BeogkeN, J.
(1) What limitations are imposed by law upon the admissibility of the acts, conversation and general conduct of a testator or testatrix subsequent to the execution of a will in a caveat proceeding based upon mental incapacity at the time the will was executed?
(2) Was the cost properly taxed?
The ultimate quest of the trial was to discover the mental condition or testamentary capacity of the testatrix on 27 February, 1906. This idea was expressed
In re Ross,
182 N. C., 477, 109 S. E., 365, as follows: “The competency of testatrix to make the will in question is to be determined as of the date of its execution, or of its republication, as by a codicil, . . . and not when instructions for its preparation were
given. ... Of course, the conduct of testatrix at the time of this conference is competent and relevant, as bearing upon the question of her testamentary capacity; but, notwithstanding her mental condition at that time, this would not necessarily establish her competency to execute the will at the subsequent date.” The same thought was exemplified in
In re Smith's Will,
163 N. C., 464, 79 S. E., 977. In that ease a will was executed on 26 September, 1911. The caveators undertook to offer in evidence the record in a special proceeding entitled R. Smith, lunatic,” dated April, 1912. The trial judge excluded the evidence and in discussing the objection to such ruling, the Court said: “If the record had any relevancy to the issue, the date to which it related was too remote for any legal bearing upon the case. There must, of course, be some rational connection between the two and some reasonable proximity in point of time, so that the proof that is offered will have at least some tendency to establish the fact embodied in the issue. Such was not the case here. The record was made some time after the date of the will.”
The caveators offered in evidence the testimony of approximately sixteen witnesses, to wit, O. L. Taylor, Ben. W. Oates, A. W. Oates, C. E. "Weatherington, Dr. Paul Grumpier, Joe Creel, John R. Price, George W. Massey, S. G. Avant, Walter Kelly, Dave Raynor, Amy Jackson, Paul Armstrong, Arthur King, M. L. Hobbs, L. H. Ellis, and A. L. Sutton. These witnesses all testified that in their opinion the testatrix did not have testamentary capacity on 27 February, 1906. It appeared, however, that none of said witnesses knew the deceased in 1906. Two of the witnesses first became acquainted with her in 1908 or 1909, one in 1911, two in 1912 or 1913, some in 1914 and 1915, others in 1918, 1919, 1920, one in 1924, and two in 1926. Hence, the opinions of these witnesses were based upon acts and conduct of deceased after the execution of the will and ranging in time from two to twenty years. The decided weight of authority upon the subject is to the effect that the conversation, acts, conduct and general demeanor of a testator or testatrix previous to the execution of a will, at the time of the execution, and subsequent to the execution thereof are competent and relevant upon the issue of testamentary capacity. The common sense of mankind knows that material changes may occur in both body and mind within comparatively short periods of time. Hence the question occurs: When is such evidence to be deemed proximate and when remote? The answer given by textwriters and decided cases are as variable as the particular point of view or approach.
The rule of reason has been adopted as the law in this State. In the
Will of Stocks,
175 N. C., 224, 95 S. E., 360, the Court quoted with approval the utterance of the Minnesota Court, as follows: “Where the issue is the mental capacity of the testator at the time of making
the will, evidence o£ incapacity within a reasonable time before and after, is relevant and admissible.” Naturally, it will be inquired what is meant by reasonable time. No precise or mathematical definition can be fashioned. The term itself is ordinarily clearer than definitions. Usually definitions cloud rather than clarify.
The interpretation of the term must ultimately depend upon the variability of given facts and circumstances. In the
Smith case, supra,
it was intimated by the Court that a lunacy proceeding for the testator instituted approximately seven months after mating the will was too remote. In the case of
Mitchell v. Corpening,
124 N. C., 472, 32 S. E., 798, it was held that evidence of mental condition a “very few days” after the execution of the will was competent. Finally, in
Wood v. Sawyer,
61 N. C., 251, it was held that a paper written two years after the date of the will, setting forth the reasons for making it, was competent upon testamentary capacity. Likewise, in
Norwood v. Marrow,
20 N. C., 578, it was held that evidence of menta-l capacity the next day was competent on the question of capacity to make a deed. Upon the other hand, it has been held
In re Burns’ Will,
121 N. C., 336, 28 S. E., 519, that the declarations and conduct of a testator “are not received as a part of
res gestes,
but whether made long before or after making the will is immaterial as to their competency.” See Wigmore on Evidence, 2d ed., Yol. I, section 233,
et seq.
An examination of many authorities discloses that the rule of reason in such matters is the prevailing judicial thought. Certainly it is the latest utterance of this Court.
