In Re Ross' Will.

• Decision Date: 23 November 1921
• Docket Number: (No. 419.)
• Citation: 109 S.E. 365
• Parties: In re ROSS' WILL.
• Court: North Carolina Supreme Court

109 S.E. 365

In re ROSS' WILL.

(No. 419.)

Supreme Court of North Carolina.

Nov. 23, 1921.

Walker, J., dissenting in part.

Appeal from Superior Court, Union County; Ray, Judge.

Caveat to contest the will of Maggie A. Ross, deceased. From a judgment admitting the will to probate, the caveators appeal. New trial granted.

Alleged mental incapacity, undue influence, and want of due execution are the grounds upon which the caveat is based. The jury returned the following verdict: "Is the paper writing propounded, and every part thereof, and the codicil attached thereto, the last will and testament of Maggie Ross, deceased? Ans. Yes."

From the judgment rendered, the caveators appealed.

Walter Clark, Jr., of Charlotte, and Stack, Parker & Craig, of Monroe, for appellants.

Cansler & Cansler, of Charlotte, Vann & Milliken, of Monroe, Frank Armfield, of Concord, and John C. Sikes, W. O. Lemmond and W. B. Love, all of Monroe, for pro-pounders.

STACY, J. [1, 2] The trial of this cause in the superior court was a long drawn out and vigorous contest. It required 15 days to try the case. Nearly 100 witnesses were examined, the record is voluminous, and we would not be disposed to grant a new trial for any technical or formal error. in fact, It is now the settled rule of appellate courts that verdicts and judgments will not be set aside for harmless error, or for mere error and no more. To accomplish this result, it must be made to appear, not only that the ruling complained of was erroneous, but that it was material and prejudicial, amounting to a denial of some substantial right Our system of appeals, providing for a review of the trial court on questions of law, is founded upon sound public policy, and appellate courts will not encourage litigation by reversing judgments for slight error, or for stated objections, which could not have prejudiced the rights of appellant in any material way. Burris v. Litaker, 181 N. C. 376, 107 S. E. 129; In re Edens' Will, 109 S. E. 269, at the present term, and cases there cited. Again, error will not be presumed; it must be affirmatively established. The appellant is required to show error and he must make itappear plainly, as the presumption Is against him. In re Smith's Will, 163 N. C. 464, 79 S. E. 977; Lumber Co. v. Buhmann, 160 N. C. 385, 75 S. E. 1008; Albertson v. Terry, 108 N. C. 75, 12 S. E. 892. See, also, 1 Michie, Digest, 695, and cases there cited under title "Burden of Showing Error."

After carefully examining the record, with a full appreciation and observation of the above rules of procedure, we are unable to sustain the following portion of his honor's charge, which was given at the request of the propounders and to which the caveators have specifically excepted:

"Though the jury should find from the evidence that Miss Maggie Ross was feeble-minded and that alone and unassisted she could not have furnished her attorney, H. B. Adams, details concerning her property, nor the persons or institutions to whom she wished to will same, nor directions as to the disposition of said property, but should further find that Maggie Ross and Sallie Ross conferred together with their attorney concerning the execution of their wills, that Sallie Ross gave to said attorneys such details concerning the property of Maggie Ross and the persons or institutions to whom same was to be willed and directions as to the dispositions of said property, Maggie Ross being present hearing such details and directions given, and by words or acts assenting to said details, directions and dispositions, and should further find that Maggie Ross' attorney, H. B. Adams, deceased, faithfully embodied the information, directions and details so given him concerning said property, persons and institutions to whom it should be willed and said disposition of said property, then the court charges you that said paper writing would be the last will and testament of Maggie Ross and that said paper writing offered here for probate was formally executed by her according to the rules given you by the court."

There are several objections to this charge. In the first place, it fails to observe the difference in time between the giving of the instructions to the attorney and the execution of the will. It does not appear upon what date the Misses Ross conferred together with their attorney concerning the execution of their wills; but, in a letter written by said attorney on November 15, 1907, he uses the following sentence:

"It has required a little longer time to write jour wills than I anticipated, however, I inclose them to you this evening by registered mail, so as to insure their safe delivery."

The wills were executed five days later, on November 20, 1907. It evidently required some time for their preparation, as the two are rather lengthy and bear evidence of careful drawing with each containing more than 40 separate items.

Ordinarily, the question of a few days might not be capitally important, but this would depend entirely upon the circumstances of the given case. It appears from the instant record that the testatrix was 68 years of age at the time of the execution of her will; she was feeble-minded, in ill health,

given to fits of weeping or crying, and was subject to spells of melancholia. Mrs. Harriett Taylor, one of her neighbors, testified:

"She would have these melancholy spells sometimes as often as three times a week, sometimes once a week, sometimes once every two or three weeks, and sometimes twice a week. She would sit for hours and not speak a word. * * * These spells would last a day or two sometimes. She would sit and twirl her thumbs, stroke her chin, and stare out of the window into space. * » * Her memory was not very good. * * * She could not carry on a connected conversation."

There was further evidence tending to show that the testatrix was crying at the time she signed the will. One of the subscribing witnesses gave the following testimony:

"I do not remember anything that Miss Maggie Ross said while we were there outside of her kind of boohoo that I positively recollect. She never said anything about the papers, nor asked me to witness them, to my recollection. At the time Miss Sallie said, 'These are our wills and we want you to witness them, ' Miss Maggie was in the room, but I can't be positive as to just what position, but I know we were all in there together. I can't say I know what she heard."

The competency of the testatrix to make the will in question is to be determined as of the date of its execution, or of its republication, as by a codicil (In re Journeay, 162 N. Y. 611, 57 N. E. 1113), and not when instructions for its. preparation were given (Memorial Home v. Haeg, 204 111. 422, 68 N. E. 568; Mitchell v. Corpening, 124 N. 0. 472, 32 S. E. 798; 40 Cyc. 998; Kerr v. Lunsford, 31 W. Va. 659, 8 S. E. 493, 2 L.R.A. 668). Of course, the conduct of the testatrix at the time of this conference is competent and relevant, as bearing upon the question of her testamentary capacity; but, notwithstanding her mental condition at that time, this would not necessarily establish her competency to execute the will at the subsequent date. 28 R. C. L. 93. The above special instruction, however, takes no note of this difference in time and really makes her capacity at the time of the conference, and not at the date of signing, the test of her ability to execute the will. This is not in keeping with the law as heretofore declared. Claffey v. Ledwith, 56 N. J. Eq. 333, 38 Atl. 433.

Again, the giving of this special prayer was erroneous because it takes from the jury the question as to the due execution of the will. This was one of the grounds of the caveat, and the burden was on the propounders to establish the formal execution of the paper writing alleged to be the last will and testament of the said Maggie A. Ross. Mayo v. Jones, 78 N. C. 402.

But the overshadowing objection to this instruction is to the substance of the charge bearing upon the quantum of mind, or mental capacity, necessary to the making of a valid will. It will be observed that the basis of this prayer is not only that the testatrix could not alone and unassisted give her attorney details concerning her...