BROGDEN, J., dissenting; CLARKSON, J., concurring in dissent.
Proceeding for probate of paper-writing, propounded as the last will and testament of George H. Brown, deceased.
The issue submitted to and answered by the jury was as follows: "Is the paper-writing, dated 5 January, 1926, propounded for probate, and every part thereof, the last will and testament of George H. Brown?" Answer: No.
From judgment on the verdict, propounder appealed to the Supreme Court.
George H. Brown died at his home in the town of Washington, Beaufort County, N.C. on 16 March, 1926. He was born in said town on 3 May, 1850. He was therefore in his seventy-seventh year at the date of his death.
From 1872, when he was duly licensed to practice as an attorney and counselor at law in this State, until 1889, when he was appointed judge of the Superior Court for the First Judicial District, he was actively and continuously engaged in the practice of his profession. From 1889 to 1905 he served continuously as a judge of the Superior Court. On
1 January, 1905, having been elected to that office at the preceding general election, he began his service as an Associate Justice of the Supreme Court. This service continued for two terms, and ended in 1920, at the expiration of his second term. He did not seek nomination or election for another term. Being then in his seventieth year, he retired from active and continuous work in his profession or otherwise. In 1921 he qualified as a Special or Emergency Judge of the Superior Court, in accordance with the provisions of chapter 125, Public Laws 1921, and thereafter, from time to time, he presided at terms of the Superior Court in various counties of the State, under assignments by the Governor. The last term to which he was assigned, and at which he presided, was the November Term, 1925, of the Superior Court of Beaufort, his native county. During all these years he resided at and made his home in the town of Washington.
An estimate of Judge Brown as a man and as a citizen, and an appreciation of his services to the State, both as a judge of the Superior Court for fifteen years, and as an Associate Justice of the Supreme Court for sixteen years, may be found in the address delivered by the Hon. Robert W. Winston, upon the presentation of his portrait to this Court on 12 April, 1927. See 193 N.C. 859. This portrait was presented to the Court by Mrs. Brown. It hangs in its appropriate place upon the walls of the Chamber in which this Court now sits. In the words of the Chief Justice, in his remarks accepting this portrait, Judge Brown has "left for our keeping a record of high service to his State, and a heritage of great worth to his fellowmen."
At his death Judge Brown left surviving, as his widow, Mrs. Laura E. Brown, to whom he was married at Washington, N.C. on 17 December, 1874. They lived together in the intimate relationship of husband and wife for more than fifty years. She is the propounder of the paper-writing offered for probate as his last will and testament, which is dated 5 January, 1926. No children were born of their marriage. His heirs at law are his two surviving sisters, and his nephews and nieces, the children of his two deceased sisters. He was the only brother of these sisters. These heirs at law are the caveators in this proceeding.
The issue which is determinative of this proceeding was submitted to and answered by a jury of Beaufort County, upon evidence consisting chiefly of testimony of relatives and friends, who had known Judge Brown for many years, both while he was strong and vigorous and after sickness and the infirmities of age had rendered him weak and feeble. There was sharp conflict in the opinions testified to by the witnesses at the trial as to the fact involved in the issue, to wit: Judge Brown's mental capacity on 5 January, 1926. Many were of the
opinion that Judge Brown was not of sound mind and memory on said date; many were of opinion to the contrary. The credibility and probative force of all the evidence, including the conflicting opinions of the witnesses as to his mental capacity on 5 January, 1926, were matters essentially for the jury. By their verdict, they have found that the paper-writing, dated 5 January, 1926, propounded for probate, is not the last will and testament of George H. Brown. From the judgment upon the verdict the propounder has appealed to this Court, assigning as errors of the law in the trial of the issue (1) the admission of testimony as evidence over her objection; (2) the instructions of the court to the jury, to which she duly excepted; (3) the rulings of the court as to the conduct of the trial to which she excepted; and (4) the refusal of her motion that the verdict be set aside and a new trial ordered. These assignments of error are duly presented to this Court by propounder's appeal from the judgment. The jurisdiction of this court conferred by section 8 of Article IV of the Constitution of North Carolina is confined to a consideration of assignments of error in matters of law and legal inference in order that it may be determined whether or not they shall be sustained. In re Will of Creecy, 190 N.C. 301.
