Ricks' Will, Matter of

• Decision Date: 08 February 1977
• Docket Number: No. 87,87
• Citation: 231 S.E.2d 856,292 N.C. 28
• Parties: In the Matter of the WILL of Betty Futrell RICKS, Deceased.
• Court: North Carolina Supreme Court

Page 856

231 S.E.2d 856

292 N.C. 28

In the Matter of the WILL of Betty Futrell RICKS, Deceased.

No. 87.

Supreme Court of North Carolina.

Feb. 8, 1977.

Johnson, Johnson & Johnson by Bruce C. Johnson, Conway, for propounder appellant.

Weeks, Muse & Surles by T. Chandler Muse and Cameron S. Weeks, Tarboro, for caveators appellees.

EXUM, Justice.

The principal question on this appeal is whether it was a violation of General Statute 8--51 ¹ and error prejudicial to the caveators to permit the propounder to testify to certain personal transactions and communications between the witness and the deceased relating to the execution of the script sought to be propounded. A majority of the Court of Appeals' panel thought it was, on the ground that this testimony tended to prove 'facts essential to establish the will as the voluntary act of the testator and rebut the charge of undue influence . . ..' The majority further ruled that it was impossible for the trial judge to remove this prejudice, as he attempted to do, by instructions directing the jury to consider this evidence only on the issue of the deceased's mental capacity. Judge Britt was of the opinion that admitting the testimony, if error, was not prejudicial inasmuch as 'the case was tried primarily upon the issue of lack of mental capacity,' the only evidence of undue influence, if any at all, being the very testimony about which the caveators complain. Our view of the case is more nearly like that of Judge Britt's and we reverse.

Betty Futrell Ricks, a resident of Northampton County, died 25 July 1974 survived by five daughters and one son. By writing dated 12 July 1973, purporting to be an attested written will, she sought to devise and bequeath all of her property to her son, Grady Ricks, who was also named executor. After the writing was probated in common form at the instance of Grady Ricks, his five sisters filed a caveat alleging that the writing was the product of the deceased's mental incapacity and undue influence exercised upon her by her son.

The caveat came on for trial at the 7 April 1975 Session of Northampton Superior Court. Four issues were submitted to the jury and answered as follows:

'1. Was the paper writing propounded, dated the 12th day of July, 1973 executed by Betty Futrell Ricks, according to the formalities of the law required to make a valid Last Will and Testament?

'Answer: Yes.

'2. At the time of signing and executing said paper writing did said Betty Futrell Ricks have sufficient mental capacity to make and execute a valid and Last Will and Testament?

'Answer: Yes.

'3. Was the execution of the paper writing propounded in this case procured by undue influence as alleged?

'Answer: No.

'4. Is the said paper writing referred to in Issue No. 1, propounded in this cause, and every part thereof, the Last Will and Testament of Betty Futrell Ricks, deceased?

'Answer: Yes.'

The propounder and caveators stipulated that the proper answer to the first issue was 'Yes' and the court so instructed the jury. Judgment on the verdict decreed that the writing offered for probate was the last will and testament of Betty Futrell Ricks.

The principal witnesses in the propounder's case in chief were the attorney who drew the will and his secretary who typed it. Both recalled the deceased and her son coming to the attorney's office together. The secretary could recall no conversation she had with either but did recall Mrs. Ricks asking her to witness the will after it was drawn. The attorney recalled that the propounder introduced his mother and said that she wanted the attorney to prepare her will; that Mrs. Ricks told him that she wanted to leave everything to her son and to appoint him executor; and that it was a 'completely normal transaction and she seemed to be a completely normal person. It was nothing that struck me to indicate or arouse any suspicion that she was incompetent.' He recalled that he prepared the will and at some later day the propounder and his mother returned for the purpose of executing it. It was his opinion that Mrs. Ricks on these occasions possessed the requisite testamentary capacity.

