Williams v. . Haid

Faircloth, C. J.: We dispose of this case by considering the instructions of the court upon the third issue. That issue was in these words: “ Was the said Lawrence Brown, deceased, at the time of making the said deed of sound mind and disposing memory?” which the jury answered “No.” Alter numerous witnesses were examined on the question, the court charged the jury that the burden of this issue was upon the plaintiff “ to satisfy them by a preponderance of proof that Lawrence Brown, at the time of executing the deed to the defendant, was not of such a state of mind as to comprehend the nature of his act, to understand what he was doing and to know the direct consequence of bis act * * * ; that if the jury believe from the whole of the evidence that at the time of executing the deed he had sufficient mind or mental capacity to understand what he was doing — what property he was conveying, to whom he was conveying it, and for what purpose the conveyance was made, they should answer' the third issue ‘ Yes.’ ” *485 In the latter part of the charge, his Honor instructed the jmy : “ And if the jury believe that at the time this deed was executed Lawrence Erown was 64 years of age, was suffering from physical disease which had developed four years previous thereto, which had grown in strength and virulence up to the time of the execution of this deed, and from the effect of which he died within three months thereafter, and that this old age and physical infirmity had weakened his mind, then, this deed and other disposition of h.is property, being a bounty and made without consideration, there arises the presumption of law that he was incompetent to execute t e deed or to make the contract, and the burden of proof is upon the defendant to satisfy the jury that he was competent, and if the jury are not so satisfied, then the deed and contract are null and void, and the jury must find the third issue ‘ No.’ ” The defendant excepted. In the latter part of the charge quoted, there is error. The capacity or incapacity to make a deed or contract is a question of fact to be ascertained by the jury, and not one of law. The law does not presume that a man 64 years of age is incompetent to contract, nor that one suffering from physical disease from which he dies in a few months, even if his mind had been weakened by suffering, is incapacitated to contract or convey his property. His actual condition under such and similar circumstances is the matter to be inquired of by the jury. The law cannot declare or presume in the matter until facts are found or admitted. At what age, for instance, will the law presume incompetency ? Would it do so at 50, 60 or 75 years? How much physical suffering and what degree of weakness of mind would the law require to exist before it would presume incompetency ? It does not help the case to say that, although a part of the charge is erroneous, there is another part of the charge *486 on the same point which was correct, and that as a whole there is no error because the jury would be presumed to have obeyed the correct portion. State v. Fuller, 114 N. C., 885. That is to assume that the jury understands the law and is able' to detect and discard erroneous instruction which would not be a safe assumption ; besides, it is the duty of a jury to follow the instructions of the court upon the law7 and legal presumptions, whether they are right or not. "With this conclusion it is unnecessary to pass upon the other questions, as they probably will not be presented at the next trial. Yenire de novo.