There is no evidence that the testatrix suffered with a disease tending to produce mental impairment and progressive in its nature. The opinions of the witnesses referred to were based upon disconnected and unrelated incidents. Courts and textwriters all agree that the opinions of nonexperts are competent to show testamentary capacity at a given time. However, such opinions must be fashioned out of some sort of acquaintance, observation or experience. The material out of which such opinions must be formed was pointed out in the case of
Will of Storks, supra.
The Court said: “These witnesses, ten in number, all testified that they knew the testator well; had conversations or business transactions with him, and from what they saw of him and their dealings with him, seeing him, hearing him talk, and association with him, in their opinion he had mental capacity to know what he was doing, what property he had and to whom he wished to give it.” Consequently, the final inquiry is whether association, acquaintance, transactions and conversations that took place between witnesses and the testatrix from two to twenty years after the execution of the will have any “rational connection” or “reasonable proximity in point of time” to the vital issue. At least, it can be
stated that no case in this State has been called to the attention of the Court in which disconnected incidents occurring more than two or three years after the execution of the will hare been approved in determining-mental capacity. Therefore, the Court is of the opinion that such evidence, whether offered by propounders or caveators, is incompetent. However, it is not to be assumed that the Court intends to prescribe a time limit. The best that appellate courts can do in dealing with the subtle processes of the mind is to interpret facts in such cases by the rule of reason and common sense.
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BeogkeN, J.
(1) What limitations are imposed by law upon the admissibility of the acts, conversation and general conduct of a testator or testatrix subsequent to the execution of a will in a caveat proceeding based upon mental incapacity at the time the will was executed?
(2) Was the cost properly taxed?
The ultimate quest of the trial was to discover the mental condition or testamentary capacity of the testatrix on 27 February, 1906. This idea was expressed
In re Ross,
182 N. C., 477, 109 S. E., 365, as follows: “The competency of testatrix to make the will in question is to be determined as of the date of its execution, or of its republication, as by a codicil, . . . and not when instructions for its preparation were
given. ... Of course, the conduct of testatrix at the time of this conference is competent and relevant, as bearing upon the question of her testamentary capacity; but, notwithstanding her mental condition at that time, this would not necessarily establish her competency to execute the will at the subsequent date.” The same thought was exemplified in
In re Smith's Will,
163 N. C., 464, 79 S. E., 977. In that ease a will was executed on 26 September, 1911. The caveators undertook to offer in evidence the record in a special proceeding entitled R. Smith, lunatic,” dated April, 1912. The trial judge excluded the evidence and in discussing the objection to such ruling, the Court said: “If the record had any relevancy to the issue, the date to which it related was too remote for any legal bearing upon the case. There must, of course, be some rational connection between the two and some reasonable proximity in point of time, so that the proof that is offered will have at least some tendency to establish the fact embodied in the issue. Such was not the case here. The record was made some time after the date of the will.”
The caveators offered in evidence the testimony of approximately sixteen witnesses, to wit, O. L. Taylor, Ben. W. Oates, A. W. Oates, C. E. "Weatherington, Dr. Paul Grumpier, Joe Creel, John R. Price, George W. Massey, S. G. Avant, Walter Kelly, Dave Raynor, Amy Jackson, Paul Armstrong, Arthur King, M. L. Hobbs, L. H. Ellis, and A. L. Sutton. These witnesses all testified that in their opinion the testatrix did not have testamentary capacity on 27 February, 1906. It appeared, however, that none of said witnesses knew the deceased in 1906. Two of the witnesses first became acquainted with her in 1908 or 1909, one in 1911, two in 1912 or 1913, some in 1914 and 1915, others in 1918, 1919, 1920, one in 1924, and two in 1926. Hence, the opinions of these witnesses were based upon acts and conduct of deceased after the execution of the will and ranging in time from two to twenty years. The decided weight of authority upon the subject is to the effect that the conversation, acts, conduct and general demeanor of a testator or testatrix previous to the execution of a will, at the time of the execution, and subsequent to the execution thereof are competent and relevant upon the issue of testamentary capacity. The common sense of mankind knows that material changes may occur in both body and mind within comparatively short periods of time. Hence the question occurs: When is such evidence to be deemed proximate and when remote? The answer given by textwriters and decided cases are as variable as the particular point of view or approach.
The rule of reason has been adopted as the law in this State. In the
Will of Stocks,
175 N. C., 224, 95 S. E., 360, the Court quoted with approval the utterance of the Minnesota Court, as follows: “Where the issue is the mental capacity of the testator at the time of making
the will, evidence o£ incapacity within a reasonable time before and after, is relevant and admissible.” Naturally, it will be inquired what is meant by reasonable time. No precise or mathematical definition can be fashioned. The term itself is ordinarily clearer than definitions. Usually definitions cloud rather than clarify.
