
    In re Will of H. J. STAUB.
    (Filed 4 October, 1916.)
    1. Wills — Trials—Evidence—Questions for Jury.
    In an action to set aside a will for mental incapacity and undue influence, testimony of a witness which tends to contradict his former evidence favorable to the sufficient mental condition of the testator is competent, the truth of the matter being for the jury to determine, and it is also competent for him to testify from his own knowledge as to- the mental capacity of the testator to make the will.
    2. Trials — Evidence Stricken Out — Appeal and Error — Objections and Exceptions.
    Where testimony on the trial has been stricken out by the judge at appellant’s request, his exception as to its admission is without merit on appeal.
    3. Wills — Evidence—Contradictory Testimony — Undue Influence.
    In an action to set aside a will for mental incapacity, and undue influence, it is competent for propounder’s witness to state, on cross-examination, that the testator was at the time entirely under the dominion, direction, and control of a religious denomination which is the principal beneficiary under the will, and, as corroborative of substantive evidence of mental incapacity, the dependent condition of testator’s family.
    4. Wills — Mental Incapacity — Undue Influence — Unanswered Issue — Appeal and Error — Harmless Error.
    Where a will has been caveated for mental incapacity and undue influence, and under proper evidence and instructions the jury has answered the first in favor of the caveators and left the second unanswered, exceptions to the admissibility of testimony as to undue influence become immaterial; but in this case it was proper upon the element of mental incapacity.
    5. Wills — Mental Incapacity — Undue Influence — Trials—Evidence—Questions for Jury.
    In an action to caveat a will there was conflicting evidence of mental incapacity and undue influence; that the wife of the deceased was dependent, that liis daughter had supported the family except for a small portion of the deceased’s income from his property; that the testator devised only a small amount of personal property and $2,500 in real estate to his family, and $20,000 to the Christian Scientist Church, which dominated his actions and of which he was a member. Held, sufficient for the jury under proper instructions.
    6. Same — Instructions—Burden of Proof.
    The instructions given by the court to the jury in this action to caveat a will, defining the right of the testator to dispose of his property as he pleased, applying the various phases of tiñe testimony to the issues of mental incapacity and undue influence, defining the former, and placing the burden of proof on the caveator, are approved.
    Bkown, J., dissenting.
    
      Appeal by propounders from Whe.dbee, J., at May Term, 1916, of CRAVEN.
    
      Guión & Guión, D. L. Ward, and S. Brown Shepherd for propounders.
    
    
      Moore & Dunn for caveators.
    
   Clarx, 0. J.

Tbe caveat was filed upon tbe ground of insufficient mental capacity and undue influence. Tbe issue as to undue influence was not answered by tbe jury and tbe appeal depends solely on tbe finding tbat the deceased did not have mental capacity to make a will. Tbe first six exceptions are to testimony brought out upon cross-examination of tbe witnesses for tbe propounders, and cannot be sustained.

Tbe first exception is because tbe witness wbo bad testified favorably as to tbe mental condition of tbe deceased was asked as to contradictory statements made by himself prior to tbe trial. Tbis was competent.

Tbe second exception is without point, as tbe testimony objected to was stricken out by tbe court on- motion of tbe propounders.

Tbe third exception was to permitting tbe propounders’ witness to state on cross-examination tbat from bis experience and observation of tbe deceased be was entirely under tbe domination, direction, and control of tbe Christian Scientist people, wbo were tbe principal beneficiaries of tbe will. Tbis was competent on tbe third issue and also as tending to contradict tbis witness’s testimony as to tbe mental capacity of tbe deceased to make a will.

Tbe fourth exception is tbat tbe same witness stated on cross-examination tbat in bis judgment tbe deceased was crazy and of unsound mind when be signed tbe will. Tbis was competent, Clary v. Clary, 24 N. C., 78, and besides, because it was in direct contradiction of the testimony of tbis witness, wbo was a witness to tbe will and wbo bad stated on bis examination in chief tbat tbe deceased was of sound mental condition when be signed tbe will.

Tbe fifth exception was to tbe refusal to strike out tbat portion of tbis witness’s evidence on cross-examination because on reexamination tbe witness was of opinion tbat tbe deceased was of sound mind. Tbe witness having stated bis testimony differently, both phases of it should have been presented to tbe jury.

Tbe sixth exception, as to tbe dependent condition of tbe wife of tbe deceased, and her inability to take care of herself, was competent in corroboration of tbe evidence a.s to tbe mental incapacity of tbe defendant, since be devised tbe bulk of bis property to tbe Christian Scientist people, leaving bis wife and daughter, wbo bad supported him for so many years, practically destitute.

Tbe seventh exception was for tbe admission of tbe opinion of -the witness Mrs. Bell as to tbe condition of her father’s mind for a few years prior to bis death. The, eighth and ninth exceptions, as to the influence exerted by the propounders over the deceased, it is unnecessary to consider, since the jury did not pass upon the issue as to undue influence. If they considered this testimony at all, it could have been only from the light it threw upon the issue as to mental incapacity, and for that purpose it was competent.

The tenth and eleventh exceptions were to the testimony of the daughter of the deceased that she practically supported the family, and this was competent in corroboration as tending to show the unsound mental condition of the testator in devising his property away from his wife and daughters.

• The twelfth exception was to the testimony that the mind of the testator had become unsound and his conversation that of a monomaniac on the subject of Christian Science.

