Citation Numbers: 48 S.E. 561, 136 N.C. 13
Judges: CONNOR, J.
Filed Date: 9/20/1904
Status: Precedential
Modified Date: 1/13/2023
The will of E. R. Peterson was executed on 25 August, 1898, in which he devised and bequeathed to his wife, Hattie A. Peterson, his entire real and personal estate, appointing her executrix thereto. He died on 6 September of the same year, and the will was admitted to probate in the Superior Court on 10 September. The testator left no children. On 2 January, 1899, the said Hattie A. Peterson executed her last will and testament, in which she devised and bequeathed unto Mary E. Raynor, now Mrs. Ira M. Hardy, her entire real and personal estate, appointing the said Mary E. her executrix, and the will was duly admitted to probate on 6 May, 1901.
On 17 July, 1901, B. F. Peterson and Mrs. Lucy A. Kern *Page 11 filed a caveat to the will of E. R. Peterson, alleging that the said "paper writing" was not the last will and testament of E. R. Peterson, for that "at the time he signed the same he did not have sufficient mental power and capacity to make and execute a valid will," and that the execution thereof was procured by the "importunity, coercion and undue influence of (15) the said Hattie A. Peterson and others." An issue was thereupon made up and transferred to the Superior Court for trial. The jury having responded to the issue in the negative, judgment was rendered accordingly, and the propounder, having noted exceptions to the rulings and charge of the Court below, appealed. The propounder noted an exception to the ruling of his Honor in regard to the opening and conclusion of the argument. This being a matter resting in the sound discretion of the Court except in the cases mentioned in rule 3, the exception cannot be sustained. Rule 6, Clark's Code, 953. In the view which we take of the case, it is not necessary to pass upon all of the exceptions, as many of them may not arise upon another trial. Exceptions numbered 8 to 15 relate to his Honor's ruling in regard to the competency of Mrs. Kern and B. F. Peterson to testify to alleged conversations with the testator, E. R. Peterson, and his wife, Hattie A. Peterson, which were objected to under section 590 of The Code. It is alleged that these conversations were had in the presence of Mrs. Hardy who was then a young girl of fourteen to sixteen years of age, and is now the executrix of Mrs. Peterson. Mrs. Kern testified that she came to Washington, the home of her brother, E. R. Peterson, in May, 1898, to see her brother, because she heard he was ill; that Miss Baynor, now Mrs. Hardy, was a very distant relative of her brother, and first cousin to Mrs. Peterson; that she did not stop at her brother's house on her visit to him during his last illness; that she had always stopped there before. (16)
To the following testimony the propounder objected, the objection was overruled and exception noted: "Mrs. Peterson told me in the presence and hearing of Miss Baynor that she did not want me at the house, and gave as her excuse that it put too much on her servant." She also testified, under objection, to other conversations with Mrs. Peterson in the *Page 12 presence of Mrs. Hardy and Mrs. Waters, to all of which the propounder excepted.
This testimony comes within the principle decided in Pepperv. Broughton,
E. R. Peterson, the alleged testator, was sick for several months prior to the execution of the will and his death. Dr. Rodman testified that he, as his physician, took him to Baltimore in April, 1898, for the purpose of an operation, and told him that there was an element of danger in such operations, and asked him if his business affairs were arranged. He told the witness that he had written his will and left everything to his wife. The operation was performed. He returned home. The witness usually saw him from one to three times a day. Some days he did not see at all. He gave him morphine occasionally. He was always rational until the night before he died. In the latter part of August the witness told him that he was a sick man, and could not say that he would get well. He told him that he (Peterson) had told the witness that he had a will, but he thought perhaps that he had better (20) have it drawn up by a lawyer. Peterson said that he would think about it next day. He asked the witness if William B. Rodman (a lawyer) was in town, and the witness told him no. At the witness' suggestion he sent for Mr. Bragaw (a lawyer), and Mr. Randolph came with him. Mrs. Peterson went out of the room. Bragaw asked him how he wanted his property left, and he said he wished it left to his wife. Bragaw then drew the will and Peterson signed it, and the witness, together with Randolph, witnessed it in presence of Peterson *Page 15 and of each other. Both saw him sign it. Bragaw told him that he had better specify some of his property and put the remainder in the residuary clause, which