Kemp's Will, In re

• Decision Date: 21 November 1951
• Docket Number: No. 392,392
• Citation: 234 N.C. 495,67 S.E.2d 672
• Court: North Carolina Supreme Court
• Parties: In re KEMP'S WILL.

Page 672

67 S.E.2d 672

234 N.C. 495

In re KEMP'S WILL.

No. 392

Supreme Court of North Carolina.

Nov. 21, 1951

Ottway Burton and Larry T. Hammond, Asheboro, for caveators, appellants.

H. R. Anderson and H. M. Robins, Asheboro, for propounder, appellee.

JOHNSON, Justice.

The trial court properly refused to submit the issue of undue influence. Here, the caveators contend it was shown by the evidence that the testatrix in making the will was unduly influenced by her brother David J. Kemp, who died 13 days before the will was made. It is not suggested that any one except David unduly influenced the testatrix. The caveators rest this exception solely on the theory of the posthumous continuation of undue influence allegedly exerted by the brother during his lifetime. In effect, the caveators contend that the hand from the grave reached up and wrote the will.

Conceding, but not deciding, that there is no sound reason why upon proof of the exertion of undue influence it may not be shown to have continued to operate in a controlling manner on the mind of the victim after the death of the person alleged to have exercised it, Penniston v. Kerrigan; 159 Ga. 345, 125 S.E. 795; Trust Co. of Ga. v. Ivey, 178 Ga. 629, 173 S.E. 648; 13 N.C.Law Rev. 268. But compare Henderson v. Jackson, 138 Iowa 326, 111 N.W. 821, 26 L.R.A.,N.S., 479, even so, on this record there is no showing of undue influence on the part of the deceased brother David J. Kemp.

To constitute undue influence, within the meaning of the law, as stated by Stacy, C. J., in Re Will of Turnage, 208 N.C. 130, 179 S.E. 332, 'there must be something operating upon the mind of the person, whose act is called in judgment, of sufficient controlling effect to destroy free agency and to render the instrument, brought in question, not properly an expression of the wishes of the maker, but rather the expression of the will of another. ' It is the substitution of the mind of the person exercising the influence for the mind of the testator, causing him to make a will which he otherwise would not have made.'

'In short, undue influence, which justifies the setting aside of a will, is a fraudulent influence, or such an overpowering influence as amounts to a legal wrong. * * It is close akin to coercion produced by importunity, or by a silent, resistless power, exercised by the strong over the weak, which could not be resisted, so that the end reached is tantamount to the effect produced by the use of fear or force. To constitute such undue influence, it is not necessary that there should exist moral turpitude, but whatever destroys free agency and constrains the person, whose act is brought in judgment, to do what is against his or her will and what he or she otherwise would not have done, is a fraudulent influence in the eye of the law. * * *' 208 N.C. at pages 131 and 132, 179 S.E. at pages 333. See also: In re Ball's Will, 225 N.C. 91, 33 S.E.2d 619; In re Evans' Will, 223 N.C. 206, 25 S.E.2d 556; In re Harris' Will, 218 N.C. 459, 11 S.E.2d 310; In re Turnage's Will, 208 N.C. 130, 179 S.E. 332; In re Hurdle's Will, 190 N.C. 221, 129 S.E. 589.

There is no evidence that David J. Kemp during his lifetime said or did anything to the testatrix which might be construed as amounting to an overpowering influence or as tending in any way to coerce her actions or destroy her free will. In fact, aside from the recitals in the will, the only evidence in the record that she ever discussed with her brother David the making of a will is the testimony of the attorney who drew the will. He said she told him 'she and her brother had often discussed their affairs and that they had decided that they were going to give their property to the orphan children of the county, and they thought that the Randolph Hospital could better administer it, and that she wanted to carry out her wishes and the wishes of her brother.' Besides, the record indicates that the testatrix lived more than three years after the will was made. Yet there is no evidence that she ever intimated any discontent with the will or suggested that its terms were not in accord with her wishes.

It follows, therefore, that the assignment of error based on the refusal of the court to submit the issue of undue influence may not be sustained.

However, there appears to be substantial merit in the caveators' exceptive assignments to the charge of the trial court as to the...