The prayer of the propounder.s to instruct the jury that the evidence was not sufficient to set the will aside was properly refused. The issue was one for the jury upon the whole evidence.

It was in evidence that the deceased did not support or provide for his family, and that his daughter paid the grocery bill and meat bill .and paid the rent, and that the other children contributed to their mother’s support. Though the deceased had an income of $50 per month, he contributed only $7 for the .support of the family. By his will he devised the small amount of personal property he had and $2,500 in real estate to his family and $20,000 to the Christian Science Church. There was evidence as to his sanity, both pro and con, and the jury upon proper instructions found that the deceased did not have sufficient mental capacity to make the will. This was a matter within the province of the jury, and we cannot disturb it.

The judge in a very full, clear, and impartial charge, to which no exception was taken, instructed the jury, among other things, as follows:

“The fact that a man gives his property other than to his relatives and their dependents' does not of itself vitiate his will, and any man who has testamentary capacity and is not unduly influenced to execute a will can give his property to any body or any one that he pleases; he can give it to individuals; he may give it to a person whom he never knew; he can give it all to a religious denomination, to any church, to any nonreligious society, to any charitable organization; he has the right to give it to one or more persons or objects to the exclusion of all others; but it is a circumstance a jury may consider in connection with other evidence in passing upon a man’s mental capacity; and if you find that he has testamentary capacity, and is not influenced unduly, he has the right to give his property to any one and anywhere; that it is not illegal and not contrary to public policy. You have no right to find as a fact that this is not the will of H. J. Staub because he gave bis property to tbe Cbristian Science Cburcb, if be bad tbe testamentary capacity and was not unduly influenced. He bad tbe right to give it wherever’he pleased, if be bad tbe testamentary capacity and was not unduly influenced.”

Tbe court gave tbe prayers for instruction asked by tbe appellants. Tbe court defined testamentary capacity: “A person has testamentary capacity within tbe meaning of tbe law if be.has a clear understanding of tbe nature and extent of bis act, of tbe kind and value of tbe property devised, of tbe persons who are tbe natural objects of bis bounty, and of tbe manner in which be desires to dispose of property to be distributed”; and, further: “Tbe law presumes that every man possesses mental and testamentary capacity, and be or they who allege that be does not possess such testamentary capacity, upon them tbe law throws tbe burden of proof to offer evidence that satisfies tbe jury of tbe absence or tbe lack of tbe possession of such mental or testamentary capacity,” and that tbe burden was upon tbe caveators to show that tbe testator did not possess such mental capacity, adding that if tbe jury find that issue in tbe affirmative it need not pass upon tbe third' issue as to undue influence.

Upon review of tbe whole ease we find

No error.

BROWN, J.,

dissenting: I cannot agree with tbe majority of my brethren that no reversible error was committed on tbe trial of this case. This is one of those cases which naturally appeals to tbe sympathy of a jury, and they are naturally prone to set the will aside. Therefore, I think this Court should be very careful to see that no substantial injustice has been done to tbe propounders on tbe trial.

Upon carefully reading tbe record, I think that some of tbe assignments of error should be sustained and a new trial ordered, and I will briefly call attention to one or two of them.

Tbe following questions and answers were permitted by tbe court over tbe propounders’ objection:

Tbe witness Cook was asked, “When you beard what that paper contained, after that, did you state that in your opinion Mr. Staub did not have bis right mind when be made that paper ?” Answer: “I. said that if I thought I bad done a thing like that, or another man did that, be was not treating bis family right, and be must be crazy.”

To my mind, this question and answer are plainly incompetent. Tbe ■witness Cook was permitted to give bis opinion of tbe character of tbe will and of tbe propriety and justness of tbe disposition which tbe testator bad made of bis property. He was permitted to say substantially that any man who would make such a will must be crazy. It is common learning that it is not for tbe witness to give bis opinion of tbe character of tbe will nor tbe wisdom and justice of tbe disposition of tbe property. That is a matter to be considered by tbe jury as a circumstance. In this case tbe witness is permitted to put bimsélf in tbe place of tbe jury and to pass on tbe weight of that species of evidence. This witness occupied a position which gave him peculiar weight with tbe jury. He was a witness to tbe will, consequently, not tbe witness of either party, but tbe witness of tbe law, and what be states is calculated to have more weight with tbe jury than that of an ordinary witness.

Tbe witness was further asked: “From your experience and observation of him, is it not a fact, in your opinion, that be was entirely under tbe domination, direction, and control of tbe Christian Science people?” Answer: “Yes, sir.” It is true that tbe issue as to undue influence was not answered, but this testimony was well calculated to prejudice tbe loropounders as to tbe issue of mental capacity and to create in tbe minds of tbe jury a hostile feeling. It is not competent for a witness to give bis opinion as to whether an individual is dominated by a church or any other society, religious or otherwise. It is a matter for tbe jury to pass on, taking into consideration all tbe evidence and surrounding circumstances. Tbe very reason that tbe jury is impaneled is to pass on tbe condition of tbe mind of tbe testator, and it is not for tbe non-expert witness to give bis opinion as to what effect certain surroundings would have upon that mind. Tbe witness may give bis opinion as to whether a man at a certain time was sane or insane, but be cannot give bis opinion upon tbe sufficiency of certain surroundings and conditions to produce that condition of mind.  