In Re Peterson's Will.

• Citation: 48 S.E. 561,136 N.C. 13
• Court: United States State Supreme Court of North Carolina
• Decision Date: 20 September 1904
• Parties: In re PETERSON'S WILL. Appeal of HARDY.

48 S.E. 561

136 N.C. 13

In re PETERSON'S WILL. Appeal of HARDY.

Supreme Court of North Carolina.

Sept. 20, 1904.

wills—mental capacity—undue influence —witnesses — competency — statute—evidence — admissibility — hypothetical question — medical expert — open and close of argument—rules of court—appeal.

1. Rule 3 (Clark's Code, p. 952) provides that in all cases when no evidence is introduced by the defendant the right of reply and conclusion shall belong to his counsel. Rule 6 (Clark's Code, p. 953) provides that, where a question shall arise as to which counsel shall have the reply, the court shall decide, and, except as provided in rule 3, its decision shall be final. Held, that under these rules, where evidence has been introduced on both sides in a will contest, the granting of the right to open and close the argument is within the discretion of the trial court.

2. In a will contest, where the caveators averred that the alleged testator did not have sufficient mental capacity to make a valid will, and that the execution thereof was procured by the undue influence of testator's wife and others, a sister of testator and one of the caveators could not testify as to conversations with testator and his deceased wife in the presence of the propounder of the will, who was at the time of the conversation a mere child, and but remotely related to testator, though in the contest was executrix of the estate of testator's wife, and beneficially interested in the result of the contest, under Code, § 590, providing that a person interested in the event shall not be examined as a witness against a person deriving title under a deceased person concerning a personal transaction between the witness and the deceased person.

3. Where evidence was adduced by the caveators for the purpose of showing that testator's deceased wife by undue influence procured the execution of the will, the competency of one of the subscribing witnesses to the will, but disinterested in the result of the proceeding, to testify in rebuttal as to declarations of the wife on being advised by the witness to have her husband execute a new will, drawn by a lawyer, to more fully protect her, is not affected by Code. § 590.

4. Where the caveators averred that the alleged testator did not have sufficient mental capacity to make a valid will, and that the execution was procured by undue influence, a hypothetical question by the caveators, propounded to a medical expert, that if the jury should find that testator was in the physical condition testified to by a certain medical witness who had observed him, and that it was accompanied by flightiness of mind, incoherency of speech, impairment of memory, and a lack of continuous power of thought, together with a weakened condition of his body, would he, during the last two or three weeks of his life, have sufficient mental capacity to know what property he had, to whom he was giving it, and how he was giving it, in case he undertook to make a disposition of it, was proper; it appearing that the medical witness referred to therein was corroborated by other testimony, and that there was a wide difference of opinion expressed as to the alleged testator's mental condition by the witnesses for the respective adversary parties.

5. The testimony of expert medical witnesses who have not had personal knowledge of an individual concerning whose mental capacity

¶ 5. See Evidence, vol. 20, Cent. Dig. § 2396.they are called on to give evidence is entitled to no greater weight than the testimony of nonexpert witnesses who have personally observed and known the individual in question.

6. That a man, by his will, leaves his property to his wife to the exclusion of collateral kin, is not a circumstance tending to show mental incapacity of the testator.

7. Undue influence in the execution of a will cannot be inferred from the fact that testator left his estate to his wife to the exclusion of collateral kin.

8. An exception by the propounder in a will contest to the refusal of the court to dismiss the proceeding because of the insufficiency of the evidence at the close of the caveators' testimony is waived by the propounder thereafter introducing evidence.

Appeal from Superior Court, Beaufort County; Hoke, Judge.

In the matter of the will of E. R. Peterson, deceased. From a judgment for caveators on the issue devisavit vel non, the propounder appeals. Reversed.

