In Re the Will of Knowles , 11 N.C. App. 155 ( 1971 )

180 S.E.2d 394 (1971) 11 N.C. App. 155

In the Matter of the WILL of Thomas Wesley KNOWLES, Sr., Deceased.

No. 7127SC238.

Court of Appeals of North Carolina.

April 28, 1971.

Tim L. Harris, Gastonia, by Don H. Bumgardner, Gastonia, for caveator appellant.

Harvey A. Jonas, Jr., Jonas & Jonas, Lincolnton, and Willis C. Smith, Gaston, Smith & Gaston, Belmont, by Richard Jonas, Lincolnton, for propounder appellee.

HEDRICK, Judge.

By his first assignment of error the caveator contends that the court committed prejudicial error by allowing the two attesting witnesses to the will "to give their lay opinion concerning the competency of the deceased, Thomas W. Knowles, Sr. to make a will. * * *" This assignment of error is without merit. In North Carolina, a witness, expert or otherwise, may give his opinion as to whether a person has sufficient mental capacity to execute a will, if he has had reasonable opportunity to observe or converse with him. In Re Will of Cauble, 272 N.C. 706, 158 S.E.2d 796 (1968); Clary v. Clary, 24 N.C. 78. The value of the opinion is dependent upon the opportunity of the witness to form it. State v. Khoury, 149 N.C. 454, 62 S.E. 638 (1908). The weight to be given to the opinion testimony is for the jury.

The caveator by his next assignment of error contends that the court committed prejudicial error in instructing the jury that a request for a witness to attest the will could be inferred from the circumstances, and that a failure to object to the requested attestation by some third party could be considered a constructive request.

In North Carolina, the testator's request for attestation need not be specific; it may be implied from the conduct of the testator and the surrounding circumstances. 7 Strong, N.C. Index 2d, Wills, § 3, p. 559. "A constructive request is sometimes considered the equivalent of an actual request." In Re Will of Kelly, 206 N.C. 551, 174 S.E. 453 (1934). The instructions complained of were appropriate and correct, for the evidence tended to show that the testator at the time of the execution of the will, although severely physically incapacitated, was mentally alert, that he could say "yea" and "nay", that he could shake his head, and that he could gesture with his left hand. Clearly, there was sufficient evidence from which the jury could find that Mr. Knowles constructively requested the attestation of his will.

The caveator's final assignment of error is as follows: "The court erred in failing to give a peremptory instruction in favor of the caveator on the issue of the execution of the will."

The caveator argues that the deceased never requested or directed anyone to sign the will for him as required by G.S. § 31-3.3(b). We do not agree. The evidence with respect to the execution of the will tends to show: Mr. Knowles, Vertie K. Wilson, C. G. Wilson, Jr., Mrs. W. M. Hall, and Faye Sloan Dixon were all together in a small room at the Veterans Hospital just prior to the execution of the will. Mr. Knowles was in a wheel chair. C. G. Wilson, Jr., read the will to Mr. Knowles and asked if that was what he wanted. Mr. Knowles acknowledged by nodding his head in the affirmative. Mr. Wilson then went out into the hall to find someone to sign Mr. Knowles' name to the instrument. There he found the Reverend McCulley who agreed to help. After being introduced to Mr. Knowles, Reverend McCulley signed Mr. Knowles' name to the will, and then, while Mr. Knowles held the tip of the pen, made a mark thereon. Mrs. W. M. Hall and Faye Sloan Dixon then attested the will in the presence of each other and Mr. Knowles.

It is our opinion and we so hold that this evidence gives rise to an inference to be resolved by the jury as to whether the will was duly executed according to law. The testator signified by a nod of his head that the paper writing read to him was his will. As previously noted, although the testator was severely physically incapacitated, he was mentally alert, and able to make known any objection he might have had to Reverend McCulley's signing his name to the will. This he failed to do; indeed, he placed his hand upon the pen while Reverend McCulley made his mark.

In the trial in the superior court, we find no error.

No error.

BROCK and MORRIS, JJ., concur.