Bissett v. . Bailey

Walxer, J., after stating the case: The testimony offered by the plaintiffs as to the mental capacity of Mrs. Bailey, the grantor in the deed, was competent and material, and it was error to exclude it. We were informed at the hearing that the ruling was based on the ground that the proposed evidence involved the stating of a transaction or communication between the witnesses, who were parties to the action, and the deceased, but we do not think it does have that effect, in the true sense of the law, which generally excludes such transactions and communications. "We recently said, in the case of In re Chrisman’s Will, *46 175 N. C., 420: “This Court has held in McLeary v. Norment, 84 N. C., 235, and more recently in Rakestraw v. Pratt, 160 N. C., 437, that in an action to set aside a deed or will on the ground of mental incapacity of the maker or testator at the time of their execution, it is comqietent for a witness, after testifying as to his opinion that the maker or testator was mentally incompetent at the time of the execution of the deed or will, to further testify as to such communications or conversations he had had with him upon which his opinion was founded; and as to such the provisions of Revisal, sec. 1631, prohibiting evidence of transactions with a deceased person, do not apply.” It was held, though, in that case, that the rule did not apply when the validity of the will was assailed for undue influence, when the question involved a transaction or communication with the deceased (175 N. C., 422), citing Hathaway v. Hathaway, 91 N. C., 139; Lineberger v. Lineberger, 143 N. C., 229, and Bunn v. Todd, 107 N. C., 266. But this is not very material here, as the rejected evidence related only to the mental condition of the testatrix. This Court held many years ago that such proof was not within the inhibition of C. C. P., sec. 343 (Battle’s Revisal, sec. 343; Code, sec. 590; Revisal of 1905, sec. 1, 1631). It was there said (McLeary v. Norment, 84 N. C., 235, at 238) : “The conversation offered was not to prove any fact stated or implied, but the mental condition of the plaintiff, as declarations are received to show the presence of disease in the physical system. How, except through observation of the acts and utterances of a person, can you arrive at a knowledge of his health of body and mind ? As sanity is ascertained from sensible and sane acts and expressions, so may and must conclusions of unsoundness be reached by the same means and the same evidence. The declarations are not received to show the truth of the things declared, but as evidence ■of a disordered intellect, of which they are the outward manifestations. The admissibility of the witness’ opinion, resting, as it necessarily must, upon past opportunities of observing one’s conduct, requires, in order to a correct estimate of the value of the opinion, an inquiry into the facts •and circumstances from which it has been formed. There seems to be no sufficient reason for receiving the opinion and excluding proof of the facts upon which it is founded.” It was upon the ruling in that case that this Court has rested all of its decisions on this question. It was there further said by the Court, following McCanless v. Reynolds, 74 N. C., 301, that the principle upon which is based the exclusion of such transactions and communications as are described in Revisal, sec. 1631, is ■that, unless both parties can be heard, it is best to hear neither, because it is not only unfair and unjust to do so, but it would afford an easy opportunity, and a great temptation, to commit perjury. Smith, C. J., said, in the McLeary case, that “The proposition presupposes an admis *47 sion, or a statement from wbicb an admission may be inferred, injurious to tbe deceased or lunatic, and it is disallowed because the party is unable to give his version of the matter.” But this, he argues, does not apply merely to actions or conduct of the deceased, or his or her transactions or communications with the witness which do not tend to fix the deceased with liability or to discharge her from it, but merely indicates the state of the mind or faculties. The final conclusion was that conversations and transactions mentioned in the Code, of which a living-witness is not permitted to testify when the other party to it is dead, insane, or lunatic, and unable to give his version of them, do not, in our construction of the language and purposes of the law, embrace such evidence as was here offered and rejected, and is outside the mischief intended to be remedied. The case of Brown v. Adams, 174 N. C., 490, is not like this case, for there the attempt was to prove a conversation of the deceased for the purpose of fixing liability upon Mr. Adams’s estate, when he, of course, and those claiming under him after his death had no opportunity to confront the witness with his testimony or that of any other witness. That is the very case described by Chief Justice Smith in McLeary v. Norment, supra, where he attempts to make clear the distinction between it and a case like this one, where the object merely is to show the mental condition and not the truth of the deceased’s declarations. Brown v. Adams related to the terms of a contract, and was not remotely connected with the state of Mr. Adams’s mind or his physical condition. It follows that there must be another trial because of the error in excluding this testimony, which was competent. But we may properly add that in the questions asked and the answers that would have been given if permitted by the court, we do not see any reference to transactions and communications with the deceased. The opinions of the witnesses may have been derived from other sources. The testimony as to the administration of morphine and chloroform was also improperly excluded. With the evidence of the medical expert, it tended to show the weakened state of the testator’s mind and was some proof of mental derangement and incapacity. New trial.