The evidence tends to show the formal execution of the paper-writing dated 5 January, 1926, by Judge Brown, as his last will and testament. The paper-writing is in form sufficient to constitute a will, bequeathing and devising all his property, real and personal, to his wife, Mrs. Laura E. Brown, "to be hers absolutely in fee simple, including my residence and law office on Market Street, in Washington, North Carolina." Mrs. Brown is appointed executrix to the will. She is the sole devisee and legatee, by the terms of the will, of all the estate of Judge Brown, both real and personal. No reference is made in this paper-writing to his sisters, or to his nephews or nieces.
The uncontradicted testimony of witnesses tends to show that all the requirements of the statute, C. S., 4131, with respect to the execution of said paper-writing, both as a holograph and as an attested will, were complied with. Three witnesses whose credibility or competency is not questioned, testified that the paper-writing and every part thereof is in the handwriting of Judge Brown, whose name is subscribed thereto; there was evidence that the paper-writing was found, after the death of Judge Brown, among his valuable papers and effects in his safety-deposit box in the vault of the Bank of Washington, where it was deposited by Judge Brown on 5 January, 1926. There was evidence also that said paper-writing was written by Judge Brown in his lifetime, and signed by him, and that same was subscribed by two witnesses in his presence, and at his request, no one of whom is interested in the devise or bequest of any property by the said paper-writing.
The court charged the jury that the evidence, if believed by them, established the formal execution of the paper-writing by Judge Brown, as his last will and testament, and that said paper-writing, if so executed by him, is his valid will, unless they should find from the evidence, the burden being on the caveators in that respect, that at the time of its execution Judge Brown did not have the mental capacity which the law requires for the execution of a will. There was no contention, and no evidence tending to show that the execution of the paper-writing as a will, was procured by undue influence. The sole contention of the caveators, with respect to the validity of the paper-writing as a will, is that Judge Brown, at the time of its execution by him, on 5 January, 1926, and continuously thereafter until his death on 16 March, 1926, did not have the capacity to make and execute a will, for that he was not of sound mind and disposing memory at and during said time.
In support of their contention, caveators offered evidence tending to show that prior to 1919, when he was serving his second term as a Associate Justice of the Supreme Court, Judge Brown was strong and vigorous, in body and in mind; that in the spring of 1919 Judge Brown became ill, and that in consequence of such illness he spend some time as a patient in hospitals and sanatoriums; that during this illness he was greatly depressed in spirit and suffered from extreme melancholia, often expressing fear that he would find himself entirely without means for the support of himself and wife, and that he would become a pauper; that he was greatly concerned about his health, frequently expressing apprehension that he would not be able to return to his work on the Supreme Court, with the result that he would be deprived of his salary as an Associate Justice, making it difficult for him to live; that during this illness his mind was unsound and his memory bad. There is evidence that at this time Judge Brown was possessed of a large estate, yielding an income greatly in excess of his salary.
The evidence further tends to show that Judge Brown recovered from this illness, both physically and mentally, and returned to his work on the Supreme Court; he resumed this work and continued to perform his duties as an Associate Justice until his retirement at the end of his second term in 1920. After his retirement from the Supreme Court Judge Brown spent the larger part of his time at his home in Washington in daily association with his wife, his relatives and friends. His physical health was good, and there is no evidence that he was at any time during these years depressed in spirit or in mind.
There is no evidence tending to show that Judge Brown suffered any further illness until the spring of 1925. He presided as Special or Emergency Judge at the March Term, 1925, of the Superior Court of Henderson County, which was a two-weeks term. He became sick
during the second week of the term and adjourned court on Wednesday. There was evidence that as a result of this sickness his mind became confused; he was unable to remember persons with whom he had had close associations, both official and social, during the court. Witnesses who saw him during this term of court testified that in their opinion he did not, after he became sick, have mental capacity sufficient to enable him to know what property he had, who his relatives were or what claims they had upon him by reason of their relationship to him. A witness who had known Judge Brown for many years at Washington, and who was then living in Hendersonville, testified that Judge Brown was not himself at all while he was in Hendersonville.