Caveators called some seventeen witnesses who testified regarding the deceased's mental capacity. All but three were either caveators or children of caveators. The caveators and their children all testified to a lack of testamentary capacity on the part of the deceased. Most of these witnesses related a dramatic decline in her mental acuity after she was injured in an automobile accident in July, 1972. According to these witnesses the deceased was mentally normal before this accident. After it, however, she would often become confused and disoriented, failed to recognize her children and grandchildren at times, and at times would not know where she lived or what she owned. There was testimony that the deceased was born 16 December 1891 and at the time of her death left surviving six children, seventeen grandchildren and sixteen great-grandchildren.

Three witnesses, unrelated to the family, gave similar opinions regarding her testamentary capacity. One was a physician who had treated the deceased for a fractured wrist on 6 November 1973 and who saw her periodically for five or six weeks thereafter. He last saw her on 1 January 1974. Another was the deceased's housekeeper, who worked in the deceased's home one day a week from the late summer of 1973 until May, 1974. A third was a friend of the family.

Evidence for the propounder consisted of the testimony of his daughter, his wife, and himself together with the minister at the church where the family attended, the family physician, and a close neighbor of the deceased. These witnesses were all of the opinion that the deceased at relevant times had sufficient testamentary capacity. The propounder's daughter was of the opinion that the deceased failed rapidly, mentally and physically, beginning in January, 1974, and that by May, 1974, she lacked the necessary capacity to make a will. The propounder's wife testified that on Sunday, 8 July 1973, the deceased told her that she wanted her son to have her house and lot. Then, over objection, she testified that the deceased related that her husband had built the house for their son while the son was in service during the Second World War, had stopped work on it for several months while the son was missing in action, and began work again after the son was determined to be safe. Without objection she testified that the deceased said, 'When brother comes back from work which is 11:30, tell him I want to see him tomorrow morning. I want to make arrangements to make a will and talk it over with him.'

The propounder then testified, in part, that as a result of his wife's relating this conversation to him he went to his mother's home the next day. Before he testified as to what transpired between him and his mother, the trial judge after a bench conference with attorneys instructed the jury:

'(A)ny party who is interested in the outcome of a lawsuit such as this, that is, the Propounder . . . or the Caveators . . . cannot testify to transactions between themselves and Mrs. Ricks, the lady who is dead. They cannot testify to those transactions, that is for the purpose of proving the facts which might have been recited in that transaction. They can, however, testify to conversations that they had with Mrs. Ricks solely for the purpose of offering evidence concerning her mental capacity, so when you hear any transaction or conversation between this witness, who is an interested party, and the Caveators also when you hear that testimony, you will keep in mind that you will only consider it as bearing upon what it might show with regard to the mental capacity of the late Mrs. Ricks. It is not for any other purpose. All right, with that instruction to the jury, the objection is overruled.'

The propounder then proceeded to testify that his mother told him she wanted to make a will and to leave him the house and lot where she lived. (This property apparently constituted the bulk of her estate.) She asked him to suggest a lawyer. He did. She asked him to take her to the lawyer. He then returned home, called the lawyer's office and made an appointment for the next day. The next day he took his mother to the lawyer's office. His mother told the lawyer she wanted to make her will and asked if the lawyer would write it. The lawyer agreed to write it. The lawyer and his mother conferred as to her wishes about it. He took his mother back to the attorney's office on 12 July 1973 for the purpose of executing the will. The attorney then read the will to his mother. His mother read it and said that it was like she wanted it. She executed the instrument and the attorney and his secretary witnessed it at her request. His mother asked the attorney to keep the will for her and she paid him. After this testimony the trial judge again instructed the jury that they should not consider it for the purpose of proving 'the facts therein recited but only as bearing upon the question of the mental capacity of Mrs. Ricks.' The propounder was then asked whether based upon his 'conversation and observations' of his mother during 1970--73 and 'especially July 12, 1973' (emphasis added), he had an opinion regarding whether the deceased possessed each of the requisite elements of testamentary capacity on July 12, 1973. To each question he replied that he had an opinion. It was that his mother had the requisite mental capacity in all respects inquired about.

This is one of those cases in which the legal principles to a point are well established. The difficulty arises in applying them to the facts. It was early held that a caveator or a propounder in a will contest is a 'party' to whom the prohibitions and exceptions of General Statute 8--51 apply. Pepper v. Broughton, 80 N.C. 251 (1879). It is also the rule that a party or an interested witness may, notwithstanding ...