactory to yourself as to whether or not Daniel J. Hendricks * * * had sufficient mental capacity to understand the nature and consequences of making a deed, its scope and effect, and know what land he was disposing of and to whom and how?' Over the objection of the defendants, the witnesses were permitted to say that they had such an opinion and that he (Mr. Hendricks) 'did not.' The plaintiffs, Charles C. Hendricks, Austin H. Hendricks and Mrs. Aileen H. McCulloch so testified. In addition, Walter Hiatt, a nephew, Marshall Williard, Mrs. Sarah Haworth, Dr. William H. Flythe and Mrs. J. T. Adams answered the same question favorably to the plaintiffs over the objection of the defendants.

We have consistently held that the test is whether or not the maker 'understood what he was doing, the nature and consequences of his act and whether he knew what land he was disposing of, to whom, and how.' A similar test is provided in cases involving the execution of a will. 'The rule is well established that a nonexpert witness may not be permitted to make the abstract statement that a grantor 'did not have sufficient mental capacity to make a deed.' This is so for the reason that mental capacity to make a deed is not a question of fact * * * it is a conclusion which the law draws from certain facts as a premise * * *.' McDevitt v. Chandler, 241 N.C. 677, 86 S.E.2d 438.

In McDevitt, supra, we awarded a new trial because the questions admitted included phrases that the grantor 'did not have sufficient mental capacity to make a deed.' The presence or absence of mental capacity is the very question for the jury, and as such a nonexpert witness may not give an opinion on it but may testify only to the predicate facts (and opinions) from which the jury may draw the conclusion. Strong, N.C. Index 2d, Evidence § 41. To hold otherwise would allow an invasion of the province of the jury. '(I)t is improper for nonexpert witnesses to testify that in their opinion a testator did or did not have the mental capacity to make a will.' In re Will of York, 231 N.C. 70, 55 S.E.2d 791.

'(A) person has mental capacity sufficient to contract if he knows what he is about (Moffit v. Witherspoon, 32 N.C. 185; Paine v. Roberts, 82 N.C. 451), * * * (T)he measure of capacity is the ability to understand the nature of the act in which he is engaged and its scope and effect, or its nature and consequences, not that he should be able to act wisely or discreetly, nor to drive a good bargain, but that he should be in such possession of his faculties as to enable him to know at least what he is doing and to contract understandingly.' Goins v. McLoud, 231 N.C. 655, 58 S.E.2d 634.

The plaintiffs evidence in regard to the facts relating up to the execution of the deed are rather well summarized in the evidence of Mrs. Aileen McCulloch, one of the plaintiffs, who stated that her father told her that Jay was 'aggravating him to death about it.' The only witness offered by the plaintiffs as to the actual event was Mr. Joseph Greene, a notary public, who testified that on two or three occasions before April 15 Jay spoke to him about notarizing a deed, that his father was sick at times, 'and some time when he felt good he would come by and get me and go down.' Mr. Greene further testified:

'On April 15, 1965 (Jay) came to me and requested I notarize a document. * * * When I arrived at the homeplace, I did not go in immediately. * * * (Jay) was already there. He came out to my automobile when I drove up and said he wanted me to fix that paper, and he would go in in a minute and come back out and * * * I waited in my car * * * just a minute or two. * * * (Jay) just told his daddy * * * that the man was 'here to fix the paper.' I didn't know Mr. Hendricks, Sr., but I presumed it was him, so he took the paper to him, and I guess he was blind * * * he agreed to it, as far as I could tell, and he (Jay) put his hand on the right line for him and made an 'X' * * *. During the time, I was in the house, Daniel J. Hendricks, Sr. didn't say anything. * * * (H)e was just sitting in a chair. He never did get up. I can't exactly describe him. I didn't have any idea of anything like this, and really didn't have any interest in the thing. * * * I don't remember whether his hand shook when he attempted to make this 'X'. * * * I was probably there * * * maybe ten minutes. * * * (Jay) paid the notary fee of a dollar. * * * Daniel J. Hendricks, Sr. said nothing during all this time. * * * While I was there, Mr. Raymond Robertson signed the deed as a witness.'