After Judge Brown's return from Hendersonville to Washington he was quite sick for some time. During the early summer of 1925 he went with Mrs. Brown to Beaufort, N.C. to recuperate from this illness. He and Mrs. Brown remained at Beaufort for several weeks. He was much improved upon his return to Washington during the latter days of June. In August, 1925, he went to Asheville, N.C. as had been his custom for many years. He was accompanied by Mrs. Brown, who remained with him until early in October, when they returned to their home in Washington. While in Asheville Judge Brown had trouble with his eyes and consulted an oculist. This trouble impaired his sight and he was much depressed by his inability to read as he had been accustomed to do. Mrs. Brown testified that his inability to read was a great deprivation to him. From his return to Washington about October, 1925, to his death in March, 1926, Judge Brown remained at his home. There is no evidence that he undertook any work thereafter except during the November Term of the Superior Court of Beaufort County.
There was evidence tending to show that after his return to Washington there was a marked change in Judge Brown's physical appearance. He became weak and feeble, so much so that when he went out on the streets of Washington, either for social or business purposes, he was usually accompanied by Mrs. Brown. His condition, both physical and mental, during the fall of 1925, was the subject of much sympathetic comment by relatives and friends, who had known him for many years. The contrast in both respects in his condition at this time and his condition in former years was marked. Apprehension was felt and expressed by Mrs. Brown and others that he would not be able to preside at the November Term, 1925, of the Superior Court of Beaufort County, in accordance with the assignment of the Governor. Many witnesses at the trial who saw him while presiding at this time, testified that in their opinion Judge Brown was not only sick in body, at that time, but also of unsound mind and memory. These opinions were
formed from personal observation and contrasts made by the witnesses in his appearance and conduct at this time and at former times, when he was both strong in body and vigorous in mind. There were many other witnesses offered by the propounder who testified that while Judge Brown was at the time weak and feeble, his mental faculties had not become impaired. The facts which formed the basis of these conflicting opinions are not in serious controversy; the witnesses differed only in their inferences and conclusions as to Judge Brown's mental condition, and in some instances as to the cause of unusual conduct which they observed.
There was evidence tending to show that Judge Brown was sick during the early days of January, 1926. At this time, on several occasions, Judge Brown expressed apprehension that the General Assembly, which he insisted was then in session, although in fact the General Assembly did not meet during 1926, might repeal the statute under which he was receiving his salary as Special or Emergency Judge; he stated to relatives and friends, repeatedly, that if this was done, he would have no income, as he was dependent upon his salary for his support. The evidence shows that at this time the income from investments made and owned by Judge Brown exceeded $20,000 per annum, and that he was in daily correspondence with banks in which his securities were deposited for safe-keeping. This correspondence shows that Judge Brown was fully advised from time to time as to the total value of his securities, and as to the income from the same.
A few weeks after the execution of the paper-writing by him, Judge Brown became so ill that he was taken to a hospital in Washington. He remained there for several days and was then taken to his home where he remained to the date of his death. His mental condition during this sickness was bad. He was sick continuously until his death, and frequently expressed fear that he would die a pauper. This fear made him very unhappy. The assurances of his relatives and friends that his fear was groundless gave him no relief.
Judge Brown was the only son of his parents, both of whom died when he was a young man. He had four sisters, two of whom are dead. Both left children, who survived Judge Brown. A son of one of the deceased sisters, a nephew of Judge Brown, lives in Washington. He went there from his home elsewhere in the State soon after receiving his license to practice law, at the suggestion and upon the advice of Judge Brown, who had observed with pride and satisfaction his successful career at Washington in his profession. This nephew is married and has several daughters. All the evidence is to the effect that the relations between Judge Brown and this nephew, his wife and daughters, especially after his retirement from office as an Associate
Justice of the Supreme Court in 1920, had been close and affectionate. There was no evidence of any change in their relations at any time prior to 5 January, 1926, or thereafter. There is evidence that on this day, when the paper-writing was executed by Judge Brown, he sent for and consulted this nephew, at his home, about a matter in which he was greatly interested, to wit, the repeal by the General Assembly of the statute under which he was receiving his salary as a Special or Emergency Judge. After Judge Brown's death Mrs. Brown sought the aid and advice of this nephew. None of Judge Brown's other relatives, who are now his heirs at law, lived in Washington. There is evidence, however, tending to show that prior to 5 January, 1926, his relations with them were pleasant and normal. There is no evidence of any change in these relations at any time prior to his death. He had on many occasions manifested for them strong affection, and recognized their claims upon him by reason of their relationship. As late as about 1 October, 1925, in a conversation with Governor McLean, in Raleigh, while on his return trip from Asheville to Washington, Judge Brown said: "I am getting old; my health is bad; I cannot expect to live much longer. I have no children of my own. In recent years, particularly since I have returned to Washington to live, I have become very much attached to Angus' wife and daughters. They have been very kind to me, and while I feel an interest in all my nephews and nieces and their families, I feel a peculiar interest in them. I have made my will, and in my will I have provided especially for Angus' wife and children. I will leave a very nice estate, and with what I have arranged to give them, Angus' daughters will be taken care of handsomely." In this conversation Judge Brown expressed his affection for another nephew and his wife, Mr. and Mrs. Brown Shepherd, saying that although they were well fixed financially, he had provided for them also. This conversation occurred during an interview between Judge Brown and Governor McLean, relative to a matter of great importance to Mr. Angus D. McLean, Judge Brown's nephew, and Governor McLean's cousin. The statements by Judge Brown in reference to his will, and to his nephew's interest in the disposition of his estate, were made in support of his insistent advice upon this matter.
