Stewart v. Stewart

• Court: North Carolina Supreme Court
• Writing for the Court: CLARK
• Citation: Stewart v. Stewart, 155 N.C. 341, 71 S.E. 308 (N.C. 1911)
• Decision Date: 26 May 1911
• Parties: STEWART. v. STEWART.

155 N.C. 341

71 S.E. 308

STEWART.

v.STEWART.

Supreme Court of North Carolina.

May 26, 1911.

1. Evidence (§ 474^*)—Opinions—Testamentary Capacity.

In a will contest, a statement of a witness who had known testator for 25 years, and who had had numerous business transactions with him, the last about three months before hisdeath, that he retained his mental faculties to the last, was competent.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 2199; Dec. Dig. § 474.^2-*]

2. Witnesses (§ 372*)—Impeachment—Cross-Examination.

In a will contest, it was competent to ask a witness on cross-examination if he had not gone to the home of testator and removed some of its contents to the house of the caveator to impeach the witness, and to show his feelings in the case.

[Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 1192-1199; Dec. Dig. § 372.*]

3. Wills (§ 164*)—Probate—Evidence—Admissibility.

The question was competent to show the state of feeling between testator and the caveator, a son, which might have influenced testator in the disposition of his property.

[Ed. Note.—For other cases, see Wills, Cent. Dig. § 406; Dec. Dig. § 164.*]

4. Evidence (§ 472*) — Conclusion — Witnesses.

In a will contest, a question asked a witness as to what influence testator's wife seemed to exert over him was improper as calling for a conclusion of the witness on a question which was for the jury on the facts proved.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 2186-2195; Dec. Dig. § 472.*]

5. Evidence (§ 474*)—Opinions — Testamentary Capacity—Knowledge or Witness.

The condition of testator's mind may be shown by any one having an opportunity for observation, subject to cross-examination to test the value of the opinion expressed by the witness.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 2199; Dec. Dig. § 474.*]

Appeal from Superior Court, Macon County; Ferguson, Judge.

Proceedings by Henry Stewart to contest the probate of a will propounded by Cassie Stewart. From a judgment probating the will, the caveator appeals. Affirmed.

R. D. Slsk, Robertson & Benbow, A. M. Fry, and G. L. Jones, for appellant.

A. W. Horn and J. Frank Ray, for appellee.

CLARK, C. J. This is an issue of devisavit vel non.

The caveator is the son by the first marriage. The propounder is the second wife and the chief beneficiary under the will. Dobson, a witness for the propounder, certified that he had been acquainted with the testator for 25 years; was at one time his neighbor for 7 years; had numerous transactions with him, mostly in land deals, the last being about three months before his death; had seen him frequently, had never detected anything wrong with his mind, was acquainted with his handwriting; that his mental condition was good so far as he knew, and "that he still retained his mental faculties to the last." The caveator excepted to the last expression, but we think it competent. Smith v. Smith, 117 N. C. 326, 23 S. E. 270.

The exceptions as to the identification of the will were properly withdrawn in this court.

As to exception 7, it was competent upon cross-examination to ask the witness Webb if he had not gone to the home of the testator and removed some of its contents to the house of the caveator. This was competent to impeach the witness, and tended to show his feelings in the case and a state of feeling between the father and son which might have influenced the testator in the disposal of his property. The caveator introduced the deposition of Mrs. Durgin, and the court refused to permit the following question and answer: "Q. What influence did Cassie 'Stewart seem to exert over Henry Stewart, Sr.? A. She certainly seemed to do most of the talking, and he seemed to be under her thumb a good deal." The question was excluded upon the ground...