In Re the Will of Rose

VAUGHN, Judge. A number of caveator’s assignments of error arise out of of the following. Other than those who saw decedent in the law office on the day the purported will was executed, most of propounder’s witnesses could not say that they had seen or talked with decedent within a month of the time the will was executed. In substance, the following question was asked of each of them: “ . . . based on your conversations with him, and observations I ask you if you have an opinion, satisfactory to yourself, as to whether James Rose possessed on March 19, 1974-, *42 sufficient mental capacity to know what property he had; who his relatives were; and what claims they had upon him and whether he was capable of disposing of his property by will; and of understanding the consequences and effect of so doing?” (Emphasis added.) Caveator promptly objected to these questions, the objections were overruled and the witnesses were allowed to answer. Caveator readily concedes that the witnesses could state their opinions of decedent’s condition as of the time they had the opportunity to observe him. It is also clear that the opportunities of the witnesses to observe decedent were close enough to the date of the alleged execution of the will so as to make their opinion of his condition, at the time they saw him, relevant on the question of his condition at the time of the execution of the purported will. The objection, as we see it, is that the questions called for the witnesses’ opinion of decedent’s condition on the specific day of 19 March 1974, a day when they did not have the opportunity to observe decedent. The jury, of course, could infer that decedent was competent on the day in question from testimony that he was competent a month before or after. We believe, however, that this is an inference for the jury and not for the lay witnesses. The prejudice is compounded when, as here, the judge then recapitulates the testimony of each witness to the effect that, on the date the purported will was executed, the decedent was competent. The witnesses’ opinion of decedent’s condition should have been limited to the time when they had the opportunity to observe decedent. This is particularly true since decedent’s mental disability, if any, was a consequence of his excessive use of alcohol over a long period of time and the degree of that disability apparently varied with the time and amount of alcohol ingested. At least one of caveator’s assignments of error to the charge must be considered as well taken. In his mandate on mental capacity the judge instructed the jury: “I instruct you as to this second issue that if the Caveators, that is Mrs. Etta Rose, if she has proved to you by the greater weight of the evidence that on March 19, 1974, that the deceased, James W. Rose, lacked sufficient mental capacity to know the kind and nature and extent of his property or to know the natural objects of his bounty or to understand the legal consequences of the Propounders’ *43 Exhibit 1, the purported last will and testament of James W. Rose, I say to you, ladies and gentlemen, if the Caveators so proved those things to you by the greater weight of the evidence, then you ought to answer that second issue in their favor.” (Emphasis added.) The emphasized portion thus placed on the caveators “the excessive burden of showing that testator was lacking in all of the elements of mental capacity essential” to the making of a will. In re Will of Shute, 251 N.C. 697, 111 S.E. 2d 851. All the elements of testimentary capacity are essential to make a will and the lack of any one of them renders one incapable of making a will. It may well be that the omission of the critical words “either of” preceding “those things” is due to an error in the transcription. We must nevertheless take the record as we find it. It is certainly true that just before the emphasized portion of the quoted part of the charge the judge had properly instructed the jury as to the essential elements of testamentary capacity. This does not nullify the erroneous instruction. “Where instructions in regard to a material matter are conflicting, one erroneous and the other correct, a new trial must be granted, for the jury is not supposed to know which one is correct and this court cannot say that they did not follow the erroneous instruction.” In re Will of Shute, supra. Moreover, not all of pro-pounder’s witnesses testified that decedent possessed all the evidence of mental capacity to make a will. In light of the foregoing, we cannot say that the trial below was free from errors prejudicial to the caveator. Since we hold that there must be a new trial we do not discuss any of the numerous other assignments of error brought forward on this appeal. New trial. Chief Judge Brock and Judge Martin concur.