Mitchell v. Corp.Ening

• Court: North Carolina Supreme Court
• Writing for the Court: MONTGOMERY, J
• Citation: Mitchell v. Corp.Ening, 32 S.E. 798, 124 N.C. 472 (N.C. 1899)
• Decision Date: 18 April 1899
• Parties: MITCHELL et al. v. CORPENING et al.

32 S.E. 798

(124 N.C. 472)

MITCHELL et al.

v.CORPENING et al.

Supreme Court of North Carolina.

April 18, 1899.

Wnxs—Mental Incompetenot — Evidence — Instructions—New Trial, —Jury—Counsel.

1. For an attorney in a cause to give the jurors in the box a drink of water at their request is not cause for new trial.

2. To refuse an instruction on insanity in a will contest, where the evidence tends to prove imbec'iity only, is not error.

3. It is not error to refuse an instructios which is covered by the main charge.

4. In proving imbecility of a testatrix, evidence of gradual decline having been introduced, her mental incapacity a few days after execution of the will may be shown.

Appeal from superior court, Caldwell county; Coble, Judge.

F. B. Mitchell and others filed a caveat tc a will propounded by A. J. Corpening and others. From a judgment for caveators, pro-pounders appeal. Affirmed.

Edmund Jones, for appellees.

MONTGOMERY, J. The appellants were not represented here by counsel, nor was there a brief filed in their behalf; in fact, the case on their part seems to have been abandoned; and, upon our reviewing it, we feel safe in saying that in that respect, at least, their course was a wise one.

The first exception was to what the appellants call the conduct of one of the counsel of the caveators on the trial. The offending lawyer during the trial, in open court, went to the water pitcher near the jury box, and quenched his own thirst with a glass of water; several jurors, taking the contagion, gave him a sign that they too would like to partake of the cooling draught, whereupon he politely waited on them. For which cause it is insisted that the supreme court ought to grant a new trial of the case. This, to us, seems to be trifling with the court.

The second exception was to the refusal of his honor to instruct the jury that "sanity is the natural and usual condition of the human mind, and every person is presumed to be sane. If the deceased was not insane, then the execution of her will was a valid one." The first sentence of the requested instruction was taken word for word, from the opinion of the court in the case of Wood v. Sawyer, 62 N. C. 277. In that case the caveat to the will was filed on the alleged ground of the insanity of the testator. In the case before us the foundation of the caveat to the will is not the alleged insanity of the testatrix at the time of its execution, but her imbecility of mind growing out of weakness produced by a long-continued illness; and there was not a syllable of the evidence introduced for the purpose of showing insanity of the testatrix, or that tended to prove it. There was, however, testimony strongly tending to prove imbecility (total mental incapacity), as well as great physical exhaustion from weakness and disease. The instruction could not have been given in any view of the case.

The third exception was to the refusal of the court to charge the jury "that the caveators impeaching the validity of the will must affirmatively show the want of capacity, or the exercise of undue influence, which is defined to be influence by fraud or force, and they must show its application to the making of the will. How this exception could be insisted on, in the face of the instruction on the pointwhich his honor gave in the general charge, is a puzzle to us. His honor said: "Did she, the said Lucinda L. Tuttle, at the time of the execution of the script or writing in question, have sufficient mental capacity to understand the nature and character of the property disposed of, to whom she was giving her property, and how she was disposing of the...