There was evidence tending to show that as long before his death as February, 1924, when he was in his seventy-fifth year, and after he had retired from active professional and business life, Judge Brown was giving careful consideration to the making of his will. This is shown by his correspondence with Mr. Joseph G. Brown and Mr. Reid Martin, bankers, residing at Raleigh, N.C. Mr. Brown was president of the Citizens National Bank and of the Raleigh Savings Bank and Trust
Company. Mr. Martin was cashier of the latter. Judge Brown had accounts with both banks and had securities deposited with each for safe-keeping.
In a letter dated at Washington, N.C. on 26 April, 1924, addressed to Mr. Martin, Judge Brown wrote as follows: "You are a friend indeed, and I am very grateful to you for your many kindnesses to me. I sincerely hope you and J. G. B. will outlive my wife and myself. I hope you will bear in mind, in case anything happens to me, that I have made a new will this week, and it is in Box 40, Bank of Washington. I have one key, and my old clerk here, Arthur Mayo, has the other key. I have devised all my personal estate to Raleigh Savings Bank and Trust Company in trust and appointed that company the sole executor. If you ever hear of my death, you can come down and get the will and probate it here, and qualify as executor for the company. In the will is a little memento of my personal regard for you and J. G. Brown."
In a letter dated at Washington, N.C. on 27 April, 1924, addressed to Mr. Jos. G. Brown, Judge Brown wrote as follows: "I have written my will and filed it in Lock Box 40, Bank of Washington. My entire personal estate is devised to Raleigh Savings Bank and Trust Company in trust to pay entire net income to my wife during her life, except a small annuity to a faithful old servant. After my wife's death, it is to be divided equally between my nephews and nieces; so you see there will not be much trouble in administration. There is a little memento of my personal regard for you and also for Reid Martin. The one P. C. is likely to pan out more than the suggested $3,000, and the three P. C. on annual income of the estate is likely to pay the trustee very well for the trouble of collecting it. In case you hear of my death you will send down and get the will and probate it here. There are a lot of securities in that box and also with W.H. Goadby Co., New York. I hope you will survive both Mrs. Brown and myself. I am very grateful to you for your great kindness."
In a letter dated at Asheville, N.C. on 5 August, 1924, addressed to Angus D. McLean, Judge Brown wrote as follows: "I intended to talk to you about the subject I am writing about before I left home. . . . It is about my will. I am writing as you and your wife and daughters are largely interested in its present provisions. . . . My will is a holograph, in my deposit box in the Bank of Washington. My handwriting can be easily proven. I give my wife our home place and contents in fee. After an annuity to Pauline, I bequeath my entire personal estate to the Raleigh Savings Bank and Trust Company as trustee to handle same, and pay entire income to my wife during her life. I also give her the power to make a will and dispose of as much as fifty thousand
of my estate in any way she may wish. After her death I bequeath a substantial legacy to said trustee for each of your daughters to be kept at compound interest and paid over as each daughter arrives at 21 years of age. If any die before then, her legacy to be divided among the surviving sisters. I also give your wife a nice legacy in token of my sincere love for her. The residuum of my estate is to be divided per capita among my nephews and nieces. The share going to Brown Shepherd and Eleanor C. Whitney to be retained until death of their respective mothers, and income paid to the mothers during their lives. I have tried to be fair to all my relatives, but as your lovely girls, whom I dearly love, are not my nieces, but my great nieces, I have given them specific legacies. My wife has been dealt with so liberally that I am sure she will not dissent, but if she does, your girls and Nettie will get their legacies anyway."