was done. After it was drawn and read, he asked if everything was left to his wife, and Mr. Bragaw said yes, and he signed the will. His mind was all right and he knew what he was doing. Dr. Rodman testified on cross-examination that he "was consulted by Peterson in December, 1897, or January, 1898. As early as March or April, 1898, he became satisfied that it was cancer and that it was incurable. He took him to Baltimore, where an operation was performed, and it disclosed cancer. It had no beneficial effect except to diagnose his disease. The malignant disease first started in the gall bladder, then extended to the liver, which also became the seat of the disease. The tumors or nodules on the gall bladder presented the appearance of a bunch of grapes. The bile duct was also examined during the operation and was involved in the malignant disease. After his return from Baltimore he continued to grow worse, and his extreme jaundice continued and deepened in color. His falling off and emaciation also continued, so that at the time of his death he was a mere skeleton, weighing probably eighty pounds. This was his condition for some weeks prior to his death. The function of the liver is to secrete bile. The gall bladder acts as a reservoir to hod the bile after its secretion by the liver, and the bile duct conveys the bile from the gall bladder into the (21) intestines. Bile is necessary to the assimilation and digestion of food, and without that death ultimately ensues. The result of the diseased condition of these organs was to obstruct the passage of bile into the intestines, and it produced jaundice, intestinal indigestion, and helped to starve him, but the malignancy of the disease had more to do with his emaciation than the jaundice. The blood became clogged with impurities and contained bile. Its presence in the blood produced jaundice. It is called bile poison. It impoverishes the blood. One result of bile poison of the blood is to produce in some cases languor, drowsiness, unconsciousness, coma, and even death. The brain is nourished and fed by the blood, and if the blood is poisoned and improverished it is bound to have some effect on the brain, in my opinion, although Mr. Peterson's brain was not impaired."
It was admitted that Dr. Rodman was an expert physician.
Dr. P. A. Nicholson was introduced by the propounder and testified that he was a practicing physician; knew Mr. Peterson and saw him during his last sickness; that the last visit he made him was in the third week in August, when he saw him *Page 16 about half an hour. He talked sensibly and reasonably; never saw him any other way; he knew Peterson had mind enough to make disposition of the property. On cross-examination he said the mind of Peterson was not impaired to any degree that he could discover. He was a very sick man, and the witness knew that he would never get up again, but it was not preposterous for him to hope to get well; he had cancer of the gall duct, and that class of patients are always very sanguine.
The caveators introduced Dr. John G. Blount, who was admitted to be an expert physician. He testified in regard to the function of the liver, etc., to which there was no objection. He was asked the following question: "If the jury should (22) find from the evidence that Peterson was in the physical condition testified to by Dr. Rodman, and should further find from the evidence that it was accompanied by the mind, incoherency of speech, impairment of thought, together with a condition of his body, would he, in your opinion as a physician, during the last two or three weeks of his life, have sufficient mental capacity to know what property he had, to whom he was giving it, and how he was giving it, in case he undertook to make a disposition of it, assuming that the jury should find the facts stated in this question to be established by the evidence?" To this question the propounder objected; the objection was overruled and the propounder excepted. He answered that in his judgment he would not.
The caveators introduced Dr. S. T. Nicholson, whose testimony was substantially like that of Dr. Blount. The exception to the testimony cannot be sustained. These witnesses were examined as experts; they did not see the alleged testator, and their opinions were expressed upon hypothetical questions, the form of which has been approved by this Court. A large number of witnesses were examined by the propounder and caveators in regard to the mental condition of the alleged testator, in which there was a wide difference of opinion expressed. Mr. Bragaw and Mr. Randolph corroborated the testimony of Dr. Rodman.
A large number of special instructions were presented to the Court by the propounder and the caveators, some of which were given, several were modified and a number refused, to which exceptions were noted. We think it necessary to notice only two of the exceptions to the charge.
