In Re Staub's Will.

• Decision Date: 04 October 1916
• Docket Number: (No. 184.)
• Citation: 90 S.E. 119
• Court: North Carolina Supreme Court
• Parties: In re STAUB'S WILL.

(172 N.C. 138)

90 S.E. 119

In re STAUB'S WILL.

(No. 184.)

Supreme Court of North Carolina.

Oct. 4, 1916.

Brown, J., dissenting.

Appeal from Superior Court, Craven County; Whedbee, Judge.

Caveat to will of H. J. Staub, deceased, by Albertina Staub and others, against D. E. Henderson, executor, and the directors of the First Church of Christ Scientist of Newbern. Judgment for caveators, motion to set aside the verdict and for a new trial denied, and the propounders except and appeal. No error.

Guion & Guion and D. L. Ward, all of Newbern, and S. Brown Shepherd, of Raleigh, for appellants.

Moore & Dunn, of Newbern, for appellees.

CLARK, C. J. The caveat was filed upon the ground of insufficient mental capacity and undue influence. The issue as to undueinfluence was not answered by the jury, and the appeal depends solely on the finding that the deceased did not have mental capacity to make a will. The first six exceptions are to testimony brought out upon cross-examination of the witnesses for the propounders and cannot be sustained.

The first exception is because the witness who had testified favorably as to the mental condition of the deceased was asked as to contradictory statements made by himself prior to the trial. This was competent.

The second exception is without point as the testimony objected to was stricken out by the court on motion of the propounders.

The third exception was to permitting the propounders' witness to state on cross-examination that from his experience and observation of the deceased he was entirely under the domination, direction, and control of the Christian Scientist people, who were the principal beneficiaries of the will. This was competent on the third issue and also as tending to contradict this witness' testimony as to the mental capacity of the deceased to make a will.

The fourth exception is that the same witness stated on cross-examination that in his judgment the deceased was crazy and of unsound mind when he signed the will. This was competent (Clary v. Clary, 24 N. C. 78), and besides because it was in direct contradiction of the testimony of this witness, who was a witness to the will and who had stated on his examination in chief that the deceased was of sound mental condition when he signed the will.

The fifth exception was to the refusal to strike out that portion of this witness' evidence on cross-examination because on re-examination the witness was of opinion that the deceased was of sound mind. The witness having stated his testimony differently, both phases of it should have been presented to the jury.

The sixth exception as to the dependent condition of the wife of the deceased, and her inability to take care of herself, was competent in corroboration of the evidence as to the mental incapacity of the defendant, since he devised the bulk of his property to the Christian Scientist people, leaving his wife and daughter who had supported him for so many years practically destitute.

The seventh exception was for the admission of the opinion of the witness Mrs. Bell as to the mental condition of her father's mind for a few years prior to his death. The eighth and ninth exceptions as to the influence exerted by the propounders over the deceased it is unnecessary to consider, since the jury did not pass upon the issue as to undue influence. If they considered this testimony at all it could have been only from the light it threw upon the issue as to mental incapacity, and for that purpose it was competent.

The tenth and eleventh exceptions were to the testimony of the daughter of the deceased that she practically supported the family, and this was competent in corroboration as tending to show the unsound mental condition of the testator in devising his property away from his wife and daughters.

The twelfth exception was to the testimony that the mind of the testator had become unsound and his conversation that of a monomaniac on the. subject of Christian Science.

The prayer of the propounders to instruct the jury that the evidence was not sufficient to set the will aside was properly refused. The issue was one for the jury upon the whole evidence.

It was in evidence that the deceased did not support or provide for his family, and that his daughter paid the grocery bill and meat bill and paid the rent, and that the other children contributed to their mother's support. Though the deceased had an income of $50 per month he contributed only $7 to the support of the family. By his will he devised the small amount of personal property he had, and $2,500 in...