In Re Will of Shute

MooRE, J. Propounder assigned as error the following portion of the judge’s charge to jury: “Now, members of the jury, the Court instructs you that if the propounders have satisfied you by the greater weight of the evidence, the burden being upon the propounders to so satisfy you that at the time the paper writings were torn there at the hospital, in the presence of Rowena M. Shute and Mr. Day, that she didn’t have sufficient mental capacity to revoke her will, that is that she didn’t possess mind sufficient to understand without prompting what she was engaged in, and the kind and extent of her property, and the natural objects of her bounty, and the manner in which she desired the disposition of her property to take effect, and the effect which the disposition of her property would have upon her estate, then it would be your duty to answer this second issue NO.” (Emphasis ours.) Propounder’s position is well taken. The court placed on the pro-pounders the excessive burden of showing that testator was lacking in all of the elements of mental capacity essential to the revocation of a will. To establish mental incapacity for revoking a will, it is sufficient to negative only one of the essential elements. In re Will of Kemp, 234 N.C. 495, 499, 67 S.E. 2d 672 (wherein In re Will of Efird, 195 N.C. 76, 141 S.E. 460, is distinguished). “One lacking testamentary capacity is not competent to revoke a *699 •prior will. The same degree of mental capacity is necessary to revoke a will as to make one.” 57 Am. Jur., Wills, sec. 458, p. 322. A person has sufficient mental capacity to make ja will or to revoke a prior will if he (1) comprehends the natural objects of his bounty, (2) understands the kind, nature and extent of his property, (3) knows the manner in which he desires his act to take effect, and (4) realizes the effect his act will have upon his estate. In re Will of Tatum, 233 N.C. 723, 727, 65 S.E. 2d 351; In re Will of York, 231 N.C. 70, 71, 55 S.E. 2d 791; In re Rawlings’ Will, 170 N.C. 58, 63, 86 S.E. 794. If all the elements of testamentary capacity are essential to make or revoke a will, obviously the lack of any one of them renders the testator incapable of performing such act. The vice of the challenged instruction is the connecting of the stated elements by the conjunction “and,” for thereby the court declares to the jury that propound-ers must show the lack of all of the essentials of testamentary capacity in order to prevail on the second issue. It is true that the court, elsewhere in the charge, properly instructed the jury as to the essential elements of testamentary capacity, that is, capacity to make or revoke a will. But this does not nullify the prejudical effect of 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. Morgan v. Oil Co., 238 N.C. 185, 196, 77 S.E. 2d 682. New trial.