Matter of Will of Simmons

258 S.E.2d 466 (1979)

43 N.C. App. 123

In the Matter of the WILL of Glenn Edison SIMMONS, Deceased.

No. 7825SC1044.

Court of Appeals of North Carolina.

October 2, 1979.

*469 Gaither & Gorham, by James M. Gaither, Jr., and J. Samuel Gorham, III, Hickory, for caveators-appellants.

Corne & Pitts by Larry W. Pitts and Stanley J. Corne, Newton, for propounders-appellees.

HEDRICK, Judge.

By various assignments of error, based on numerous exceptions noted in the record, caveators attack the admission of certain testimony of the witnesses Pitts, Townsend and Hedrick. Caveators argue that their testimony was hearsay and in violation of the "Dead Man's" statute, G.S. § 8-51. They contend that the hearsay rule operates *470 to exclude certain of this testimony because such testimony was offered solely to prove the truth of declarations made by decedent before and after execution of the purported will. Furthermore, caveators assert that the provisions of G.S. § 8-51 prohibiting an interested party from testifying in his own behalf and against the estate "concerning a personal transaction or communication between the witness and the deceased person" compel the exclusion of the challenged testimony.

With respect to the testimony of Pitts, the attorney who prepared the "paper writing" in question, we are of the opinion that his testimony regarding transactions and communications with the deceased was properly admitted for the reasons that (1) he is not an "interested witness' within the meaning of G.S. § 8-51; Hall v. Holloman, 136 N.C. 34, 48 S.E. 515 (1904); Propst v. Fisher, 104 N.C. 214, 10 S.E. 295 (1889); and (2) his testimony was not hearsay because it was offered "mostly for the purpose of showing the basis for his opinion that [testator] at the crucial time in question had the mental capacity to execute a will." In re Will of Ricks, 292 N.C. 28, 42, 231 S.E.2d 856, 866 (1977).

Similarly, caveators contend that certain testimony of the witness Townsend was incompetent because it was either hearsay, or in violation of G.S. § 8-51, or both. At the outset, we point out that Townsend was offered as a witness by caveators who now challenge two particular instances of testimony elicited from her on cross-examination. First, caveators attack the action of the trial judge in allowing Townsend to testify as to the reason that the deceased requested a "no visitors" sign for his hospital door. It appears from the record that caveators had asked Townsend on direct examination about the sign, and she answered that she was not responsible for having it placed on the door. Later, on cross-examination, she testified, without objection, "I had nothing to do with the no visitor sign being placed on Glenn's hospital door. Glenn himself requested the sign." When asked why the decedent so requested, caveators objected and excepted to the overruling of their objection. Thus, Townsend was allowed to state: "Hattie was getting on his [nerves] and he had gotten tired of her making repeated statements, that she was his legal wife and he felt that she was no longer his legal wife."

While the entire matter of the "no visitors" sign might have been irrelevant, since the caveators first raised the question of the sign, and since the witness was allowed, without objection, to testify on cross examination that the sign was put there at the deceased's request, we find no error in the witness' being permitted to explain how she reached this opinion. Assuming arguendo, that the Court erred in allowing the testimony, no conceivable prejudice could have resulted to the caveators since the deceased's attitude toward his wife was manifest in all of the testimony.

Secondly, caveators assert that the court erred in allowing Townsend to testify that the deceased gave "accurate" responses to questions at the social security office regarding the preparation of an affidavit legitimating Townsend's children. Responding to questions on cross examination, Townsend in substance stated that the deceased's responses were accurate according to her personal knowledge. It is settled that the prohibitions of G.S. § 8-51 do not prevent a witness from testifying as to the acts and conduct of the deceased where the witness is merely an observer and is testifying to facts based upon independent knowledge. In re Will of Bowling, 150 N.C. 507, 64 S.E. 368 (1909); March v. Verble, 79 N.C. 19 (1878); 1 Stansbury's N.C. Evidence, Witnesses § 73 (Brandis rev.1973). Townsend's characterization of the responses as accurate was obviously based on independent facts known to her otherwise than through personal transactions or communications with the deceased. Thus, this assignment of error is without merit.

