Tatum's Will, In re, 750

• Decision Date: 07 June 1951
• Docket Number: No. 750,750
• Citation: 233 N.C. 723,65 S.E.2d 351
• Court: North Carolina Supreme Court
• Parties: In re TATUM'S WILL.

Page 351

65 S.E.2d 351

233 N.C. 723

In re TATUM'S WILL.

No. 750

Supreme Court of North Carolina.

June 7, 1951

Egbert L. Haywood, Durham, for propounders, appellants.

Victor S. Bryant, Robert I. Lipton, Ralph N. Strayhorn, Victor S. Bryant, Jr., and Fuller, Reade, Umstead & Fuller, all of Durham, for caveator, appellee.

JOHNSON, Justice.

The testator was an inmate of Watts Hospital in the City of Durham from 23 January, 1950, until his death on 2 March, 1950. The will was executed in the hospital on 17 February, 1950. Mrs. I. J. Newton, a registered nurse who was on duty at the hospital during the testator's last illness, was called as a witness by the propounders. She testified that the testator was a patient on Ward K, to which she was assigned during the period he was a patient at the hospital, and that she administered to him and saw and talked to him from time to time. The following examination then ensued:

'Q. Mrs. Newton, based upon your conversations and your observations, do you have an opinion satisfactory to yourself as to whether Mr. Tatum possessed on February 17, 1950, sufficient mental capacity to know what property he had, who his relatives were, what claims they had upon him and whether he was capable of disposing of his property by will and of understanding the consequences and effect of so doing: do you have such an opinion? A. I do have such an opinion.

'Q. What is your opinion, Mrs. Newton? A. Well, in my opinion February 17th was not any different date to him than any other day that he was in the hospital. I observed by his conversations that I had with him frequently that he knew what he was doing; he read the newspapers, he was a very witty person and the jolliest person on the ward, and when anybody told him a joke it just did everybody good to hear him laugh.

'Motion to strike on the grounds it is not responsive. Motion allowed.

'Court: You will not consider the answer, gentlemen of the jury.

'Exception.

'Q. I will ask you: do you have an opinion satisfactory to yourself as to whether Mr. Tatum possessed on February 17, 1950, based upon your conversations and your observations, sufficient mental capacity to know what property he had, who his relatives were, what claims they had upon him, and whether he was capable of disposing of his property by will and of understanding the consequences and effect of so doing; do you have such an opinion. A. I do.

'Q. What is it: Just state your opinion and you can show your basis and make your explanation. State your opinion, if you will, please. A. In my opinion, I feel that he knew what he was doing, as he always did. There is not a doubt in my mind that he didn't know what he was doing.

'Motion to strike as not being responsive.

'Motion allowed.

'Exception.'

Counsel for the propounders pursued the examination through several further questions. It produced nothing of substance for the record. The witness was then excused.

There was no objection to the form of the foregoing questions. The caveator's challenges were directed solely to the answers of the witness. The caveator moved to strike the answers on the ground they were not responsive to the questions. The propounders insist that the court erred in allowing the motions, and that this is so, even though it be conceded that the answers were not responsive to the questions.

Propounders' position appears to be well taken. Whether the answers were responsive to the questions is not controlling. The determinative question before the court below was whether the answers were relevant and competent as bearing upon the issue of mental capacity of the testator. If the answers furnished relevant facts, they were none the less admissible merely because they were not specifically asked for. Silence may not be imposed to eliminate relevant, pertinent testimony simply because it is not specifically requested. This rule is rooted in the fundamental tenets of natural justice and is supported by common sense. Its universal application can do no harm, for if an unresponsive answer produces irrelevant facts, they may be stricken out and withdrawn from the jury. See Huffman v. Gaither Lumber Co., 169 N.C. 259, 85 S.E. 148; Hodges v. Wilson, 165 N.C. 323, 81 S.E. 340. See also Wigmore on Evidence, Third Edition, Vol. III, Sec. 785, p. 160, where it is said: 'Courts ought to cease repeating the novel and unwholesome assertion that ' where an answer is not responsive to the question put, it is the duty of the Court to strike it out, on motion.' * * * This topic of responsiveness has somehow become in modern times beset with crude misunderstandings, that tend to suppress truth and turn the inquiry into a logomachy: * * *.'

It is elementary that in the trial of a case involving the issue of testamentary capacity, a lay witness, who qualifies by showing he has had opportunity to form a reasonably reliable appraisal of the mental powers of the testator, may give an opinion or opinions as to the testator's measure of mental capacity to deal with certain given factual situations. And while a witness who gives an opinion as to testamentary capacity may also state observed facts about the conduct of the testator on which the opinion is based, it is not necessary that this be done. 'All that needs to appear in advance is that he had an opportunity to observe and did observe, whereupon it is proper for him to state his conclusions, leaving the detailed grounds to be drawn out on cross-examination.' Wigmore on Evidence, Third Edition, Vol. VII, Sec. 1922, p. 20, citing and commending opinion by Stacy, J. (now C.J.) in State v. Hightower, 187 N.C. 300, 121 S.E. 616. See also Wigmore on Evidence, Third Edition, Vol. VII, Sec. 1935, p. 35.

It is established by our decisions that in the trial of a will case a qualified witness may express an opinion or opinions that the testator did or did not have sufficient mental capacity to know (1) the nature and extent of his property; (2) who were the natural objects of his bounty, that is, those persons who would or should or might be expected to take his property in the absence of a will, Vol. 28, Words and Phrases, page 49; and (3) what he was doing, and to whom he wished to give his property and how, that is, the force and effect of his act in making a will, thereby disposing of his property. In re Will of York, 231 N.C. 70, 55 S.E.2d 791; Clary's Adm'rs v. Clary, 24 N.C. 78. And in the examination of a lay witness, it is not necessary, as intimated by the court below, for counsel to compress into a single question several elements of approved factual tests of testamentary capacity or lack of it. Nor is it required that a witness include all elements in the response. No sound reason is perceived why a witness may not express an opinion that embraces only part of the approved factual elements of the presence or absence of testamentary capacity. Frequently,--as possibly in the instant case,--a witness may feel only partially qualified to express an opinion as to the several tests included in an all-embracing question. Besides, when a lack of testamentary capacity is sought to be shown, it may suffice to establish the absence of only one of the essential factual elements. And, too, in deference to the mental processes of some witnesses, it is frequently not amiss for examining counsel to limit the scope of each question, and move through the zone of opinioninquiry step by step, rather than in one leap.

And, of course, a nonexpert witness who appears to be qualified to give an opinion, nevertheless may refrain from doing so, and elect instead to relate the facts observed...