In the Matter of the WILL of Briscoe TAYLOR, Deceased.
No. 101.Supreme Court of North Carolina.
September 25, 1963.*489 Don C. Young, Asheville, for caveator, appellants.
Lee, Lee & Cogburn, Asheville, for propounder, appellee.
DENNY, Chief Justice.
Mrs. Florence Smith, a sister of Briscoe Taylor, testified that for three weeks before her brother entered the Veterans' Hospital she cared for him at his home from early morning until about 6:00 or 7:00 in the evening, then her niece, Mae Erwin, took over.
This witness further testified: "Based upon my conversations and my observations, I have an opinion satisfactory to myself as to whether Briscoe Taylor on October 19th to October 26th, 1961, possessed sufficient mental capacity to know what property he had, who his relatives were, what claims they had upon him, and whether he was capable of disposing of his property by will, and of understanding the consequences and effect of so doing."
"Q. `What is that opinion, and what do you base it upon?'
"A. `He really didn't know what he was doing at that time. He was sick and weak.'
"Objection; motion to strike; sustained; motion allowed. That is a conclusion; that is for the jury to determine."
Exception was noted to this ruling of the court and is the basis for appellants' assignment of error No. 2.
In the case of In re Will of Tatum, 233 N.C. 723, 65 S.E.2d 351, the witness was asked a question similar to the one asked the witness in the case at bar. After stating that she had an opinion, she was then requested to state her opinion, and she said: "In my opinion, I feel that he knew what he was doing, as he always did. There is not a doubt in my mind that he "didn't know what he was doing."
"Motion to strike as not being responsive.
"Motion allowed."
From an adverse verdict the propounders appealed. This Court held the exclusion of the foregoing evidence was error. The Court said: "Whether the answers were responsive to the questions is not controlling. The determinative question before the court below was whether the answers were relevant and competent as bearing upon the issue of mental capacity of the testator. If the answers furnished relevant facts, they were nonetheless admissible * * * [although] they were not specifically asked for. Silence may not be imposed to eliminate relevant, pertinent testimony simply because it is not specifically requested. This rule is rooted in the fundamental tenets of natural justice and is supported by common sense. Its universal application can do no harm, for if an unresponsive answer produces irrelevant facts, they may be stricken out and withdrawn from the jury. See Huffman v. Gaither Lumber Co., 169 N.C. 259, 85 S.E. 148; Hodges v. Wilson, 165 N.C. 323, 81 S.E. 340."
The appellants in this case further assign as error that portion of the charge given to the jury on the second issue as hereinafter set out in the parentheses: "* * * The burden of proof rests upon the Caveators on this issue to satisfy you *490 by the greater weight of the evidence that at the time Briscoe Taylor signed and executed Propounder's Exhibit I [the purported will], he was incapable, by reason of his mental incapacity, to know and comprehend the nature, character and extent of his property, who the natural objects of his bounty were, how he was disposing of his property, and of understanding the effect and consequences of the disposition of that property, and the effect the disposition would have on his estate. (Upon that issue, the Caveators have offered evidence which tends to show by the opinion of certain witnesses that at the time of the execution of this instrument, Briscoe Taylor, in the opinion of the witnesses, did have sufficient mental capacity)."
The evidence of the caveators does not support that portion of the charge to which they except; in fact, the evidence is directly contrary thereto. This reported instruction of the court may not be accurate. Even so, we are bound by the record as certified to us. Redd v. Mecklenburg Nurseries, 241 N.C. 385, 85 S.E.2d 311; Respass v. Bonner, 237 N.C. 310, 74 S.E.2d 721; Grandy v. Walker, 234 N.C. 734, 68 S.E.2d 807; Dellinger v. Clark, 234 N.C. 419, 67 S.E.2d 448; Strong's North Carolina Index, Appeal and Error, section 35.
Both of the foregoing assignments of error are sustained and the caveators are entitled to a new trial.
New trial.