In Re Brown's Will.

• Citation: 203 N. C. 347,166 S.E. 72
• Decision Date: 10 October 1932
• Docket Number: No. 123.,123.
• Court: United States State Supreme Court of North Carolina
• Parties: In re BROWN'S WILL.

166 S.E. 72

203 N. C. 347

In re BROWN'S WILL.

No. 123.

Supreme Court of North Carolina.

Oct. 10, 1932.

Appeal from Superior Court, Warren County; Small, Judge.

Proceeding on an issue of devisavit vel non raised by a caveat to the will of Byron Brown, deceased. From a judgment declaring the paper writings propounded to be the last will and testament of the deceased, caveators appeal.

No error.

Issue of devisavit vel non, raised by a caveat to the will of Byron Brown, late of Warren county, based upon alleged mental incapacity.

It appears from the record that the caveators offered nineteen witnesses, three of them daughters of the deceased, who gave evidence tending to show mental incapacity at the time of the execution of the paper writings propounded as the will, and codicils thereto, of the alleged testator.

The propounders offered twenty-six witnesses in reply who gave evidence of his mental capacity to make a will when the paper writings in question were executed. The preponderance of the evidence, it is said, was greatly in favor of the propounders.

The following instruction concerning the testimony of the three interested witnesses, daughters of the deceased, forms the basis of the twelfth exceptive assignment of error: "The Court has instructed you heretofore that certain evidence (the testimony of Lucinda Davis, Elizabeth Davis, and Ellen Jones) was admitted of persons claiming under the will, that is, certain instances upon which they based their testimony he did not have mind enough to know the objects of his bounty, to know his children and their claims upon him, and the scope and effect of a will. That testimony is admitted when testified to by those who are claiming under the will, not as substantive testimony, but is admitted as evidence to be considered by you in consideration with other testimony, as showing the basis of opinion of these witnesses. That is, an heir to a deceased person, or one claiming under a will, or an heir who is trying to upset thewill, is allowed to testify that in his or her opinion the deceased did not have mind enough to know his property, his children, the claims his children had upon him, and the scope and effect of a will, and then there is an exception to the rule wherein such witnesses can testify to transactions or conversations between them and the deceased--in this case their father--and they are allowed to testify, not as substantive testimony, but as showing upon what they base their opinion of the mental capacity of the deceased."

From a verdict and judgment declaring the paper writings propounded to be the last will and testament of the deceased, the caveators appeal, assigning errors.

Kerr & Kerr, of Warrenton, and Yarbor-ough & Yarborough, of Louisburg, for appellants.,

George O. Green, of Weldon, Perry & Kitt-rell, of Henderson, and Julius Banzet, Jr., of Warrenton, for appellees.

STACY, C. J.

The case turns on the twelfth assignment of error.

The three daughters of the deceased, parties interested in the event, testified that their father did not have sufficient mental capacity to make a will when the paper writings propounded as such were executed. They then related a number of personal transactions and communications had with the deceased, upon which they based their opinions.

Was the testimony relating to these transactions and communications competent as substantive evidence?

It has been held that, in a proceeding of this kind, both propounders and caveators are "parties" within the meaning and spirit of C. S. § 1795, which disqualifies a party or person interested in the event, or a person under whom such party or person interested derives his interest, from testifying as a witness in his own behalf against the executor, administrator, or survivor of a deceased person, concerning a personal transaction or communication between the witness and the deceased, 'except where the executor, administrator, or survivor is examined in his own behalf, or the testimony of the deceased person is given in evidence concerning the same transaction or communication. In re Mann's Will, 192 N. C. 248, 134 S. E. 649; In re Chisman's Will, 175 N. C. 420. 95 S. E. 769.

The disqualification of such witnesses to give evidence concerning personal transactions or communications had with a decedent rests, not merely upon the ground "that the dead man cannot have a fair showing, but upon the broader and more practical ground, that the other party to the action has no chance, even by the oath of a relevant witness to reply to the oath of the party to the action." McCanless v. Reynolds, 74 N. C. 301. Men quite often understand and interpret personal transactions and communications differently, at best; hence the Legislature, in its wisdom, has provided that an ex parte version of such matters may not be received in evidence except as above stated and as further provided by the statute. White v. Evans, 188 N. C. 212, 124 S. E. 194; Sherrill v. Wil-helm, 182 N. C. 673, 110 S. E. 95; Price Real Estate & Insurance Co. v. Jones, 191 N. C. 176, 131 S. E. 587. The reason for the provision was stated by Rodman, J., in Whitesides v. Green, 64 N. G. 307, as follows: "No interested party shall swear to a transaction with the deceased, to charge his estate, because the deceased cannot swear in reply. If however the representative of...