concurring: The opinion of the Court in this case does not conflict, as I understand it, with the rule of evidence that a witness cannot give his opinion in answer to a question which involves a matter of law as one of its ingredients, as, for example, whether a certain person had or had not sufficient mental capacity to execute a deed or will, or to make a contract; what is mental capacity and the standard by which it is to be gauged, being questions of law. I adhere to what I said in the case of In re Peterson, 136 N. C., 28, and concur in the decision of the Court in this case, because I do not- think the questions which are now ruled to be competent fall within the principle discussed by me in that case. There is a wide difference between mental condition or soundness and mental capacity, and if this difference is carefully regarded, most of the cases in our reports can easily be recon-*396oiled. Crowell v. Kirk, 14 N. C., 356; Clary v. Clary, 24 N. C., 78; Smith v. Smith, 117 N. C., 326; Lawson, on Exp. and Ob. Ev. (2d Ed.), p. 155; Fairchild v. Bascom, 35 Vt., 416; Reg. Richards, Fos. and Fin., 87; Walker v. Walker, 34 Ala., 470; In re Arnold, 14 Hun., 525. The case of Whitaker v. Hamilton, 126 N. C., 465, was, in my opinion, erroneously decided, and should be overruled. A witness is no more competent to express an opinion as to the mental capacity of a testator to make his will than he would be to state that an act was negligently done, both involving questions of law. The latter kind of testimony this Court has steadily and consistently held to be incompetent. Tillett v. Railroad, 118 N. C., 1031. Nor can he state that another has acted bona fide. Wolf v. Arthur, 112 N. C., 691. In Tillett v. Railroad, at p. 1042, Justice Avery said: “When, therefore, the witness was asked to state whether a car was coupled in a negligent manner, the question was calculated to elicit an opinion upon one of the very questions which the jury were impanelled to decide, and the objection to its competency, being made in apt time, was properly sustained.” Smith v. Smith, supra. Mental state may be proved by a witness’ opinion, as in McRae v. Malloy, 93 N. C., 154, cited in the opinion of the Court. See, also, Sherrill v. Telegraph Co., 117 N. C., 353. It is also competent for a witness to give his opinion as to whether a person is a negro or not (Hopkins v. Bowers, 111 N. C., 175), or that his appearance indicates the presence of negro blood in his veins, as in Gilliland v. Board of Education, 141 N. C., 482. But in all the cases just noted, and in those cited in the opinion of the Court, as well as in the principal case, the inquiry referred to a state or condition not complicated with a question of law. A witness cannot give his opinion as to what the law is, either directly or indirectly, unless that is the very issue involved or the subject of inquiry, as when it relates to the law of some other jurisdiction and he is called as a professional expert to prove *397it. That a nonexpert should not be asked a question requiring him to express his opinion upon a question of law would seem to he a proposition so plain as not to require any argument to demonstrate its correctness. He could just as well be asked if a will or deed had been properly executed. It is not the nature of the particular question of law involved, but the fact that it involves a question of law, which renders the witness incompetent to answer such a question.
Although concurring with the Court, I have discussed this matter in a separate opinion because it is considered by me as very important to preserve the true and proper distinction which separates competent from incompetent evidence; otherwise great injustice may he done in the trial of causes.