In Re Will of Cauble

158 S.E.2d 796 (1968)

272 N.C. 706

In the Matter of the WILL of Mamie E. CAUBLE, Deceased.

No. 528.

Supreme Court of North Carolina.

February 2, 1968.

*798 Patterson & Doby, by Henry C. Doby, Jr., Staton P. Williams, Albemarle, for caveators.

Eugene S. Tanner, Jr., Albemarle, Guardian Ad Litem for Jack Monroe Cauble and Trill Elaine Cauble.

D. D. Smith, Albemarle, for propounders.

HIGGINS, Justice.

The Caveators discuss three questions in their brief as arising on this appeal. First, they assign as error the failure of the Court to sustain their objections to the evidence, especially of the witnesses Roland and Teeter, Exceptions No. 4, 7 and 8. Their evidence had bearing on the mental capacity of Mrs. Cauble at the very time she executed the will. The form of the questions asked these and other witnesses, and their answers, have been approved by this Court. In re Will of Jones, 267 N.C. 48, 147 S.E.2d 607; In re Will of Tatum, 233 N.C. 723, 65 S.E.2d 351. This Court said, in In re Will of Brown, 203 N.C. 347, at 350, 166 S.E. 72, at 74:

"Any one who has observed another, or conversed with him, or had dealings with him, and a reasonable opportunity, based thereon, of forming an opinion, satisfactory to himself, as to the mental condition of such person, is permitted to give his opinion in evidence upon the issue of mental capacity, although the witness be not a psychiatrist or expert in mental disorders. White v. Hines, 182 N.C. 275, 109 S.E. 31."

Second, the appellants object to the charge on the ground the Court did not make clear that if, at the time she signed the writing on March 21, 1964, the jury should find that Mrs. Cauble was lacking in any essential requirement of mental capacity, the jury in that event should answer the second issue no. The Court actually charged:

"Now, members of the jury, the court instructs you on this second issue that it is the Propounders contention that you should answer this second issue `Yes.' It is the Caveators contention that you should answer it `No.' And the Court instructs you that if the Caveators have satisfied you by the greater weight of the evidence that Mamie E. Cauble on the 21st day of March, 1964, did not have mental capacity to know and comprehend the nature and extent of her property, or did not have mental capacity to know and comprehend the natural objects of her bounty, or did not have mental capacity to know and comprehend and realize the full force and effect of the *799 disposition of her property by will, then it will be your duty to answer the second issue `No.' Otherwise, it will be your duty to answer the second issue `Yes.'"

The charge as given was as favorable to the Caveators as the law permitted. The appellants' challenge on the ground stated is not sustained. In re Will of Knight, 250 N.C. 634, 109 S.E.2d 470; In re Will of Crawford, 246 N.C. 322, 98 S.E.2d 29; In re Will of Efird, 195 N.C. 76, 141 S.E. 460.

By the third objection, the appellants challenge as error the failure of the Court to set aside the verdict as against the greater weight of the evidence. This objection is formal and is not sustained.

No Error.