In re Craven's Will

Decision Date06 October 1915
Docket Number138.
Citation86 S.E. 587,169 N.C. 561
PartiesIN RE CRAVEN'S WILL.
CourtNorth Carolina Supreme Court

Appeal from Superior Court, Chatham County; Connor, Judge.

In the matter of the will of Eli Craven. John W. Craven filed a caveat to the second codicil of the will, and from judgment declaring the will and codicil to be valid, and ordering them to probate, he appeals. No error.

In proceedings to probate a will, an instruction on testamentary capacity held correct.

A witness cannot be contradicted as to a collateral matter testified to on cross-examination.

This is a caveat to codicil No. 2 of the will of Eli A. Craven, dated November 1, 1912, tried before Connor, J., and a jury, at August term, 1914, of Chatham superior court. Eli A. Craven was born in August, 1824, and died in December, 1912, leaving a last will and testament, dated December, 1910, a codicil thereto, dated February 11, 1911, and a second codicil thereto, dated November 1, 1912, which is the one to which the caveat was filed. There was no contest as to the will itself, or the first codicil, it being admitted by the caveators that, at the time of their execution, the testator was of sound mind, having sufficient mental capacity to make the will and the first codicil, and that, at the time of making them, he was not under any undue influence, but it was charged that, at the time when the second codicil is alleged to have been executed by him, the testator did not have sufficient mental capacity to execute a deed, will, or codicil, and, besides that, he was induced to annex it to his will and the first codicil by the undue and fraudulent influence of the beneficiary thereunder Mrs. Flora Underwood, and her husband, W. J. Underwood, being then a very old man and greatly enfeebled in mind and body that he was under the care of the Underwoods at that time and by reason of his imbecility and their power and influence over him, which they fully and freely exercised, the second codicil was procured by them, whereby he materially changed the disposition of his property, in favor of Mrs. Flora Underwood, who was his daughter, and to the detriment, if not the entire disinherison, of John W. Craven, his son, and his grandsons, one of them his namesake, who had an equal claim with his daughter, Mrs. Underwood, upon the testator's favor and bounty.

The court submitted the following issues to the jury, which were answered by them as indicated:

"1. Is the paper writing dated December 6, 1910, and every part thereof, propounded, the last will and testament of Eli A Craven? Answer: Yes.

2. Is the paper writing dated February 11, 1911, and every part thereof, propounded, a codicil to the last will and testament of Eli A. Craven? Answer: Yes.

3. Is the paper writing dated November 1, 1912, and every part thereof, propounded, a codicil to the last will and testament of Eli A. Craven? Answer: Yes."

Judgment was entered thereon, declaring the will and codicils to be valid and ordering them to probate, and caveators appealed.

R. H. Hayes and F. W. Bynum, both of Pittsboro, and H. F. Seawell, of Carthage, for caveator.

A. A. F. Seawell, of Sanford, R. H. Dixon, of Siler City, and Siler & Milliken, of Sanford, for appellee, cited authorities as follows: Exception 3, Hobson v. Moorman, 115 Tenn. 73, 90 S.W. 152, 3 L. R. A. (N. S.) 749, 5 Ann. Cas. 601. Exception 8, Bond v. Manufacturing Company, 140 N.C. 381, 52 S.E. 929; Potts v. House, 6 Ga. 324, 50 Am. Dec. 346. Exception 9, Campbell v. Campbell, 130 Ill. 466, 22 N.E. 620, 6 L. R. A. 170; In re Thorp, 150 N.C. 487, 64 S.E. 379; Potts v. House, supra. Exception 10, Paine v. Roberts, 82 N.C. 451; Bundy v. McKnight, 48 Ind. 502-516.

WALKER, J. (after stating the facts as above).

