In Re Will of Kestler

Stacy, C. J. Only two exceptions need engage our attention, the one relating to the competency of opinion evidence, the other to the correctness of the charge. 1. The will under caveat is dated 18 March, 1946. The lawyer who drew it says it was prepared on that date, and it “might have been signed a day or two later.” The testatrix died nearly eight months thereafter. Her husband, Simon Kestler, predeceased her by more than a year. He died sometime after 14 June, 1944 (on which date he and his wife executed a deed to Maude Gibson). Odessa Williams was reared in the home of the Kestlers. She came there when she was 3 years old and stayed until she was 28. She says she spent a week with her aunt after her Uncle Simon’s funeral. It was during this visit, according to the witness, that Aunt Bell “told me they had papers made out that I would get what they had — if anything happened to me my niece would get it.” The purpose of this evidence was to lay, in part, the foundation for her opinion that her aunt was consciously incapable of making a later will totally at variance with this declaration. In re Will of Lomax, 226 N. C., 498, 39 S. E. (2d), 388; In re Will of Craven, 169 N. C., 561, 86 S. E., 587. While objection was interposed to. the question which elicited the testimony, there was no objection to the answer and no motion to strike. Nevertheless, passing the sufficiency of the challenge, the evidence is competent on the issue of mental incapacity. In re Will of Brown, 203 N. C., 347, 166 S. E., 72; Bissett v. Bailey, 176 N. C., 43, 96 S. E., 648. At least its admission *217 would not work a new trial according to our previous decisions. In re Will of Hinton, 180 N. C., 206, 104 S. E., 341. Nor does it appear to be too remote in point of time. In re Will of Hargrove, 206 N. C., 307, 173 S. E., 577. The exact length of time is not given. It must have been something less than two years. In re Will of Brown, 194 N. C., 583, 140 S. E., 192. However, the testimony of Arey Gray, a neighbor, quotes the same declaration of purpose without objection. Likewise, in full accord with the above testimony is that of the sister of the deceased: “If I may say it in my own way. She would talk good; she was as nice as she could be at times and you would walk over to that corner and she would cuss you out. That don’t appear to me that her mind was sound. Eussell waited on her; did nice things for her. She said, ‘He is just like all the rest of the damn niggérs, trying to trim me and get what I have got/” 2. The following excerpt from the charge forms the basis of pro-pounder’s principal exception: “If it is proved to you by the evidence that she did not have a sound mind and disposing memory at the approximate time of making the alleged will, then it would be your duty to find that she did not have testamentary capacity to make the will in question.” Of course, testamentary capacity at the time of the making of the will is the test, In re Will of Hargrove, supra, but here the record shows a probable variation of several days between its preparation or date, and its publication. “Ordinarily, the question of a few days might not be capitally important, but this would depend entirely upon the circumstances of the given case.” In re Will of Ross, 182 N. C., 477, 109 S. E., 365. There is no evidence on the instant record of any marked change in the mental condition of the testatrix around the time the will was made. Some of the witnesses speak of the condition of her mind on “the date of the execution, or about that time.” Then, too, in other portions •of the charge the jury’s attention is directed to the “making and execution of the will” and “at the moment.” The use of the word “approximate,” while inexact, is regarded too slight a departure to be held for reversible error in the light of the present record. The issue speaks “at the time of the execution of said paper writing.” The jury could hardly have been misled by the instruction. In re Will of Stocks, 175 N. C., 224, 95 S. E., 360. 3. The propounder is named as the principal beneficiary and executor of the will. He was a stranger in blood to the deceased and often ministered to her wants after her husband’s death. He joined with a nephew in hiring "Willie Miller to stay with her. He was a constant visitor in her home. The jury has found that the will was procured by his undue influence. In re Will of Mueller, 170 N. C., 28, 86 S. E., 719. Though charged with overreaching, he did not take the witness stand. In re Will *218 of Hinton, supra. However, as tbe issue of mental incapacity was answered in tbe affirmative, wbicb sustains tbe caveat, tbe exceptions addressed to tbe issue of undue influence may be put to one side. Winborne v. Lloyd, 209 N. C., 483, 183 S. E., 756. They need not be considered. If tbe deceased were incapable of making a will, tbe manner of its procurement would seem to be immaterial. Tbe validity of tbe trial will be sustained. No error.