Thompson's Will, In re

• Decision Date: 30 June 1958
• Docket Number: No. 740,740
• Citation: 104 S.E.2d 280,248 N.C. 588
• Court: North Carolina Supreme Court
• Parties: In The Matter of The WILL of Jerry M. THOMPSON, Deceased.

Page 280

104 S.E.2d 280

248 N.C. 588

In The Matter of The WILL of Jerry M. THOMPSON, Deceased.

No. 740

Supreme Court of North Carolina.

June 30, 1958

B. F. Wood, Graham, M. Glenn Pickard and Sanders & Holt, Burlington, for propounder, appellant.

Clarence Ross, Graham, and P. W. Glidewell, Jr., Reidsville, for caveators, appellees.

PARKER, Justice.

The propounder has 185 assignments of error.The first assignments of error discussed in his brief are based upon his exception to the submission of the third issue to the jury, and upon his exception to the refusal of the court to give peremptory instructions in his favor on each issue.The court gave a peremptory instruction in his favor on the first issue.The jury answered the second issue, 'Yes.'The discussion in the propounder's brief is, therefore, restricted to the refusal of the court to give peremptory instructions in his favor on the third and fourth issues.

Caveators offered evidence tending to show the following facts: Jerry M. Thompson was 85 years old in December 1954.His wife died in 1935.From then until his death on 20 July 1956, he continued to live in his home in Burlington.When he died he had twelve living adult children.From 1943 to 1954he had roomers in his home, and a daughter, Marcre Thompson Haith'was in and out living there.'During the same time his daughter, Doretha Thompson Bahadur, who was then living in Burlington, saw her father two or three times a day, and frequently spent the night at his home.His daughters, Lovelia Thompson Cobb and Zonie Thompson Holt, who lived in New York, visited him several times a year.A son, Kirk Thompson lived with him in his home from December 1953 until his death.A daughter, Cordell Thompson Clayton, who lived from 1950 to 1956 in Burlington and New York, stayed with her father several times in 1953 and 1954 for periods of two or three weeks to two months.His son, the propounder Mack B. Thompson, lives in Burlington.His other children live outside of North Carolina.

In early 1953Jerry M. Thompson fell from his backdoor step to the basement twisting his spine, and there was a hole in his intestines.He was in a hospital from 16 to 24 February 1953.After his return home from the hospital, he moved around on two canes.In September 1954, he was very feeble and senile.He was forgetful, and didn't know people.His mental condition was bad.He would forget he had eaten, and where he was.He was highly nervous.

In October 1954Jerry M. Thompson, Mack B. Thompson and Walter D. Barrett, a lawyer, came into the office of the Sheriff of Alamance County in the courthouse.When they came in, Mack B. Thompson had his father by the arm.Walter D. Barrett had a paper.The paper was put on a desk.A chair was pulled up, and Jerry M. Thompson sat down.In the Sheriff's office the paper was not read to Jerry M. Thompson.Mack B. Thompson said to his father, 'here, sign this.'Jerry M. Thompson was nervous and pretty feeble, and it took him a long time to sign his name.Mack B. Thompson took his father away.A Loy boy was there.

The purported will bears the names of Walter D. Barrett and John H. Loy as subscribing witnesses.The evidence of the subscribing witnesses, offered by the propounder, is to this effect: On 19 October 1954Jerry M. Thompson, who was alone, saw Walter D. Barrett in the Alamance County Courthouse, and asked him to draft his will, telling him what he wanted put in it.The will was drafted by Barrett in the Patrol office in the courthouse in the presence of Jerry M. Thompson.The same day the will was signed in the Sheriff's office by Jerry M. Thompson, and by Walter D. Barrett and John H. Loy as subscribing witnesses.

Lovelia Thompson Cobb came from New York to visit her father during the Christmas Season 1954.He was upset, and she and her father tried, without success, to locate a paper he had signed.On that visit she saw Mack B. Thompson at her father's home, and asked him, 'what was the paper papa was trying to get from him?'He replied: 'Some papers.We destroyed the papers.'She asked him, 'what papers did you destroy?'He replied: 'None of your business.* * * Mind your own g. d. business, this is between papa, me and Barrett.I got Barrett for papa and he is not a drunkard, and if he is a drunkard, he is a good lawyer and I know what I am doing.I will pay papa the $4,000.00 when I get it.* * * Barrett is a drunkard but he was a good lawyer and he does my dirty work.'

Doretha Thompson Bahadur testified that the first time she knew of the paper her father signed in the courthouse was five days after his death, and that she asked Mack B. Thompson was that the same paper he had in the hospital.Mack B. Thompson replied: 'You see what I done.Mind your own damned business, or I put the Justice of the Peace on you, Mr. Harden.'

