Winborne Ex Rel. Fentress v. Lloyd

Schenck, J. We will take up the exceptions as grouped by the appellant in his assignments of error. *486 First assignment of error: Exceptions 1, 2, 3, 4, 5, 6, and 1. These exceptions, according to the brief of the appellant, raise two questions: “(A) The competency of questions and answers, and (B) the competency of the trial judge’s remarks.” The questions objected to were propounded by the plaintiffs to their witness, Dr. J. G. Raby. Each of the questions was framed as follows : “In your opinion, did Annie Dancy Meeks, on 10 November, 1933, have sufficient mental capacity, . . . either to make a will or to execute a deed, or to execute an assignment of personalty?” to which the witness answered in each instance “No.” Counsel for appellant stated that the basis of his objection was that the witness had stated that the last time he saw Annie Dancy Meeks was on 29 October, 1933, and the date fixed by the question was 10 November, 1933. This objection is untenable. The witness, an admitted medical expert, testified that he had treated Annie Dancy Meeks off and on for 12 years, and in his opinion she was suffering from senile dementia, an incurable condition due to old age, which grows progressively worse until death, and that by reason of this condition she had become “mentally incapacitated, feeble, and crazy,” on 29 October, 1933, and that this condition continued up till 10 November, 1933, and until her death, and further, in his opinion, on 10 November, 1933, she did not have sufficient mental capacity to make a will. The witness further said: “I would say that a person couldn’t recover from senile dementia unless they could get this nature reversed and get younger; it is due to old age. No, sir; they don’t recover from senile dementia.” We think that the expert knowledge of the physician as to the cause, symptoms, and effect of senile dementia and the opportunity he had of observing Annie Dancy Meeks for 12 years prior to and up to within 12 days of the date in question, namely, 10 November, 1933, rendered him a competent witness to express an opinion upon her mental condition at that time, the date the documents in question were signed. “The competency of the trial judge’s remarks” is first raised in the brief of the appellant. No exception is noted to these remarks in the record proper, and in the first assignment of error, under which the appellant discusses such remarks, there is no mention made of them. It is said in S. v. Bryant, 189 N. C., 112 (115) : “The fact that exception was not entered at the time the remark (of the judge) was uttered is immaterial. The statute is mandatory, and all' expressions of opinion by the judge during the trial, in like manner with the admission of evidence made incompetent by statute, may be excepted to after the verdict.” But this does not mean the appellant can make the remarks of the judge the basis of exceptive assignment of error for the first time in his brief, as has been attempted in this case. Exceptions must appear in *487 the record, some as having been noted during the course of the trial and some, as in the case of an exception to the charge, as having been noted after verdict, but all must appear in the record and be preserved in the assignments of error. Yellowday v. Perkinson, 167 N. C., 144; Rawls v. R. R., 172 N. C., 211; Pleasants v. R. R., 95 N. C., 195; Lytle v. Lytle, 94 N. C., 522. The portion of the record containing the remarks of the judge of which the appellant complains in his brief is as follows: “By defendant’s counsel: I will state the basis of the objections. He stated the last time he saw her was on 29 October, 1933. “By the court: The doctor is an admitted medical expert, and he testified at that time she was suffering from senile dementia, and was crazy practically, and he was medical man enough to know whether that condition would change.” While, as aforesaid, there is no objection in the record to the remarks of the judge, we are of the opinion that the remarks, even if exception had been properly noted thereto, “should not be held for reversible error because, from the facts and attendant circumstances disclosed in the record, it appears that they . . . could have reasonably had no appreciable effect on the result.” S. v. Jones, 181 N. C., 546. Second assignment of error: Exception 8. This exception is abandoned in the appellant’s brief. Third and eighth assignments of error: Exceptions 9, 19, 20, 21, 22, 23, 24, and 25. These exceptions, according to appellant’s brief, present for the Court’s consideration two “interlocking questions,” namely, “(A) Was there sufficient evidence ... of undue influence, sufficient for that issue to go to the jury? (B) Was not his Honor’s charge couched in language so extreme and severe •. . . as to irremediably injure the defendants before the jury on all of the issues?” While the evidence of fraud and undue influence was largely if not entirely circumstantial, we are inclined to the opinion that it justified the submission of the second issue, but however this may be, the finding of the jury on the first issue that Annie Dancy Meeks did not have sufficient mental capacity to execute the will, and other documents, renders unnecessary any discussion of the assignments of error on the second issue, as it is well settled that the finding by the jury that an alleged testator did not have sufficient mental capacity to execute a will is sufficient to support a judgment for the caveator, irrespective of the issue of fraud or undue influence. In re Rawlings' Will, 170 N. C., 58. We have examined the charge and cannot agree that it is so biased as to be prejudicial to the appealing defendant. When read contextually and as a whole it is a correct statement of the evidence and a clear *488 declaration of the law arising thereon. The appellant did not request that any other or further contentions or instructions he given. Fourth assignment of error : Exceptions 10 and 11. These exceptions are abandoned in the brief of appellant. Fifth assignment of error: Exception 12. Appellant sought to elicit from the witness J. A. Norris, an attorney of Washington City, testimony relative to certain legal requirements in the probate of wills in the District of Columbia, and excepted to the court’s sustaining an objection to the question propounded to the witness. The exception is untenable, since it does not appear from the record what the answer of the witness would have been to the question to which objection was sustained. Newbern v. Hinton, 190 N. C., 108, and cases there cited. However, the information which the unanswered questions seem to indicate the defendant sought from the witness was subsequently given by the witness in his further examination. Sixth and seventh assignments of error: Exceptions 13, 14, 15, 17,- and 18. These exceptions present the inquiry (1) as to whether certain letters written by J. A. Norris to the Edgecombe Homestead and Loan Association and introduced by the plaintiffs were competent evidence, and, (2) if so, was it not competent for the appellant to have introduced in evidence copy of report of Dr. Whitby, psychiatrist, of his examination of Annie Dancy Meeks, which was enclosed in said letters? These letters tended to show that the will was executed one day (10 November, 1933), and the deed for land and transfer of stock and deposit the following day, and that J. A. Norris, the attorney who drew all of the papers and who had been called as a witness for the appellant, wrote, on 13 November, 1933, two or three days later, that he had been engaged by Annie Dancy Meeks to settle her business affairs, and that delivery of the stock certificates had been made to him, and that his client desired to cash them, and were competent as links in a chain of circumstances tending to show fraud and undue influence in the procurement of the signing of the paper writings involved, and to contradict certain phases of the testimony of Norris. The purported report of the psychiatrist, which appellant contends should have been admitted in evidence when offered by him, was enclosed, along with other documents, in one of the letters. While ordinarily when one portion of a letter, document, or conversation is introduced in evidence the opposing side may introduce any other portion thereof which is explanatory of the portion theretofore introduced, it does not follow that such letters, documents, or conversations in their entirety become competent simply because written or had at the same time, the remaining portions thereof must throw light upon or explain that portion which has been already introduced — a fortiori, an ex parte statement enclosed in a letter, and otherwise incompetent, would not become *489 competent unless it explained the letter in which it was enclosed. 10 R. C. L., pars. 101, 102, pp. 935-6. The purported report of the psychiatrist in no way explained the letter of Norris to the Homestead and Loan Association. The evidence in this case was in sharp conflict. It was admitted under proper rulings by the court and submitted to the jury under a fair and impartial charge. The issues were answered in favor of the plaintiffs. The judgment must be affirmed. No error.