Matter of Will of Wadsworth

227 S.E.2d 632 (1976) 30 N.C. App. 593

In the Matter of the WILL of James B. WADSWORTH, Sr., Caveat.

No. 766SC287.

Court of Appeals of North Carolina.

September 1, 1976. Certiorari Denied November 4, 1976.

Pritchett, Cooke & Burch by W. W. Pritchett, Jr., Windsor, for propounder-appellant.

Howard P. Satisky, Raleigh, for caveator-appellee.

Certiorari Denied by Supreme Court November 4, 1976.

VAUGHN, Judge.

Propounder's first assignment of error is that "Propounder excepts to the questions asked the Caveator's witnesses because the questions were not limited to the testator's mental condition at the approximate time he executed his will."

On the issue of testamentary capacity, it is proper to show the mental condition of the maker at a reasonable time before and after the execution of the purported will. In Re Will of McDowell, 230 N.C. 259, 52 S.E.2d 807. Witnesses observed testator within a reasonable time before and after the execution of the will. For the most part they did not attempt to give an opinion of his condition on the date of the execution of the will. It was perfectly proper for them to give their opinion as of the time they observed the deceased. Indeed, testimony of one who does not qualify as an expert should be limited to the witness's opinion of the testator's condition as of the time the witness had the opportunity to observe the testator. In Re Will of Rose, 28 N.C.App. 38, 220 S.E.2d 425. It is then for the jury to determine whether that evidence supports the inference that the testator was incompetent at the time of the purported execution of the will. We have considered all of defendant's exceptions brought forward under the first and fifth assignments of error and find no prejudicial error. Under the charge of the court, the jury could only have understood that they must make their determination of mental capacity as of the time of the purported execution of the will and not as of some other time. When the witnesses gave their opinion on the testator's mental capacity in 1974, the jury could have only understood that they meant during the times they observed testator in 1974.

Propounder's second assignment of error arises out of the following: One of the beneficiaries under the will was testifying on direct examination. The witness blurted out, "He [testator] said it [the will] was just what he wanted." The statement was not in response to any question put to her. The judge instructed the jury not to consider the statement and propounder takes exceptions to the ruling. The trial judge was correct. The issues being tried were undue influence and mental capacity. The witness was interested within the meaning of G.S. 8-51. The statement was not given as a basis for the witness's opinion on mental capacity. It was only directed toward proving facts essential to propounder's case. It was properly excluded. Whitley v. Redden, 276 N.C. 263, 171 S.E.2d 894.

Propounder excepts to the failure of the court "to define for the jury the term ``greater weight of the evidence.'" The instruction was not properly requested at trial. Where, as here, the court correctly places the burden of proof and states the proper degree of proof, the court is not required to define the term "greater weight of the evidence" in the absence of a special request. Hardee v. York, 262 N.C. 237, 136 S.E.2d 582.

Finally, propounder contends the court should have allowed his motion to set the verdict aside as being contrary to the greater weight of the evidence. The motion was addressed to the sound discretion of the trial judge on his ruling and will not be disturbed in the absence of a manifest abuse of discretion. No abuse of discretion has been shown.

We have carefully considered all of the exceptions brought forward on appeal. We conclude that the trial was free from error so prejudicial as to have influenced the verdict of the jury.

No error.

MORRIS and CLARK, JJ., concur.