In Re the Will of Lomax

Winborne, J. The main points assigned as error by propounders on this appeal are substantially these: 1. In permitting lay witnesses to express opinion that Maggie Nipson Lomax did not have sufficient mental capacity to make a will. 2. In charging the jury as indicated in foregoing statement of the facts. As to the first, this question was the question for decision, and decided on the first appeal in this case—224 N. C., 459, 31 S. E. (2d), 369, and for which the first new trial was then ordered. It is there said, in part, that “Capacity to make a will is not a simple question of fact. It is a conclusion which the law draws from certain facts as premises. . . . Hence the witness must state the facts gained from personal observation as a predicate for the expression of his opinion. . . . Failure to observe this rule, in the admissions of the evidence elicited by the questions objected to in the case at bar, has, we think, prejudiced the propounder’s cause. Several nonexpert witnesses were permitted to say that decedent at the time of executing the paper writing propounded did not have mental capacity to make a will, apparently without understanding what degree of mental capacity was necessary to constitute legal competency.” In the present casé the errors are (1) in refusing to strike the answer of the lay witness expressing .the opinion that Maggie Nipson Lomax did not have sufficient mental capacity to make a will, which was not responsive to the question asked, and (2) in overruling objection to the question asked by the court: “Did she have mentality sufficient to make a will ?” by which a negative answer was elicited. Now as to the charge: While the court had theretofore told the jury that “greater weight of the evidence” relates to the credibility of evidence offered, and not to the quantity of it, the portions to which excep- *595 tiou is taken may tend to confusion in that, the explanation of what is meant by the clause “where the burden is on the caveators to satisfy you by the greater weight of evidence,” requires that they offer “more evidence, however slight it may be, than the propounders have offered.” To this caveators alone, upon adverse verdict, might have complained. But the court went further and instructed the jury that “the same rule applies to the propounder Quick and others, where the court puts the burden on them, etc.” However, upon the admissions of caveators, and the fact that the answer to the fourth issue follows as a matter of law the answers to the second, or to the second and third issues, as the case may be, burden of proof of which was on caveators, there was no burden of proof on propounders. Therefore, the second portion of the instruction tended to and may have confused the jury. In conclusion let it be noted that much of the argument in this Court by propounders is devoted to the probative value of testimony offered on the trial in Superior Court. This is a matter only for the jury. And though it becomes necessary on this appeal to order a new, and fourth trial, we may not, and do not express or even intimate an opinion on the facts. However, as there are rules by which the trial of such cases is to be governed, the losers, whoever they may be finally, must lose only when the record of the trial shows that, in all material aspects, it was conducted in accordance with the rules. Hence, for prejudicial error in calling the plays, so to speak, and for this reason alone, there must be a New trial.