In Re Will of Yelverton

153 S.E. 319, 198 N.C. 746, 1930 N.C. LEXIS 469

• Court: Supreme Court of North Carolina
• Decided: May 28, 1930
• Status: Published

Opinion

Stacy, C. J.

It is the contention of the propounders that the declarations of Harrison Yelverton, son of the alleged testator and one of the caveators, and the conversations he had with Paul Yelverton, another son and- administrator c. t. a. of the deceased, relative to the mental condition of their father, were not against the interest of said caveator, but decidedly in his favor, and, for this reason, were incompetent and should have been excluded. McDonald v. McLendon, 173 N. C., 172, 91 S. E., 1017; In re Fowler, 156 N. C., 340, 72 S. E., 357; Linebarger v. Linebarger, 143 N. C., 229, 55 S. E., 709; Enloe v. Sherrill, 28 N. C., 212. They likewise contend, and for the same reason, that the testimony of Mrs. Turlington was incompetent and objections thereto should have been sustained.

In reply, the caveators say that, conceding the incompetency of this evidence, when they offered to withdraw it at the close of the case, the propounders lost the exceptions which they had previously taken, or waived them, by objecting to having the evidence withdrawn or stricken out. Wilson v. Mfg. Co., 120 N. C., 94, 26 S. E., 629.

It is undoubtedly approved by our decisions that the trial court may correct a slip in the admission of isolated or single points of evidence by withdrawing such evidence at any time before verdict and instructing the jury not to consider it. Hyalt v. McCoy, 194 N. C., 760, 140 S. E., 807; S. v. Stewart, 189 N. C., 340, 127 S. E., 260; Cooper v. R. R., 163 N. C., 150, 79 S. E., 418; Parrott v. R. R., 140 N. C., 546, 53 S. E., 432. But this may not be done, without ordering a mistrial, where the inadvertence is protracted and injury would result to the appellant by such action. Gattis v. Kilgo, 131 N. C., 199, 42 S. E., 584. “When we can see that the appellant has been really injured by such action, we will always order a new trial” —Brown, J., in Parrott v. R. R., supra. Compare, also, S. v. Bryant, 189 N. C., 112, 126 S. E., 107; Stamper v. Commonwealth, 188 Ky., 538; S. v. Hopkins, 50 Vt., 316; People v. Sweeny, 304 Ill., 502; S. v. Marvin, 197 Iowa, 443.

On this phase of the case, therefore, the principal question presented resolves itself into an interpretation of the record. The evidence was admittedly incompetent; objection was duly made at the time of its admission; caveators offered to withdraw it at the close of the case, but propounders objected on the ground that it' had been before the jury for two days or for a considerable length of time, necessarily leaving a hurtful impression, and that to strike it out then would deprive them of their exceptions already taken, while the caveators, for all practical purposes, would still have the benefit of such evidence. Shelton v. R. R., 193 N. C., 670, 139 S. E., 232. Under these circumstances, the court refused to strike out the evidence, and it was allowed to remain before the jury.

It may be said with assurance that the propounders did not intend to waive their original exceptions, for one of the reasons why they objected to having the evidence stricken out at the close of the case was to preserve the exceptions which they had theretofore taken. A waiver is a ■voluntary relinquishment of a known right and implies an election to forego some advantage which otherwise might be insisted upon. Mfg. Co. v. Building Co., 177 N. C., 103, 97 S. E., 718, 27 R. C. L., 904. It seems that the trial court took this view of the matter, as he allowed the original exceptions to remain in the record in settling the case on appeal, and it is not stated that the refusal to strike out the evidence was based on any supposed waiver, or withdrawal of the original objections. Hence, if we treat this evidence as having been admitted over objections, duly preserved, its incompetency is not seriously questioned.

But, without placing our decision on this ground alone, the overshadowing objection to the validity of the trial would seem to be that when the issue of undue influence was eliminated from the case, a mass of incompetent evidence was allowed to remain before the jury which necessarily affected the verdict on the issue of alleged mental incapacity. The mere fact that the alleged testator had expressed a desire, when admittedly sane, to leave no will, because he thought the law would settle his estate fairly, could hardly be considered, on the present record, as evidence of mental incapacity at a later date, when a paper-writing, purporting to be a will, was executed in due form as such. In re Will of Brown, 194 N. C., 583, 140 S. E., 192, at page 597. Nor would the ■controversy among the sons of the deceased, after their father’s death, as to how the estate should be administered and by whom, seem to have any bearing on the question of testamentary capacity. Yet all this evidence was before the jury, and presumably considered by it, on the issue of alleged mental incapacity.

The record contains another exception which was the subject of earnest debate before us. After considering the case over night, the jury, on the following morning, asked the court for further instructions on the question of testamentary capacity, which the court gave in the absence of counsel on both sides and in the absence of the court stenographer. The record is silent as to whether this occurred before or after the court had opened for the day’s session. For this reason, and because it is unnecessary presently to decide the question, we omit any definite ruling on the exception, but call attention to what is said on the subject in McIntosh’s North Carolina Practice and Procedure at page 647.

For the error, as indicated, a new trial must be awarded; and it is so ordered.

New trial.