The defendant Jay Hendricks, in summary, testified as follows: His father had told him if he would stay and help him farm, he could have the farm when he was through with it; and further, he said: 'I will give all of them (the other children) a lot to build a home on and they will understand that.' Jay asked his father to give the other children the same opportunity, but in 1939 Mr. Hendricks said none of them would farm so Jay accepted his father's offer to operate the farm and did so 'from then on'.

Monroe Hendricks testified that he graduated from the University of North Carolina, taught school for twenty years, then returned home in 1948 and had lived there continuously since that time with his father and stepmother. 'My father did offer me this farm if I would look after it and cultivate it. * * * He did make a similar offer (to D. J. Hendricks, Jr.) * * * (and) to Bill and to Charles, and to Austin, and I am not sure about Richard.' He testified that Jay stayed on the farm and ran it for the last twenty years of his father's life, that he furnished all the machinery, cars for the family, and generally relieved his parents of the responsibility of operating the farm. Monroe testified that his father requested him to get his old deeds sometime prior to April 15 and 'he said he wanted them to convey Jay some farm land, the farm land that he had promised him.' Monroe got the deeds from a little tin box in his father's room and gave them to the latter. Later, the father in the presence of Monroe gave the deeds to Jay and 'told him to have the deeds made so he could sign them, have the deed made, so he could sign them.' When the deed was signed, the notary came in and said he was ready to notarize the deed. 'Dad got up to the table from his chair, walked over to the table, and he wanted to know where the should sign, and I directed his hand. * * * I steadied his hand as he made the mark. Dad made the mark. Yes, I steadied his hand. The Notary wrote his name, 'D. J. Hendricks'. After that was done, my father made the mark with me holding his hand steady. * * * Mr. D. J. Hendricks, Jr. had nothing to do with my father's making his mark. He did not hold my father's hand when the mark was made, and I am certain that it was I, not Mr. D. J. Hendricks, Jr.' Monroe described the mental and physical condition of his father saying that until his father had the stroke (8 May 1965) that his father was able to go for rides, visited his wife at Chapel Hill a couple of times and that in his opinion his father knew the effect of his signing the deed; that he knew who the deed was going to and had been knowing it for years. 'He had requested that (the deed) to be prepared several times before it was done.'

Mr. Raymond Robertson testified for the defendant saying that the deceased was his uncle; that he saw the deceased before the deed was actually signed, and that at that time Mr. Hendricks said he wanted to make D. J. Hendricks, Jr., a deed, that he was going to make him (Jay) a deed to some property. Later, Robertson went again to the home of the deceased and witnessed the execution of the deed. 'I was present when Mr. D. J. Hendricks, Sr. made his mark. He made the mark with Monroe holding his hand at the proper place. He told Monroe he couldn't see where to make the mark, and he asked him to help him. To my knowledge, Mr. D. J. Hendricks, Jr. did not have anything to do with helping Mr. D. J. Hendricks, Sr. make the mark. He didn't help him in any way that I noticed.' The witness further testified, in effect, that the deceased understood what he was doing, the nature and consequences of his act in making the deed; that he knew what land he was disposing of, to whom he was disposing of it, and how he was disposing of it. 'My opinion is that his mental condition was very good. I think he had the capacity to do it.'

William O. Hendricks, brother of Jay, testified, among other things, 'I knew the arrangement between my father and (Jay). * * * (M)y father told me about the arrangement. * * * I was not surprised that the deed had been made because I knew it was under contract to be made. * * * He (his father) had sufficient understanding to know what he was doing, the nature and consequences of his act in making the deed, what land he was disposing of, to whom and how. * * * (M)y opinion is that he had the understanding to know those things.'

It will be noted...