Rakestraw v. . Pratt

(437) Action, involving the validity of a deed purporting to have been executed by Nellie Rakestraw to Emma Pratt, one of her daughters, and also involving the validity of the will of said Nellie Rakestraw now deceased, in which she devised her estate to Emma Pratt, to the exclusion of her other children.

On issues submitted, the jury rendered the following verdict:

1. Is the paper-writing offered in evidence the last will and testament of Nellie Rakestraw? Answer: "Yes."

2. Was Nellie Rakestraw of such unsound mind at the time of the execution of the deed as to render her incapable of executing a deed? Answer: "No."

3. Did James Pratt and his wife, Emma, procure the execution of the said deed by exerting an undue influence over Nellie Rakestraw? Answer: "No."

Judgment on the verdict for defendants, and plaintiffs excepted and appealed. From the facts in evidence it appeared that on 7 July, 1908, Nellie Rakestraw, owning two tracts of land and other property, aggregating in value four or five thousand dollars, made her last will and testament, in which she devised and bequeathed her estate to her daughter, Emma, with whom she was then living on the land, and twenty days thereafter, on 27 July, 1908, she executed a deed for this land to her daughter, Emma. In August, 1909, said Nellie Rakestraw died, and her other children and heirs at law, having duly entered a caveat to the will and instituted a suit to set aside the deed, on the ground of mental incapacity and undue influence, the two proceedings were consolidated without objection and the issues tried and determined as heretofore stated.

On the trial there was evidence on the part of plaintiffs tending to show that, at the time of making the will and the deed, Nellie Rakestraw was 84 or 85 years of age, well-nigh physically helpless, and mentally incompetent to make either a will or deed. In support of this position, Mrs. Lou Gann, one of the daughters examined as a witness, gave it as her opinion that the mother was mentally incompetent (438) at the time of execution of the will and deed, and testified further that the witness was at the home with the mother the day after the will was made, and that her mother's mind was very weak; did not recognize the witness, and that the mother then said to her she had made no will and also that Emma, in the presence of the mother and another sister, said it was "all a story about the will," and the mother made no reply, etc.

Plaintiffs proposed to prove same or substantially similar facts by Mrs. Martin, another sister, and the evidence was excluded, the court being of opinion that testimony was incompetent under section 1631, Revisal, excluding, in certain cases, testimony of interested persons as to a transaction with deceased persons. The proposed evidence was in support of the opinion just given by these witnesses as to the mental incapacity of the mother, and is not regarded as a "transaction" by our decisions construing the section referred to. In McLeary v. Norment,84 N.C. 235, the Court held: "Where a witness testifies to the want of mental capacity in a grantor to make a deed, and that his opinion was formed from conversations and communications between the witness and grantor, it was held competent to prove the facts upon which such opinion was founded. Section 343 of The Code does not apply to the facts of this case." Section 343 of The Code of that time corresponds to section 1631 of present Revisal. It was urged for the defendant that the evidence had relation only to the issue on the validity of the will, and, even if the ruling was erroneous, it should not be allowed to affect the verdict as to the deed, but we cannot so consider the evidence. The deed was executed twenty days after the execution of the will, and, under the circumstances presented, if the fact is accepted by the jury that, within twenty days of the execution of the deed, the alleged testatrix could not remember for twenty-four hours that she had made a will, this of itself would be a relevant circumstance as to the intelligent execution of the deed. Apart from this, if, as defendant contends, Nellie Rakestraw, the mother, had mental capacity sufficient to execute these instruments, the fact that she allowed the devisee, in her presence (439) and without protest, to assert that the making of the will was "all a story," when she had just made such a will, this in one aspect might be considered a relevant circumstance on the third issue as to undue influence exercised by such devisee. On a careful perusal of the record, the Court is of opinion that the exclusion of the evidence referred to constitutes reversible error, and the cause must be tried before another jury.

New trial.