In a letter written at Washington, N.C. dated 24 March, 1925, addressed to Joseph G. Brown at Raleigh, N.C. Judge Brown made this reference to his will: "As you know, I have left my somewhat large estate to the Raleigh Savings Bank and Trust Company because of my profound confidence in you particularly, and I will also say, because of my confidence in Martin."
There are references to this will in letters written by Judge Brown, subsequently, to Mr. Martin dated 25 April, 1925, and to Mr. Brown, dated 3 July, 1925; also in letter written at Asheville, dated 3 September, 1925, addressed to Angus D. McLean, at Washington, N.C. In this last letter Judge Brown advises strongly that Mr. McLean do not consider a suggestion as to a change of residence, and as one reason for his advice says: "Besides as you know, my will devises a very substantial part of my estate to your wife and daughters. I can hardly endure the thought of all of you leaving Washington."
The evidence shows that as late as 1 October, 1925, Judge Brown in his interview with Governor McLean referred to his will, previously executed by him, in which he had bequeathed and devised his estate, after the death of Mrs. Brown, to his nephews and nieces, with provisions for his surviving sisters. There is no evidence showing or tending to show any change thereafter in his relations to his nephews and nieces, or to his sisters, or any change in the condition or value of his estate. There is evidence of a marked decline in Judge Brown's physical condition, after his return to Washington, and during the fall and winter of 1925. Rev. S. A. Cotton, presiding elder of the Weldon District of the North Carolina Conference of the Methodist Church, who had known Judge Brown for many years, testified as follows: "I had known Judge Brown prior to the fall of 1925. I had been impressed with his mental and physical stamina; he was a strong man,
mentally. In the fall of 1925 — during October and November — I noticed a difference in Judge Brown. I was impressed with a marked change in his mental condition; the change was for the worse. I was impressed that Judge Brown was losing his grip, mentally, to put it that way. I got that impression from observation and from conversations with him."
There is evidence that the marked decline in physical strength and mental vigor was accompanied by great mental depression, manifesting itself chiefly in loss of memory and inability to realize at times that he was possessed of an estate, of large value, yielding an annual income exceeding $20,000. In a postscript to a letter, dated 25 December, 1925, addressed to Mr. J. G. Brown, Judge Brown says: "As I seem to be at present physically and mentally incapable of properly managing my business affairs, I wish to say that I would regard it as a great favor if I could induce you to take charge of them for me, as I have the utmost confidence in your absolute integrity and business ability." On 2 January, 1926, in a letter to his nephew, Mr. Brown Shepherd, at Raleigh, speaking of his great need of money, he says: "I am not drawing any salary." At this time he was receiving monthly his salary as a Special or Emergency Judge.
On or shortly before 5 January, 1926, Judge Brown, with his own hand, wrote the paper-writing now offered for probate as his last will and testament. He therein gives, bequeaths and devises to his wife all his estate, making no reference therein to his nephews or nieces, or to his sisters. The only property specifically referred to in this paper-writing is his residence and law office, shown by the evidence to be worth about $15,000 and $5,000, respectively. No reference is made therein to the stocks, bonds and securities which he then owned, and which exceeded in value $500,000. These stocks, bonds and securities were then on deposit for safe-keeping with the Citizens National Bank of Raleigh, the Raleigh Savings Bank and Trust Company, the Bank of Washington and W.H. Goadby
Co., bankers, New York City. Judge Brown's correspondence shows that he was informed as to these stocks, bonds and securities, and that his repeated requests for itemized statements from each of the depositaries had been promptly complied with.
Mr. A. D. McLean, nephew of Judge Brown, and one of the caveators, testified that he saw Judge Brown at his home, on the morning of 5 January, 1926. At that time Judge Brown knew him and knew Mrs. Brown; he knew he had a house and lot, and an office in Washington; in the opinion of the witness, this is all that he knew about his property. He further testified that in his opinion Judge Brown on this day did not know what property he owned; that he did not have sufficient
capacity, if he remembered his relatives, to recall his feelings toward them, or to recall the fact of his relation to them; he did not then have sufficient capacity to understand the scope and effect of a will.