There was much testimony received upon the issues thus joined between the propounders and the caveators, as to the validity of the second codicil to Mr. Craven's will, but we do not deem it material that it should be stated here, except to say that there was strong evidence coming from the side of the caveators to sustain their allegations, both as to the mental incapacity of the testator and as to the fraud and undue influence of Mrs. Underwood and her husband, and upon this testimony the jury might well have given their verdict to the caveators, but there was evidence offered by the propounders, and the Underwoods, to show the contrary, and in this conflict of the testimony the case was properly one for the jury to find the facts and declare what was the truth of the matter. There are several questions of evidence in the case, but on a careful examination of the record we do not think that, if there was any error in the rulings of the court, in respect to them, it constitutes sufficient ground for granting a new trial. It is not any and every error committed during the course of a trial that should induce an appellate court to set aside a verdict and judgment and award a new trial, as before this is done, there should be both error and prejudice to the appellant. If he is not hurt by the ruling, to which exception was taken, there is no reasonable ground of complaint. We thus referred to this principle in State v. Smith, 164 N.C. 480, 79 S.E. 982, and more recently in State v. Heavener, 168 N.C. 163, 83 S.E. 735, and Ferebee v. Berry, 168 N.C. 282, 84 S.E. 262:

"The foundation of the application for a new trial is the allegation of injustice, and the motion is for relief. Unless, therefore, some wrong has been suffered, there is nothing to be relieved against. The injury must be positive and tangible, not theoretical merely. For instance, the simple fact of defeat is, in one sense, injurious, for it wounds the feelings [and disappoints the defeated party]. But this alone is not sufficient ground for a new trial. It does not necessarily involve loss of any kind, and without loss or the probability of loss there can be no new trial. The complaining party asks for redress, for the restoration of rights which have first been infringed and then taken away. There must be, then, a probability of repairing the injury; otherwise the interference of the court would be but nugatory. There must be a reasonable prospect of placing the party who asks for a new trial in a better position than the one which he occupies by the verdict. If he obtain a new trial, he must incur additional expense, and if there is no corresponding benefit, he is still the sufferer. Besides, courts are instituted to enforce right and restrain and punish wrong. Their time is too valuable for them to interpose their remedial power idly and to no purpose. They will not interfere, therefore, where there is no prospect of ultimate benefit."

The alleged declaration of the testator, some six or eight months before the date of the second codicil, to the witness, E. F Craven, as to "the efforts of Will Underwood to get the farm," with an expression of a desire by him that the witness should defeat them, might well have been admitted by the court as some, though exceedingly slight, evidence of undue influence; but, in view of the special facts and circumstances of this case. and of the evidence showing a decided change afterwards in the mental attitude of the testator towards his daughter, we do not think that its exclusion was so prejudicial as to justify us in granting a new trial because of it, and had it been admitted, we are of the opinion that it would not have affected the verdict one way or another. There was much stronger testimony in the case, as to what the testator's wishes were, at the time of the conversation with this witness, and the evidence rejected was cumulative only, and added little or no weight to that which was admitted and heard by the jury. Its influence upon the verdict, if any, would have been exceedingly remote and attenuated. We are therefore of the opinion, that the ruling was not prejudicial, because the proposed testimony was so inconsiderable in its bearing upon the issue and of such little moment, so far as it had any probative force at all, that unless the case had been evenly balanced, it could not have turned the scales to the other side. It is not by any means clear how the testator expected W. J. Underwood would try to get the land, whether by foul means or fair, or whether before or after the testator's death, nor whether his wife was expected to participate in his conduct or benefit by it. There is good reason for the belief that he was not referring to any undue influence to be exercised upon him, but to some other kind of effort. He evidently felt that he was unable to take care of himself in regard to it, but wanted some one to look after it when he was gone. In any view of the matter, we do not regard the evidence as of sufficient importance to make its exclusion the proper basis for a new trial. The rejection of the other evidence worked no harm, if it was erroneous. The letter of Mrs. Flora Underwood, the beneficiary under the second codicil, as to the state of her father's health and mind was written and dated December 22, 1909, long--nearly three years--before the second codicil was made, and it is admitted that, at the time of the execution of the will and first codicil, Mr. Craven was mentally sound and capable of making them, and, moreover, was not affected by any undue influence. Waterman v. Whitney, 11 N.Y. 157, 62 Am. Dec. 71. When sanity or mental capacity is shown to exist at any particular time, the law presumes that it continues until the fact is shown to be otherwise. If there is no evidence at all in regard to one's mental condition, there is a presumption of sanity or mental capacity. He who alleges the contrary must prove it. This very question arose in the noted will case of Wood v. Sawyer, 61 N.C. 277, where Justice...

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