In re McDowell's Will
| Decision Date | 13 April 1949 |
| Docket Number | 381 |
| Parties | In re McDOWELL'S WILL. |
| Court | North Carolina Supreme Court |
The alleged testator died November 21, 1946, a resident of Randolph County. A paper-writing, executed February 24, 1942, and purporting to be his last will and testament, was probated in common form on November 29, 1946. Thereafter, on April 16, 1948, a son of the deceased and three children of a deceased son filed a caveat to the probated instrument, alleging mental incapacity and undue influence at the time of its execution and publication. Another son of the deceased and his children are the propounders.
The matter was thereupon transferred to the civil issue docket and upon the hearing the jury sustained the paper-writing as the last will and testament of the deceased.
From judgment on the verdict, the caveators appeal, assigning errors.
H M. Robins and Miller & Moser, all of Asheboro, for propounders, appellees.
Smith & Walker and J. G. Prevette, all of Asheboro, for caveators, appellants.
The appeal presents for review (1) the competency of evidence and (2) the correctness of the charge.
1. The propounders offered Dr. J. T. Barnes as a witness and asked his opinion of the mental capacity of the deceased to make a will in February, 1942. He replied that he did not know the deceased in 1942; that he first met him in 1946, and at that time 'he was perfectly normal--he talked that way anyway.'
The caveators contend that the testimony of this witness was particularly hurtful since it came from a physician highly respected by the jury, and that it runs counter to the case of In re Hargrove's Will, 206 N.C. 307, 173 S.E. 577, where evidence of mental incapacity, more than two or three years after the execution of the alleged will, was held incompetent.
Initially, it should be observed that while the witness was asked to give his opinion as of February, 1942, he specifically limited his answer to 1946. Moreover, there was no objection to the answer and no motion to strike. In re Will of Kestler, 228 N.C. 215, 44 S.E.2d 867.
It is the rule with us that on the issue of testamentary capacity, it is competent to show the mental condition of the maker a reasonable time before and after the execution of the paper-writing propounded as his will. In re Will of Ross, 182 N.C. 447, 109 S.E. 365. There are no circumstances here to render the evidence too remote in point of time. In re Will of Brown, 194 N.C. 583, 140 S.E. 192; In re Will of Kestler, supra.
Out of a large number of witnesses, there were three or four others, who, like Dr. J. T. Barnes, were allowed to speak of the mental capacity of the deceased some time after the making of his will. All these exceptions fall in the same category and none can be sustained as no prejudice has been made manifest.
2. The propounders offered Sarah Margaret Boling, a granddaughter of the deceased, who had received numerous letters from him and who had lived in his home. She testified that the letters were in 'my grandfather's handwriting', and they were offered in evidence. The caveators contend that the letters were not properly identified as the witness did not state she knew the handwriting of her grandfather, and further that they constitute personal transactions with the deceased which are prohibited by the 'dead man's statute'. G.S. s 8-51; Arndt v. Jefferson Ins Co., 176...
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