The witness further testified that he had formed this opinion by contrasting Judge Brown's condition, physical and mental, on that day, with his condition in former years, when he regarded Judge Brown as one of the ablest lawyers and business men that he had known. The witness gave in detail the results of his observation of Judge Brown from 1919, when he first became ill, to his last illness, immediately preceding his death. He testified that in August, 1924, he received through the mail, at Washington, a letter dated at Asheville, N.C. on 5 August, 1924. The letter is in Judge Brown's handwriting, and is addressed to the witness. In the opinion of the witness, Judge Brown was at that time of sound mind and memory. The witness' opinion that Judge Brown was of unsound mind on 5 January, 1926, was based, in part, by contrasting his purposes and intentions with respect to the disposition of his property at his death, as expressed in this letter, written when Judge Brown was sound in mind, with the disposition made in the paper-writing dated 5 January, 1926, when it is contended he was of unsound mind.
To the introduction of this letter in evidence by the caveators, the propounder objected. The objection was overruled, and the jury was instructed by the court that the letter was admitted in evidence, to be considered by them in connection with other testimony of Mr. McLean, as showing the basis of his opinion with respect to Judge Brown's mental condition on 5 January, 1926. Propounder excepted to the admission of this letter and to the instruction of the court with respect to its consideration by the jury.
Mr. McLean further testified to a conversation with Judge Brown, in his office at Washington, in July, 1925, upon Judge Brown's return from Beaufort. Propounder's objection to this testimony was overruled; the jury was instructed that it was admitted for the same purpose and under the same limitation as the letter. The witness testified that his opinion as to Judge Brown's mental condition was formed in part by contrasting what Judge Brown then said to him relative to his intention with respect to his property, with the disposition made in the paper-writing propounded as his will.
In this State a proceeding for the probate of a paper-writing as a will is not regarded as an adversary suit inter partes, but as a proceeding inrem. Edwards v. White, 180 N.C. 55, citing and approving Powell v.Watkins, 172 N.C. 244. There are no parties to such a proceeding, certainly none who can withdraw or take a nonsuit, and thus put the matter where it was at the start. Collins v. Collins, 128 N.C. 98. When the probate of a paper-writing as a will is contested, it is the duty of the court to cause an issue of devisavit vel non to be submitted to a jury. Strictly speaking, there are no parties to such an issue; both propounders and caveators are equally actors, in obedience to the order of the court directing the submission of the issue. Enloe v.Sherrill, 28 N.C. 213. In the opinion of the Court, In re Bowling,150 N.C. 507, it is suggested that in view of the fact that there are no parties, in the usual sense of the term, the proceeding should be entitled, "In re the Will of ____________." This suggestion has been generally adopted, as in this proceeding.
It has been consistently held by this Court, however, that in a proceeding for the probate of a will, both propounders and caveators are parties within the meaning and spirit of C. S., 1795, which disqualifies a party or person interested in the event from testifying as a witness in his own behalf against the executor, administrator or survivor of a deceased person, concerning a personal transaction or communication between the witness and the deceased, except where the executor, administrator or survivor is examined in his own behalf, or where the testimony of the deceased person is given in evidence concerning the same transaction or communication. In re Mann, 192 N.C. 248; In re Chisman, 175 N.C. 420;In re Harrison, 183 N.C. 457; Pepper v. Broughton, 80 N.C. 251.
Notwithstanding this principle, Judge Brown's letters to Mr. A. D. McLean, one of the caveators who had testified that in his opinion Judge Brown was not of sound mind on 5 January, 1926, and the conversations between Mr. McLean and Judge Brown, as testified to by the former, were properly admitted in evidence upon the principle stated in McLeary v.Norment, 84 N.C. 237, and approved in many opinions subsequently delivered by this Court. In re Hinton, 180 N.C. 207; Bissett v. Bailey,176 N.C. 43; In re Chisman, 175 N.C. 420; Rakestraw v. Pratt, 160 N.C. 437. This is true with respect to the letters even if it be held that they are personal communications or transactions between Judge Brown and Mr. McLean. All these letters were admittedly in Judge Brown's handwriting or signed by him; they were all received by Mr. McLean through the mail. It might well be held that the testimony of Mr. McLean with respect to the receipt by him of the letters, through the mail was not as to personal transactions with Judge Brown. McEwan v. Brown, 176 N.C. 249, and cases there cited.