Caveators' eighteenth and nineteenth assignments of error, based on a number of exceptions duly noted in the record, relate to the testimony of Margie Hedrick, who was also offered as a witness by the caveators, *471 and who testified on direct examination that she had worked for deceased as his bookkeeper and accountant for approximately fifteen years; that she had advised him on business matters many times, but that she did not advise him on personal matters; that she was named executrix under the "paper writing" in question; that she had driven Mr. Simmons to Pitts' office and back home on the day the purported will was prepared; and that she had gone over part of the completed will with the deceased before he executed it. Based on these exceptions, caveators argue that the court erred in allowing the witness on cross examination to testify as to specific conversations she overheard between Pitts and Mr. Simmons when she accompanied him to the former's office for the preparation of the will in question. Caveators further contend that the court erred not giving a limiting instruction to the jury with respect to such testimony.

We have carefully examined each exception upon which these contentions are based and find them to be without merit. The witness was offered by the caveators, and all the testimony challenged by these exceptions was fair cross-examination. Moreover, we note that the gist of the "objectionable" testimony concerned personal observations of the deceased by the witness Hedrick rather than "personal transactions or communications" with him. She was merely an observer of, and not a participant in, the conduct she described, and such testimony was clearly admissible. In re Will of Bowling, supra; see also Hodges v. Hodges, 257 N.C. 774, 127 S.E.2d 567 (1962).

Furthermore, even assuming that the testimony was competent only for the limited purpose of showing a basis for Hedrick's opinion as to the deceased's testamentary capacity, In re Will of Ricks, supra, since the caveators did not request a limiting instruction, In re Will of Thompson, 248 N.C. 588, 104 S.E.2d 280 (1958); In re Will of Hinton, 180 N.C. 206, 104 S.E. 341 (1920), under the circumstances of this case we find no error in the trial judge's failure to give a limiting instruction with respect to the testimony challenged by these exceptions.

Based on assignments of error numbers 3, 19, and 28, caveators next assert that the court erred

by admitting testimony of propounders' witnesses without giving instructions limiting the consideration thereof by the jury to the issue of mental condition, while voluntarily giving such limiting instructions to testimony by caveators' witnesses, and then instructing in his charge that the limiting instructions applied only to testimony of heirs of Glenn Simmons.

As pointed out above, caveators did not request a limiting instruction with respect to the testimony of any of the witnesses who testified that, in their opinion, deceased had testamentary capacity. In our opinion, no prejudicial error was committed by the court in failing to give a limiting instruction with respect to the testimony of Pitts, Townsend, or Hedrick, for the reason that no request for such instruction was made. In re Will of Thompson, supra; In re Will of Hinton, supra; see also In re Will of Kestler, 228 N.C. 215, 44 S.E.2d 867 (1947).

Neither do we find prejudicial error with respect to the limiting instruction given in the charge. The trial judge instructed the jury that when

heirs of Glenn Edison Simmons have testified concerning the personal transactions and communications between that class of witness and Mr. Simmons, it is admitted in evidence and is competent only for the limited purpose of showing the basis of their opinion in respect to his mental capacity on the date and at the times they specified. . . .

In their brief caveators argue that the use of the word "heirs" in this instruction allowed the jury to give "unlimited consideration" to the testimony of Pitts and Hedrick, and to "take the instruction to mean that the rule did not apply to Ruth Townsend."

We do not agree. The challenged instruction has no application to the witness *472 Pitts, since he was not an "interested witness" within the meaning of G.S. § 8-51. In re Will of Ricks, supra; Propst v. Fisher, supra; see also In re Will of Brown, 203 N.C. 347, 166 S.E. 72 (1932). Likewise, the challenged instruction has no application to the witness Hedrick since, even assuming that she was an "interested witness" within the meaning of G.S. § 8-51 because she was the designated executrix under the "paper writing" at issue, Whiteside v. Green, 64 N.C. 307 (1870), 1 Stansbury's N.C. Evidence, Witnesses § 68 (Brandis rev.1973), she did not testify as to any "personal transaction" with the deceased. She testified as to her personal observations of certain of his conduct. In re Will of Bowling, supra.