Cordell Thompson Clayton testified that in 1954she asked Mack B. Thompson, what was the paper he tried to get their father to sign, and he replied: 'None of your g. d. business.You all are too g. d. meddlesome.You got yours; ain't that enough?'

While Jerry M. Thompson was in the hospital in February 1953, Mack B. Thompson brought him beer to drink, and on two occasions had a paper in his hand, and was asking his father to sign it.Jerry M. Thompson made no answer because he was doped.

During 1953 and 1954Mack B. Thompson brought whisky, wine or beer to his father once or twice a week.In the spring or summer of 1954Doretha Thompson Bahadur found her father and Walter D. Barrett at Mack B. Thompson's place of business, where he sells beer, wine, groceries, gas, oil, etc.Mack B. Thompson was there.Barrett was drunk, and her father was weaving.Mack B. Thompson called her vile names.She carried her father away.

In passing upon the questions as to whether the trial court committed error in submitting the issue of undue influence, and committed error in refusing to give a peremptory instruction on that issue in the propounder's favor, we have not deemed it necessary to state the propounder's evidence contra on that issue.Neither is it necessary to state all of the caveator's evidence.

The rationale of the doctrine of undue influence sufficient to avoid a will is that influence is exerted by various means of a kind that so overpowers and subjugates the mind of the testator as to destroy his free agency, and to make him execute a will, which, although his, in outward form, is in reality not his will, but the will of another person, which is substituted for that of the testator.In re Will of Kemp, 234 N.C. 495, 67 S.E.2d 672;In re Will of Turnage, 208 N.C. 130, 179 S.E. 332;In re Mueller's Will, 170 N.C. 28, 86 S.E. 719;In re Abee's Will, 146 N.C. 273, 59 S.E. 700;Marshall v. Flinn, 49 N.C. 199.

The undue influence which renders a will invalid must be of a kind which operates on the mind of the testator at the very time the will is made, and causes its execution.Page on Wills, LifetimeEd., Vol. 1, sec. 191, where many cases are cited;94 C.J.S.Wills§ 224, pp. 1071-1073.'It is not material when the undue influence was exercised, if it was present and operating on the mind of the testator at the time the will was executed.'57 Am. Jur., Wills, sec. 353.

Undue influence is frequently employed surreptitiously, and is chiefly shown by its results.When the issue of undue influence is raised, the question presented is usually one of the effect of a long course of conduct upon the mind of the testator at the time the will is made, and the evidence by which it is established is usually circumstantial.In re Will of Lomax, 226 N.C. 498, 39 S.E.2d 388;In re Stephens' Will, 189 N.C. 267, 126 S.E. 738;In re Will of Everett, 153 N.C. 83, 68 S.E. 924.

In the Lomax case, speaking of evidence to show undue influence in a will case, the Court said: 'Almost necessarily the proof must cover a multitude of facts or circumstances going into the pattern, in the making of which the evidence of many witnesses may have separate, but interrelated, parts, shading from light to heavy.We cannot judge of the importance of the bit of mosaic being laid at the time or the part of the pattern being woven except in connection with the whole design.'

In Page on Wills, LifetimeEd., Vol. 2, sec. 812, it is written: 'Evidence which tends to prove or disprove the subordination of the will of testator to others must, except in extreme cases, take a very wide range.Evidence which shows an opportunity and disposition to exert undue influence, the degree of susceptibility of testator to undue influence, and a result which indicates that undue influence has been exerted, are all admissible.'

Lovelia Thompson Cobb testified that she came home to see her father in 1953 after his fall in January or February 1953.He was then 84 years old.When she then saw him at his home, she gave this testimony as to his condition: 'He stayed in bed a good deal after 1953, but he wasn't disabled so he couldn't get in and out.He was tired and he rested a great deal.When I came in, Papa didn't recognize me.'Propounder assigns as error the refusal by the court, on his motion, to strike out this testimony.In his brief he objects to these words: 'Papa didn't recognize me.'This assignment of error is overruled.Because the strength or weakness of mind of a testator and his susceptibility to influence are important in determining whether undue influence was exerted, the mental and physical condition of Jerry M. Thompson, together with his age, less than two years prior to the signing by him of the challenged paper writing, is, under an issue of undue influence, a proper subject for consideration by the jury, and evidence tending to show such condition is admissible.In re Will of Ball, 225 N.C. 91, 33 S.E.2d 619;In re Stephens' Will, supra;In re Will of Hinton, 180 N.C. 206, 104 S.E. 341;McDonald v. McLendon, 173 N.C. 172, 91 S.E. 1017;Linebarger v. Linebarger, 143 N.C....