It has been generally held that declarations, oral or written, by the deceased may be shown in evidence upon the trial of an issue involving his mental capacity, whether such declarations were made before, at or after the date on which it is contended that the deceased was of unsound mind. Inre Burns' Will, 121 N.C. 337. It has also been held that a
witness who has had opportunity to observe the deceased, may give in evidence his opinion as to his mental capacity. Clary v. Clary, 24 N.C. 78. Either a propounder or a caveator may testify as to his opinion upon this question. It was held in McLeary v. Norment, supra, that where a witness had testified to a want of mental capacity in the grantor to make a deed, and that his opinion was formed from conversations and communications between the witness and the deceased, it is competent to prove the facts upon which the opinion was formed. Hence, the witness may testify to his conversations and communications with the deceased, when such conversations and communications are in part the basis of his opinion, in order that the jury may determine what weight his opinion, based on these conversations and communications, is entitled to in their consideration of the opinion as evidence. A caveator, although a party to the proceeding, and interested in its event, may give in evidence his opinion as to the mental capacity of the deceased, based upon conversations or communications with him. Having done so, it is competent for him to testify as to the conversations and communications. The learned trial judge was careful to observe this principle and to instruct the jury accordingly. Assignments of error based upon exceptions to the admission of evidence, and to the instructions of the court, with respect to the consideration of certain evidence admitted cannot be sustained. It must be assumed that the jury, in considering Mr. McLean's testimony with respect to his personal transactions and communications with Judge Brown, were mindful of the court's instructions. There was other evidence, unobjected to, tending to show Judge Brown's intentions with respect to the disposition of his property, when he was admittedly of sound mind and disposing memory.
We have read the entire charge of the learned judge who presided at the trial of the issue submitted to the jury in this proceeding. It is set out in full in the statement of the case on appeal. The contentions of both propounder and caveators as to the facts which each contends the jury should have found from the evidence, and as to the law applicable to these facts, are stated therein, fully and fairly. With respect to the principles of law involved in the issue, the instructions given to the jury are in many instances in the identical language used by this Court in opinions in which these principles are stated and discussed. All the instructions are in full accord with well-settled principles, and are fully supported by authoritative decisions of this Court. We find no confusion or inconsistency in the statements of the law or in the instructions with respect thereto, as contended in the brief filed in this Court in behalf of the propounder. Assignments of error based upon exceptions to instructions to the jury, or upon exceptions to the failure
to give instructions requested by propounder, are not sustained. There is no error in either respect.
There is no error in the instruction to the jury to the effect that in considering the question of testamentary capacity involved in the issue, the jury should consider the evidence tending to show that when Judge Brown was admittedly of sound mind and disposing memory, he had expressed intentions with respect to the disposition of his property and estate by will, which he then stated he had theretofore executed, utterly at variance with the disposition made in the paper-writing offered for probate, dated 5 January, 1926, when, it is contended, he was not of sound mind and disposing memory, and that if they should so find the facts to be, such variance, although not alone sufficient to prove incapacity to make a will, was a fact or circumstance to be considered by the jury in determining whether or not Judge Brown had mental capacity to dispose of his property and estate on 5 January, 1926. Declarations of a deceased person, made when he was of sound mind and disposing memory, showing a long-cherished, settled and unvarying purpose with respect to the disposition of his property by will, are competent as evidence upon the trial of an issue involving his mental capacity at a subsequent date, not too remote from the time of the declarations, on which he executed a will, in utter variance with such purpose, which is contested upon the ground that there was a want of testamentary capacity.
The record in this case, viewed in its entirety, does not present the bare question whether the contrast between two natural and reasonable acts or expressions, constitute evidence of insanity or of lack of testamentary capacity, simply because they are different in effect and are separated in point of time. That there is such a difference is merely a circumstance, which with other facts and circumstances appearing from all the evidence, may be considered by the jury in determining the question involved in the issue. In the absence of such other facts and circumstances, such difference alone would not be sufficient as evidence of insanity or lack of testamentary capacity at the date of the last act or expression.
