In Re Will of Nicholson

Issue of devisavit vel non, raised by a caveat to the will of H. A. Nicholson, late of Pasquotank County, based upon alleged mental incapacity.

The principal exception is to the following testimony of Mrs. Annie Nicholson, distant relative of the deceased:

"Q. Now, Mrs. Nicholson, from your observation of him have you an opinion satisfactory to yourself as to his mental capacity, to know what property he had, who his relatives were, what claims they had upon him, and the scope and effect of making a will in December, 1930? Answer: No, I do not think so."

"Q. You have or have not that opinion? Answer: I have an opinion."

"Q. What is that opinion? Answer: My opinion is that he was not capable of making a will. I do not think he had the mind to make a will. That is my opinion."

Motion to strike out the answer; overruled; exception.

From a verdict and judgment in favor of the caveators, the propounders appeal, assigning errors. Propounders contend that under S. v. Hauser, 202 N.C. 738,164 S.E. 457, S. v. Journegan, 185 N.C. 700, 117 S.E. 27, In re Peterson,136 N.C. 13, 48 S.E. 561, Crowell v. Kirk, 14 N.C. 355, and other decisions to like effect, the evidence of Mrs. Nicholson invaded the province of the jury, and, for this reason, should have been excluded.

In reply, the caveators say the answer of the witness, even if somewhat objectionable, cannot be held for reversible error when taken in connection with the question propounded and the whole record. In re Will of Creecy,190 N.C. 301, 129 S.E. 822; In re Brooch's Will, 172 N.C. 520,90 S.E. 681. This was the view of the trial court, and we are disposed to uphold the ruling. Whitaker v. Hamilton, 126 N.C. 465, 35 S.E. 815.

No error.