In Re Will of George v. Credle

97 S.E. 151, 176 N.C. 84, 1918 N.C. LEXIS 187

Opinion

BeowN, J.

The execution of the will being admitted, the court placed the burden of proof upon the second and third issues upon caveator, and charged the jury as recited. The only assignment of error is directed to the sufficiency of the evidence.

We agree.with the learned judge that the evidence of incapacity'is too indefinite and too lacking in directness to justify a verdict upon the second issue, and there is absolutely no evidence of undue influence.

The rule that when insanity is proved to have existed at any particular time, it is to be presumed to continue, applies only to cases of general or habitual insanity. Therefore, where a general mental derangement or lunacy is shown to have existed not very long prior to the execution of a will, tbe burden of proof as to the sanity of the testator is thrown upon the propounder to show that when the will was executed the testator was of sound mind. Hudson v. Hudson, 144 N. C., 449; Ballew v. Clark, 24 N. C., 23.

But no presumption of continued insanity arises from intermittent and occasional mental disturbance of a temporary character. S. v. Sewell, 48 N. C., 245. The evidence in this case discloses nothing more than an occasional mental disturbance. We think the caveator has failed to offer sufficient evidence to justify the jury in finding that when he executed the will, on 24 February, 1905, the testator was non compos mentis.

No error.