In Re Will of Casey

148 S.E. 437, 197 N.C. 347, 1929 N.C. LEXIS 233

• Court: Supreme Court of North Carolina
• Decided: June 12, 1929
• Status: Published

Opinion

Brogden, J.

Emma Connor, one of the caveators, and the only living-child of the testator, was asked the following questions:

1. “What property have you now?”

2. “Did you get anything by the last will and testament of John E. Casey .

3. “How did your father treat you with reference to his treatment of your other sister while you were young ?”

The witness answered the first question “None”; the second question “No”; and the third .question, “I never had any trouble with my father.”

All,of-these questions were objected to by the propounders and the answers of the witness were stricken out, and the caveators excepted and assigned the ruling of the court as error. These exceptions constitute exceptions 1, 2 and 3, and present three questions of law, to wit:

1. Is the financial condition of a child excluded from the will of the father competent upon the issue of mental capacity ?

The law answers this question in the affirmative. In re Staub’s Will, 172 N. C., 138, 90 S. E., 119; In re Hinton’s Will, 180 N. C., 206, 104 S. E., 341; In re Stephen’s Will, 189 N. C., 267, 126 S. E., 738.

Such evidence is also competent upon the issue of undue influence. In re Creecy, 190 N. C., 301, 129 S. E., 822.

2. Is the disinheritance of a child competent evidence upon the question of mental capacity?

The law answers this question in the affirmative. In re Hinton’s Will, 180 N. C., 206, 104 S. E., 341.

3. Is evidence of kindly and affectionate relationship between the testator and the members of his family competent upon the issue of mental capacity?

The law answers this question in the affirmative. Bost v. Bost, 87 N. C., 477; In re Burns’ Will, 121 N. C., 336, 28 S. E., 519.

Therefore the exclusion of testimony was error, and the caveators are entitled to a

New trial.