Smith v. Smith

• Decision Date: 26 November 1895
• Citation: 23 S.E. 270,117 N.C. 348
• Court: North Carolina Supreme Court
• Parties: SMITH et al. v. SMITH et al.

23 S.E. 270

117 N.C. 348

SMITH et al.

v.SMITH et al.

Supreme Court of North Carolina.

Nov. 26, 1895.

Undue Influence in Procuring Deed—Mental Capacity of Grantor—Opinion Evidence.

4. On an issue as to the mental capacity of a grantor, a nonexpert witness, after testifying that he had an opportunity to judge of such capacity, may state that it "was good."

2. On an issue as to whether a deed wag procured from a deceased grantor through undue influence, a witness cannot state that the grantor was one who could not be influenced by "any power on earth, " such opinion being an invasion of the province of the jury.

3. Such opinion was inadmissible on the further ground that it is not one which a nonexpert is permitted to draw from mere association and observation.

Appeal from superior court, Columbus county; Norwood, Judge.

Action by D. P. Smith and another against M. C. Smith and another to set aside a deed for fraud and undue influence. Judgment for defendants, and plaintiffs appeal. Reversed.

Lewis & Burkhead, for appellants.

J. D. Bellamy, Jr., and Du Brutz Cutlar, for appellees.

AVERY, J. Having stated that he had opportunity to judge of the mental capacity of the grantor, whose deed the plaintiffs seek to set aside for undue influence and fraud, the witness Bellamy, though not an expert, was competent to express the opinion, founded upon association with the grantor, that it "was good." Clary v. Clary, 2 Ired. 78. No objection was made by the plaintiff to that or the further testimony that he "was a good business man, clear headed, and very accurate, " and "was a man of great will power." But, conceding that he was competent to show both the mental condition and the marked characteristics of the deceased, did he not transcend the limit prescribed for the ordinary witness, if not for the expert, when he delivered an opinion which, if concurred in by the jury, determined the very question of fact upon which the controversy depended? If the jury believed that H. C. Smith could not be influenced by any "power on earth, " whether the effort to divert him from a fixed purpose was made by friend or foe, of course it followed that the execution of the deed and bills of sale to M. C. Smith, his wife, was not procured by undue influence on her part, as contended by the plaintiff. It is the general rule that an ordinary witness, at least, if not an expert, after stating the mental condition, character, or temper of a person, is incompetent to go further, and give expression to his belief that, in consequence of the state, character, or temper, as described, such person would or would not do an act attributed to him, and Upon...