The interpretation of the term must ultimately depend upon the variability of given facts and circumstances. In the
Smith case, supra,
it was intimated by the Court that a lunacy proceeding for the testator instituted approximately seven months after mating the will was too remote. In the case of
Mitchell v. Corpening,
124 N. C., 472, 32 S. E., 798, it was held that evidence of mental condition a “very few days” after the execution of the will was competent. Finally, in
Wood v. Sawyer,
61 N. C., 251, it was held that a paper written two years after the date of the will, setting forth the reasons for making it, was competent upon testamentary capacity. Likewise, in
Norwood v. Marrow,
20 N. C., 578, it was held that evidence of menta-l capacity the next day was competent on the question of capacity to make a deed. Upon the other hand, it has been held
In re Burns’ Will,
121 N. C., 336, 28 S. E., 519, that the declarations and conduct of a testator “are not received as a part of
res gestes,
but whether made long before or after making the will is immaterial as to their competency.” See Wigmore on Evidence, 2d ed., Yol. I, section 233,
et seq.
An examination of many authorities discloses that the rule of reason in such matters is the prevailing judicial thought. Certainly it is the latest utterance of this Court.
There is no evidence that the testatrix suffered with a disease tending to produce mental impairment and progressive in its nature. The opinions of the witnesses referred to were based upon disconnected and unrelated incidents. Courts and textwriters all agree that the opinions of nonexperts are competent to show testamentary capacity at a given time. However, such opinions must be fashioned out of some sort of acquaintance, observation or experience. The material out of which such opinions must be formed was pointed out in the case of
Will of Storks, supra.
The Court said: “These witnesses, ten in number, all testified that they knew the testator well; had conversations or business transactions with him, and from what they saw of him and their dealings with him, seeing him, hearing him talk, and association with him, in their opinion he had mental capacity to know what he was doing, what property he had and to whom he wished to give it.” Consequently, the final inquiry is whether association, acquaintance, transactions and conversations that took place between witnesses and the testatrix from two to twenty years after the execution of the will have any “rational connection” or “reasonable proximity in point of time” to the vital issue. At least, it can be
stated that no case in this State has been called to the attention of the Court in which disconnected incidents occurring more than two or three years after the execution of the will hare been approved in determining-mental capacity. Therefore, the Court is of the opinion that such evidence, whether offered by propounders or caveators, is incompetent. However, it is not to be assumed that the Court intends to prescribe a time limit. The best that appellate courts can do in dealing with the subtle processes of the mind is to interpret facts in such cases by the rule of reason and common sense.
Caveators offered a witness named George W. Massey, who testified he saw testatrix one time in 1925, and had an opportunity to talk with her. The following question was propounded: “From your observation and conversation with Miss Sudie Hargrove, did you form an opinion satisfactory to yourself, as to whether or not Miss Sudie Hargrove at the time in 1925 when you observed her had sufficient mental capacity to know and understand the nature and extent of her property, to know who were the natural objects of her bounty, and to realize the full force and effect of the disposition of her property by will?” The propounder objected and excepted. The witness answered: “I don’t think she was.” Testamentary capacity in the year 1925, or nineteen years after the will was executed, was not the point, and the question should have been excluded. The caveators offered a witness named Sam H. Hobbs, who testified that he had known testatrix forty years. On cross-examination he was asked the following question: “When she was writing her will, don’t you think she knew she was going to make a will?” The witness answered: “I think she thought she was making a will, but didn’t know the purport of it. To my mind, there had been undue influence on her to the extent that she didn’t know what she was doing.” The propounder moved to strike out the answer. Motion was denied and propounder excepted. The caveat did not allege undue influence as a basis for invalidating the will, and obviously the answer was in nowise responsive to the question and should have been excluded.
The Court is of the opinion that the questions of estoppel by deed debated in the briefs have no bearing upon the essential and determinative issue.
There was competent evidence of mental incapacity to be submitted to the jury, but as we interpret the record, the errors specified warrant a new trial of this cause. Undoubtedly, it is the policy of the law to bring an end to litigation as speedily as exact justice to all parties may permit. Notwithstanding, it is also the policy of the law to guarantee to each and every party a trial in reasonable accord with the principles which the experience and enlightened judgment of mankind have found necessary in the due administration of justice.
The second question relates to the taxing of cost against the trustees and other propounders. The caveators assert that 0. S., 1244, governs the ruling and the propounders assert that C. S., 1254, is determinative. Apparently 1244, subsection 2, has been interpreted to mean that the court has the power to tax the cost against the estate, although the will may be upheld. See
Mayo v. Jones,
78 N. C., 406;
In re Winston's Account,
172 N. C., 270, 90 S. E., 201. However, this question becomes immaterial as a new trial must be awarded.
New trial.