This was an issue of devisavit vel non. The will of E. R. Peterson was executed on the 25th day of August, 1898, in which he devised and bequeathed to his wife, Hat-tie A. Peterson, his entire real and personal estate, appointing her executrix thereto. He died on September 6th of the same year, and the will was admitted to probate in the superior court on September 10th. The testator left no children. On January 2, 1899, the said Hattie A. Peterson executed her last will and testament, In which she devised and bequeathed unto Mary E. Bay-nor, now Mrs. Ira M. Hardy, her entire real and personal estate, appointing the said Mary E. her executrix, and the will was duly admitted to probate on May 6, 1901. On July 17, 1901, B. F. Peterson and Mrs. Lucy A. Kern filed a caveat to the will of E. R. Peterson, alleging that the said "paper writing" was not the last will and testament of E. R. Peterson, for that "at the time he signed the same he did not have sufficient mental power and capacity to make and execute a valid will, " and that the execution thereof was procured by the "importunity, coercion, and undue influence of the said Hattie A. Peterson and others." An issue was thereupon made up and transferred to the superior court for trial. The jury having responded to the issue in the negative, judgment was rendered accordingly, and the propounder, having noted exceptions to the rulings and charge of the court below, appealed.

Rodman & Rodman, Bragaw & Ward, and G. W. Ward, for appellant propounder.

Small & McLean, for appellee caveator.

CONNOR, J. The propounder noted an exception to the ruling of his honor in regard to the opening and conclusion of the argument. This being a matter resting in the sound discretion of the court, the exception cannot be sustained. Rule 6, Clark's Code, p. 953. In the view which we take of the case It is not necessary to pass upon all of the exceptions, as many of them may not arise upon another trial. Exceptions numbered 8 to 15 relate to his honor's ruling in regard to the competency of Mrs. Kern and B. F. Peterson to testify to alleged conversations with the testator, E. R. Peterson, and his wife, Hattie A. Peterson, which were objected to under section 590 of the Code. It is alleged that these conversations were had in the presence of Mrs. Hardy, who was then a young girl of 14 to 16 years of age, and is now the executrix of Mrs. Peterson. Mrs. Kern testified that she came to Washington, the home of her brother, E. R. Peterson, in May, 1898, to see her brother, because she heard he was ill; that Miss Baynor, now Mrs. Hardy, was a very distant relative of her brother, and first cousin to Mrs. Peterson; that she did not stop at her brother's house on her visit to him during his last illness; that she had always stopped there before. To the following testimony the propounder objected, the objection was overruled, and exception noted: "Mrs. Peterson told me in the presence and hearing of Miss Baynor that she did not want me at the house, and gave as her excuse that it put too much on her servant." She also testified under objection to other conversations with Mrs. Peterson in the presence of Mrs. Hardy and Mrs. Waters, to all of which the propounder excepted. This testimony comes within the principle decided in Pepper v. Broughton, 80 N. C. 251, and is inadmissible, unless, as contended by the caveators, it is made competent by the decisions in Peacock v. Stott, 90 N. C. 518, and Johnson v. Townsend, 117 N. C. 338, 23 S. E. 271. Pepper v. Broughton was an issue of devisavit vel non involving the validity of the will of one Lou-gee. The caveator showed by one Harris a declaration of the testator regarding the treatment of himself by the husband of the propounder. For the purpose of repelling this testimony she offered to prove by her husband that he "never refused to speak to Lougee"—being the treatment complained of. This court held that the witness was incompetent. Dillard, J., says: "In this case Broughton is received to deny that he refused to speak to Lougee, and this was on his oath, and to this oath the other party to the action, Pepper, could oppose nothing except the statement in conversation with the supposed testator. It matters not whether the object of the testimony was to prove a speaking affirmatively or negatively. It was to prove something material between the witness and the deceased, about which the deceased could have testified if alive, and it was unjust to allow Broughton, by his evidence as to this point, to have any influence to establish one of the wills rather than the other, when Lougee could not be heard in reply." Here the allegation of the caveators is that the execution of the will of E. R. Peterson was the result of "im-portunity, coercion, and undue influence" of Hattie A. Peterson and others. B. F. Peterson and Mrs. Kern, the caveators, proposed to testify to alleged declarations of the testator, E. R. Peterson, and Mrs. Hattie A. Peterson, the devisee and legatee in the will, tending to establish their contentions. Mrs. Peterson is dead, and is represented by Mrs. Hardy, her executrix, and the beneficiary under her will. The caveators contend that the proposed testimony is competent under the exception made to the general rule in Peacock v. Stott, supra. We assume that his honor concurred in that view. The witnesses testified that Mrs. Hardy was present at some of the alleged conversations, and Mrs. Waters at others; that Mrs. Hardy was at that time between 14 and 16 years of age. It is not alleged that she was a...