Finally, the limiting instruction has no application to the testimony of Townsend since that portion of her testimony challenged by the caveators likewise did not relate to "personal transactions" with the deceased in violation of G.S. § 8-51. Id.

We therefore, hold that the Court's charge with respect to the limiting instruction was free from prejudicial error.

By assignments of error numbers 25, 26, 29 and 30, based on seven exceptions duly noted, caveators attack that portion of the court's charge instructing the jury and applying the law with respect to testamentary capacity and undue influence. Suffice it to say that we have carefully examined each exception upon which these assignments of error are based and find them to be without merit.

Caveators' assignments of error numbers 12 and 21, based on eight exceptions, attack the court's instructions limiting certain testimony of caveators' witnesses regarding conversations with the deceased to the issue of mental capacity. They argue that the court's use of the expression "mental capacity" precluded the jury from also considering this testimony on the issue of undue influence. According to the caveators, their evidence of conversations with the deceased showing that he was in a weakened physical state and had trouble eating; that he "could not see hardly to drive after it turned dark"; that his memory sometimes failed him; and that his mental condition had deteriorated, was competent evidence on the issue of deceased's susceptibility to undue influence, as well as mental capacity, and the jury should have been instructed accordingly. While such evidence may be pertinent to the issue of undue influence, In re Will of Hinton, supra, where there is a total absence of "other facts and circumstances tending to show that he was unable to exercise his will freely and intelligently," Id. 180 N.C. at 216, 104 S.E. at 346, there is no evidence of undue influence. In re Will of Ball, 225 N.C. 91, 33 S.E.2d 619 (1945). Evidence of mental or physical condition, standing alone, is not sufficient to raise the issue.

We have carefully examined the record in this case and find it devoid of any independent evidence of undue influence. Thus, we find no error in the limiting instruction complained of. Caveators got the benefit of this testimony under proper instructions. See In re Will of Hall, 252 N.C. 70, 113 S.E.2d 1 (1960).

Caveators, by assignment of error number 23, assert that the court erred to their prejudice by "allowing propounders to open and close the arguments to the jury when propounders were allowed to put on substantive proof of mental capacity and lack of undue influence at the probate in solemn form [stage] of the trial." It has long been established in this State that the trial upon a caveat is a proceeding in rem to which there are, strictly speaking, no parties. Syme v. Broughton, 85 N.C. 367 (1881). And, even when, as here, caveators admit the due execution of the purported will, leaving only the issues of mental capacity and undue influence to be tried, propounders still have the privilege of opening and concluding the case for reasons well stated in Syme v. Broughton, supra at 369-70:

The inquiry is . . . whether the paper propounded is his will or not. Both parties, the propounders and caveators, are actors for this purpose. The subscribing *473 witnesses are the witnesses of the law, and when the will is once propounded, it is under the control and power of the court. . . . [T]he caveators have no . . . control or power . . . to admit the execution of the will so as to dispense with the proof required . . . for the law is explicit that a written will with witnesses can only be proved by the oath of at least two subscribing witnesses. ..... It follows, if the will must be proved by the subscribing witnesses, that the burden is upon the propounder, and he would have the privilege of opening and concluding. And when the will has been prima facie established . . . if the caveators should seek to defeat the will by proving the insanity of the deceased, the burden would be shifted to them, but that would not take from the propounder the right to open and conclude the argument. McRae v. Lawrence, 75 N.C. 289. [Emphasis in original.]

This assignment of error has no merit.

Caveators undertake to bring forward and argue additional assignments of error based on numerous exceptions. We have carefully examined these additional assignments of error and find them to be repetitive, inconsequential, and wholly without merit. No useful purpose would be served by further elaboration on the well-settled principles discussed under these assignments. We conclude that all parties to this litigation have had a fair trial, and the jury has rendered its verdict.

No error.

ROBERT M. MARTIN and WEBB, JJ., concur.