Horah v. Knox

• Decision Date: 31 October 1882
• Citation: 87 N.C. 483
• Court: North Carolina Supreme Court
• Parties: FRANK HORAH and wife v. SAMUEL KNOX and others.

87 N.C. 483

FRANK HORAH and wife

v.SAMUEL KNOX and others.

Supreme Court of North Carolina.

October Term, 1882.

ISSUE of devisavit vet non tried at January Special Term, 1882, of MECKLENBURG Superior Court, before Bennett, J.

Judgment for plaintiffs, appeal by defendants.

Messrs. Bynum & Grier, for plaintiffs .

Messrs. Jones & Johnston and Wilson & Son, for defendants .

SMITH, C. J.

The exceptions contained in the appeal are taken to the rulings of the court on the trial of the issue, raised by the caveat to the script propounded as the will of Ann Sterling, and submitted to the jury. “Is the said paper writing, or any part thereof, and if so, what part, the last will and testament of Ann Sterling, or not?”

The script is in few words, was executed in March, 1877, in the presence of two attesting witnesses, and gives all the estate of the deceased, real and personal, to the propounder, Margaret Horah, as due for her kindness and attention during the long affliction of the deceased.

The formal execution of the instrument, proved by the subscribing witnesses, was not controverted, but its legal efficacy was impeached upon the ground of a want of mental capacity, and the exercise of undue influence by the sole beneficiary under it.

There was much evidence offered on the question of the sanity of the deceased before and up to and at the time when the script was made, and of the relations between the legatee and the deceased, the latter being under the care and in the custody of the other for a considerable period preceding the death. The testimony is needlessly set out at full length, and this brief reference to its general character and import is sufficient for an intelligent apprehension of the point of law to be considered.

First Exception. The caveators, appellants, introduced William Sloan as a witness, who stated that he was a physician and practiced his profession for many years before the late war, but had ceased to do so; that he knew the deceased, saw her frequently when an inmate in the Asylum at Raleigh, and since on the streets of Charlotte, and thus had many opportunities of knowing her mental condition.

The caveators then proposed to offer the following interrogatory, which on objection was ruled out, and this is their first exception:

In your opinion, based upon your knowledge and observation of the condition of her mind, was Ann Sterling, when you last saw her before the date of the alleged will, competent or of sufficient capacity to transact business or make a will?

But in lieu thereof the following question was allowed to be put and answered by the witness, the propounder's objection thereto being overruled.

Was Ann Sterling in your opinion, based upon your knowledge and observation of her mind, competent, or had she sufficient capacity when you saw her, to transact business involving a disposition of her property? The witness responded “no.”

The ruling of the court in rejecting the first form of inquiry, seems to rest upon the misconception that it embodies a rule for measuring and testing the legal capacity of the deceased to make a valid disposition of her estate by will; while, as we have said in passing upon a similar exception in Bost v. Bost, 87 N.C. 477, this is but a method of ascertaining the degree and extent of the mental capabilities of the person, and the vigor and strength of his will. The information elicited by such inquiry may be, and is, important in enabling the jury, when instructed as to what is necessary in constituting a disposing mind and memory, and freedom in disposing of property, to bring the facts as they shall be found to the test of the prescribed rule, and render an intelligent verdict upon the issue.

The concluding clause in the rejected interrogatory may be obnoxious to the objection, that the witness is asked to determine for himself what in law constitutes testamentary capacity, before any rule has been laid down by the judge for his guidance in framing an answer. But aside from this, and deeming the question pertinent and proper in gauging the intellectual faculties of the deceased, preparatory to the application of the law to the facts, we think the error, if it be such, is cured, and every proper object attained by the substituted and answered inquiry.

The witness was permitted to testify from his own knowledge and observation, and express the opinion that the deceased did not possess sufficient capacity to make any effectual disposition of her property, including as well a disposition by will as by gift inter vivos, thus affording the jury the results of the witness' observation, and his own general estimate of the mental infirmities of the deceased, without invading the province of the jury in determining the issue itself. If her intellectual faculties were so enfeebled and impaired as to disable her to make any valid disposition of her estate, she could not of course dispose of it by will, and so the caveators have all the benefit of a direct negative answer from the witness to the question as first proposed. The exception cannot therefore be sustained.

Second Exception: In the opening argument the propounders read and commented on the case of Lee's Heirs v. Lee's Executors, as reported in 13 Am. Decisions, 722, as showing, in the maker of the impeached will, hallucination and delusion, in a much greater degree than had been proved in the present trial, and yet the will had been sustained. The caveators objected to the use of the reported case, and requested the court to interpose and arrest this cause of remark on the part of the propounders' counsel. The court declined to interfere.

We are unable to see upon grounds the course pursued in the argument of counsel, in the particular made the subject of exception, can be deemed an abuse of the right expressly given by statute “to argue to the jury the whole case as well of law as of fact,” (Rev. Code ch. 31, § 57, par. 15), and more especially under the enlarged privilege conferred by a more recent statute, (Acts 1874-'75, ch. 114) as interpreted in State v. Miller, 75 N. C., 73.

It is true that the statement of facts contained in an adjudicated case cannot be read to the jury as evidence of their existence in another cause, as pertinent to a pending inquiry, as is declared in Mason v. Pelletier, 82 N. C., 40; nor can the writings and opinions of medical experts contained in a written treatise be used as evidence before a jury. Melvin v. Easley, 1 Jones, 386; Huffman v. Click, 77 N. C., 55.

But the reading of the reported case was not for such purposes, but to illustrate a principle of law based upon the supposed, though they may have been, actual facts, decided by a court of high authority. Without the facts, the principle expressed in an abstract form would be of little value in instructing the judicial mind. All treatises upon the law illustrate a legal proposition and challenge its acceptance as correct, by reciting the facts and material circumstances under which it has been held, and the practice of reading from them, as from the report of adjudged cases, is universal and unquestioned in an argument upon a point of law arising in the course of the trial.

Tho?? privilege of counsel may be abused, but unless grossly abused, the corrective must be left in...