(23) At the request of the caveators, the Court instructed the jury as follows: "That the caveators, the brother and sister of E. R. Peterson, have offered witnesses, Dr. J. G. *Page 17
Blount and Dr. S. T. Nicholson, who are termed medical experts, that these witnesses have testified that in the latter stages of the disease, from which Peterson was suffering and died, they would expect to find certain symptoms and conditions, among them the loss of memory, impairment of mind, inability to fix the attention, want of coherency, drowsiness and stupor, lack of will power and resistance; and these medical experts further testified that if these conditions and symptoms did exist, then, in their opinion, the said Peterson did not have the capacity to make a will. Now the Court instructs you that the law attaches peculiar importance to the opinion of medical men upon the question of mental capacity when they testify to mental capacity on matters within the domain of their professional experience and training, as by study and experience in their profession they become experts in mental ailments." The propounder accepted that it selects two of the physicians who were experts who never saw the alleged testator while he was sick, and who testify only upon the physical conditions accompanied by physicians who express opinions based upon actual personal knowledge of the condition of Peterson at and near the time of making the will. While it may be that upon a critical view of the language of his Honor it is capable of this construction, it will be observed that his Honor adopted the language of the prayer of the caveators, which was evidently drawn with a view of presenting to the jury the principle announced as to the weight to be given to the opinions of medical men in regard to mental condition. Dr. Rodman and Dr. T. A. Nicholson testified as to the actual conditions, giving their opinions deduced therefrom, while Dr. Blount and Dr. S. T. Nicholson testified as experts only. We are quite sure (24) that his Honor did not intend the jury to understand that the law attached more importance to the opinion of the medical witnesses who had never seen the alleged testator than it did to the opinion of those who had seen, and one of them attended him in his last illness. His evident purpose was to announce a general principle which would apply to all of the medical witnesses. However this may be, the propounder presents by the exception a more serious question: Is the principle, as applied by his Honor to the testimony of Dr. Blount and Dr. P. A. Nicholson, correct? Does it apply to the testimony of witnesses who have no personal knowledge or observation upon which their opinions are based? In Flynt v. *Page 18 Bodenhamer,
In Goodwin v. State,
His Honor, in response to the prayer of the caveators, instructed the jury that "if E. R. Peterson had died intestate, and having died without children, his widow would have been entitled to one-half of the personal estate and to dower in his real estate, and his brother and sister would have been entitled to the other one-half of his personal estate, and also to his real estate subject to the widow's right of dower. The caveators insist that the fact that E. R. Peterson, by the said paperwriting, entirely excluded his blood from any share in his estate and gave the whole thereof to his widow, is (27) a circumstance, to be considered, tending to show lack of mental capacity to make a will, and the Court so charges you." *Page 20 His Honor repeated this language, concluding: "Is a circumstance to be considered on the question of undue influence exerted upon him to make the alleged will?" To both these instructions the propounder excepted. Mr. Underhill, in his excellent work on wills, says: "The fact that a man bequeaths his estate to his wife, excluding his children, his father and other relatives, is absolutely immaterial upon the question of undue influence. The silent influence of affection and respect augmented by the tender and kindly attention of a faithful wife cannot be regarded as in any sense undue influence." Underhill Wills, 212. An examination of the cases cited by the author sustains the language quoted. In the light of the experience and observation of men of the best judgment and soundest minds, we can see nothing in the fact that this man gave his estate, the produce of their joint industry and economy, to his wife, tending to show mental incapacity or undue influence. We do not think it tended to show either undue influence or mental incapacity. It seems in the light of the testimony the most natural and fitting expression of affection and solicitude of the testator. His acts and declarations and his letters written to her are all consistent with the disposition which he made of his estate. The exception should be sustained.
While we do not deem it necessary to pass upon the exception to the refusal of the Judge to dismiss the proceeding for that there was no evidence of undue influence, we think it proper to say that when the caveators rested their case there was, in our opinion, no such evidence. The propounder, however, waived this exception by introducing evidence. For the reasons pointed out, there must be a
New trial.
Pepper v. . Broughton , 80 N.C. 251 ( 1879 )
Peacock v. . Stott , 90 N.C. 518 ( 1884 )
Blake v. . Blake , 120 N.C. 177 ( 1897 )
Johnson v. . Townsend , 117 N.C. 338 ( 1895 )
Bullin v. Moore , 256 N.C. 82 ( 1961 )
In Re the Will of Jones , 362 N.C. 569 ( 2008 )
In Re Arledge's Will , 172 N.C. 563 ( 1916 )
In Re Will of Efird , 195 N.C. 76 ( 1928 )
In Re Will of Holmes , 224 N.C. 830 ( 1945 )
Dulin v. . Henderson-Gilmer Co. , 192 N.C. 638 ( 1926 )
Brooks v. . White , 187 N.C. 656 ( 1924 )
Martin v. . Hanes Co. , 189 N.C. 644 ( 1925 )
Smith v. . Moore , 142 N.C. 277 ( 1906 )
In Re Will of Brown , 194 N.C. 583 ( 1927 )
In Re Bradford , 183 N.C. 4 ( 1922 )
In Re Will of Ball , 225 N.C. 91 ( 1945 )