Peterson v. Finger

PHILLIPS, Judge. Plaintiff appellants make only two contentions, the first being that the trial judge erred in permitting the defendant to testify over their objections as to certain conversations that she had with plaintiff Artie Lee Peterson before the contested deed was executed. The objections were based on Rule 601(c), N.C. Evidence Code, which recodified the so-called “Dead Man’s Statute,” G.S. 8-51, and the fact that defendant’s claim is adverse to that of the plaintiff Artie Lee Peterson, an adjudged lunatic. The testimony objected to was to the effect that on several different occasions before the August 1983 deed was executed Artie Lee Peterson told her that since the deed given her brother contained no restriction the plaintiffs were going to make things equal between the two by deeding her the life estate in the lot. Under the record in this case the testimony was not barred by the Dead Man’s Statute for three reasons. First, the rule plaintiffs rely upon expressly provides that an interested person is not prevented from testifying to an oral communication with a decedent or lunatic when the executor, administrator, or guardian testifies in his own behalf regarding the subject matter of the oral communication, or when evidence of the subject matter of the oral communication is offered by the executor, administrator or guardian, Rule 601(c)(l)(3), and the record shows that the guardian, Joseph Higgins, a witness for his ward and the other plaintiff, testified that his ward when competent told him the very same thing defendant testified to: that plaintiffs were going to treat defendant equally with him by deeding her the life estate. Second, even if receiving the evidence was error it was not prejudicial, as [745] substantially the same evidence was received without objection from the attorney who prepared the disputed deed. 1 Strong’s N.C. Index 3d, Appeal and Error Sec. 48.1 (1976). And third, our law permits an interested party to testify to oral communications with a decedent or lunatic when, as here, the decedent’s or lunatic’s mental capacity is in issue, the interested party expresses an opinion thereon, and the basis for the opinion includes the communications and personal transactions testified to. Whitley v. Redden, 276 N.C. 263, 171 S.E. 2d 894 (1970); Bissett v. Bailey, 176 N.C. 43, 96 S.E. 648 (1918). In this case defendant’s opinion was partially based upon the conversations referred to, which tended to show that Artie Lee Peterson thought logically, understood what she was about, and was able to act upon her thoughts. That the testimony also tended to show the grantor’s intention or state of mind did not make it inadmissible for its proper purpose, though plaintiffs could have had the evidence limited to that purpose if they had so requested. In re Will of Ricks, 292 N.C. 28, 231 S.E. 2d 856 (1977). Plaintiffs’ other contention is that the court erred in permitting the lay witness, Jack Finger, to testify that in his opinion Artie Lee Peterson was mentally competent on 11 August 1983 because he did not testify that he saw her on that date. In re Will of Cromartie, 64 N.C. App. 115, 306 S.E. 2d 853 (1983). But the witness testified that he saw her often and saw her “on or about” the date stated, which was foundation enough for the opinion. No error. Judges Martin and Parker concur.