There is no error in the instruction to the jury to the effect that in considering the question of testamentary capacity involved in the issue, the jury should consider the evidence tending to show that Judge Brown's estate, on 5 January, 1926, consisted of his residence, and his office, worth about $15,000 and $5,000, respectively, and of stocks, bonds and securities, exceeding in value $500,000, yielding a net income of more than $20,000 per annum, and that while the extent, character and value of his property is not alone determinative of the question of testamentary capacity, such extent, character and value may properly be
considered in determining whether or not Judge Brown was of sound mind and disposing memory when he wrote and signed the paper-writing dated 5 January, 1926. In re Staub's Will, 172 N.C. 138, this Court approved the following definition of testamentary capacity: "A person has testamentary capacity within the meaning of the law, if he has a clear understanding of the nature and extent of his act, of the kind and value of the property devised, of the persons who are the natural objects of his bounty, and of the manner in which he desires to dispose of the property to be distributed." See In re Will of Creecy, 190 N.C. 301, and cases therein cited. The converse of this statement must necessarily be the law.
Nor is there error in the instruction to the jury to the effect that in considering the question of testamentary capacity involved in the issue, the jury should consider the fact that by the paper-writing offered for probate, dated 5 January, 1926, Judge Brown bequeathed and devised all of his property, real and personal, to his wife, absolutely and in fee simple, and that his sisters, and nephews and nieces, who are his heirs at law, and the natural objects of his bounty, by reason of ties of blood and affection, take no part of said property or estate. There was no error in this instruction, especially in view of the evidence tending to show declarations of Judge Brown, made when he was admittedly of sound mind and disposing memory, that in recognition of his relations to his sisters, and nephews and nieces, he had provided by his will for them, out of his "somewhat large estate."
The question as to whether Judge Brown was sane or insane, on 5 January, 1926, when he executed the paper-writing propounded as his will, is not necessarily involved in or determinative of the issue submitted to the jury. The question is, whether or not he had testamentary capacity. It is not required that a caveator shall prove that the deceased was insane in order to establish a want of testamentary capacity. The trend of judicial opinion on this subject shows clearly that a distinction should be and is made between insanity and want of testamentary capacity. A man may be lacking in testamentary capacity, as defined by the law, and yet not insane, certainly within the ordinary meaning of that term. The law requires that he shall be sound in mind, and of disposing memory in order to have capacity to make a will disposing of his property, at his death, otherwise than as the law directs in case of his intestacy with respect to the disposition of his property.
Propounder's assignment of error based upon her exception to the sending by the court of a telegram to Judge Grady, requesting his attendance at the trial as a witness for caveators, manifestly cannot be sustained. The telegram was written and sent from the courtroom in the absence of the jury. Counsel for caveators had stated to the court
that they had learned since the trial began that Judge Grady was a material witness in their behalf. Judge Grady, who was then presiding in the Superior Court of Warren County, was not subject to subpoena as a witness. His deposition could not be taken during the trial, without the consent of propounder. This was refused. His Honor felt justified, in view of these facts, in requesting Judge Grady to leave his court and attend the trial in order that the jury might have his testimony upon the trial of the issue. Propounder has no just cause of complaint with respect to this matter.
The ruling of the court that the caveators should open and conclude the argument to the jury is not subject to exception. This was a matter to be determined by the court in the exercise of its discretion. It was so held in In re Peterson Will, 136 N.C. 13. The fact that there had been no probate of the will in common form cannot affect the discretion of the court with respect to this matter. The trial of the issue devisavit velnon, in a proceeding for probate in solemn form, is de novo.
The record upon this appeal contains 752 printed pages. There are 121 assignments of error, based upon exceptions duly noted. Full and exhaustive briefs have been filed in this Court by learned and diligent counsel. Each of the assignments of error has had our full and careful consideration. Manifestly, they cannot be set out and discussed in detail in this opinion.
We have found no error in the trial of the issue in matters of law or legal inference. As was said by Justice Clarkson, speaking for the Court Inre Will of Creecy, 190 N.C. 310, where there was an appeal by a propounder from a judgment on an adverse verdict: "The case was carefully tried in the court below, in accordance with the law. It is not our province to determine whether the verdict of the jury is just or unjust; that is a matter solely for the jury. Under our law, the jury are the triers of the facts and are presumed to be men of good moral character and of sufficient intelligence." There is no suggestion to the contrary in this record, with respect to the jurors, to whom the issue was submitted and by whom the verdict was rendered. The judgment is affirmed. There is
No error.