{ "id": 8524062, "name": "PEGGY JOYCE SMITH CAUDILL, Individually, and HAROLD J. SMITH, JR., as Executor of the Estate of Kitty Smith Noecker, Plaintiffs v. GLADYS KINSEY SMITH, Individually, and as the Administratrix of the Estate of Thomas K. Smith, Defendants", "name_abbreviation": "Caudill v. Smith", "decision_date": "1994-11-15", "docket_number": "No. 934SC1293", "first_page": "64", "last_page": "71", "citations": [ { "type": "official", "cite": "117 N.C. App. 64" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "75 ALR Fed 170", "category": "reporters:federal", "reporter": "A.L.R. Fed.", "opinion_index": -1 }, { "cite": "323 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "379" } ], "opinion_index": 0 }, { "cite": "71 N.C. App. 714", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526280 ], "year": 1984, "pin_cites": [ { "page": "717" } ], "opinion_index": 0, "case_paths": [ "/nc-app/71/0714-01" ] }, { "cite": "173 S.E. 577", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1934, "pin_cites": [ { "page": "579-580" } ], "opinion_index": 0 }, { "cite": "206 N.C. 307", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630027 ], "year": 1934, "pin_cites": [ { "page": "312" } ], "opinion_index": 0, "case_paths": [ "/nc/206/0307-01" ] }, { "cite": "367 S.E.2d 913", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 112", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518536, 2514313, 2517226, 2516555, 2516126 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0112-02", "/nc/322/0112-01", "/nc/322/0112-03", "/nc/322/0112-05", "/nc/322/0112-04" ] }, { "cite": "362 S.E.2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1987, "pin_cites": [ { "page": "599" }, { "page": "599-600" }, { "page": "600" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 32", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8357742 ], "year": 1987, "pin_cites": [ { "page": "39" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0032-01" ] }, { "cite": "231 S.E.2d 856", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "863" } ], "opinion_index": 0 }, { "cite": "292 N.C. 28", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567285 ], "year": 1977, "pin_cites": [ { "page": "37" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0028-01" ] }, { "cite": "33 S.E.2d 619", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1945, "pin_cites": [ { "page": "622" } ], "opinion_index": 0 }, { "cite": "225 N.C. 91", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8600617 ], "year": 1945, "opinion_index": 0, "case_paths": [ "/nc/225/0091-01" ] }, { "cite": "68 S.E. 924", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1910, "pin_cites": [ { "page": "925" } ], "opinion_index": 0 }, { "cite": "153 N.C. 83", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271376 ], "year": 1910, "pin_cites": [ { "page": "87" } ], "opinion_index": 0, "case_paths": [ "/nc/153/0083-01" ] }, { "cite": "179 S.E. 332", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1935, "pin_cites": [ { "page": "333" } ], "opinion_index": 0 }, { "cite": "208 N.C. 130", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8597078 ], "year": 1935, "pin_cites": [ { "page": "131" } ], "opinion_index": 0, "case_paths": [ "/nc/208/0130-01" ] }, { "cite": "309 S.E.2d 243", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1983, "pin_cites": [ { "page": "245", "parenthetical": "quoting In re Will of Turnage, 208 N.C. 130, 131, 179 S.E. 332, 333 (1935)" }, { "page": "245" }, { "page": "246" }, { "page": "246" }, { "page": "245" } ], "opinion_index": 0 }, { "cite": "309 N.C. 753", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4769484 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "756", "parenthetical": "quoting In re Will of Turnage, 208 N.C. 130, 131, 179 S.E. 332, 333 (1935)" }, { "page": "758" }, { "page": "756-757" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0753-01" ] } ], "analysis": { "cardinality": 732, "char_count": 16242, "ocr_confidence": 0.734, "pagerank": { "raw": 4.0017338609573687e-07, "percentile": 0.9058253975424823 }, "sha256": "ac3a32e28c377190bd02ce4920b6ef1e6ac4d6691f9dfdb2f5a872a0f8836da3", "simhash": "1:8714c5ac6ec8ecbc", "word_count": 2693 }, "last_updated": "2023-07-14T20:31:41.091249+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and GREENE concur." ], "parties": [ "PEGGY JOYCE SMITH CAUDILL, Individually, and HAROLD J. SMITH, JR., as Executor of the Estate of Kitty Smith Noecker, Plaintiffs v. GLADYS KINSEY SMITH, Individually, and as the Administratrix of the Estate of Thomas K. Smith, Defendants" ], "opinions": [ { "text": "LEWIS, Judge.\nKitty Smith Noecker commenced this action to have declared void a deed in which she transferred real property to her brother, Thomas K. Smith. After the filing of the complaint, but before trial, both parties died and the substitutions named above were made. For purposes of this opinion, Kitty Smith Noecker will be referred to as \u201cplaintiff,\u201d and Thomas K. Smith will be referred to as \u201cdefendant.\u201d The jury found that the deed was executed as a result of the undue influence of defendant, and judgment was entered for plaintiff. From the judgment, defendant appeals.\nI.\nDefendant\u2019s first contention on appeal is that the trial court erred in denying his motions for directed verdict and judgment notwithstanding the verdict, because there was insufficient evidence of undue influence to go to the jury.\nTo prove undue influence in the execution of a document, a party must show that something operated upon the mind of the person allegedly unduly influenced which had a\ncontrolling effect sufficient to destroy the person\u2019s free agency and to render the instrument not properly an expression of the person\u2019s wishes, but rather the expression of the wishes of another or others. \u201cIt is the substitution of the mind of the person exercising the influence for the mind of the [person executing the instrument], causing him to make [the instrument] which he otherwise would not have made.\u201d\nHardee v. Hardee, 309 N.C. 753, 756, 309 S.E.2d 243, 245 (1983) (quoting In re Will of Turnage, 208 N.C. 130, 131, 179 S.E. 332, 333 (1935)). While there is no test by which the sufficiency of the evidence of undue influence can be measured with mathematical certainty, several factors have been identified as bearing on the question, including:\n1. Old age and physical and mental weakness of the person executing the instrument.\n2. That the person signing the paper is in the home of the beneficiary and subject to his constant association and supervision.\n3. That others have little or no opportunity to see him.\n4. That the instrument is different and revokes a prior instrument.\n5. That it is made in favor of one with whom there are no ties of blood.\n6. That it disinherits the natural objects of his bounty.\n7. That the beneficiary has procured its execution.\nId. at 756-57, 309 S.E.2d at 245. Finally, we note that \u201c \u2018[u]ndue influence is generally proved by a number of facts, each one of which standing alone may be of little weight, but taken collectively may satisfy a rational mind of its existence.\u2019 \u201d Id. at 757, 309 S.E.2d at 246 (quoting In re Will of Everett, 153 N.C. 83, 87, 68 S.E. 924, 925 (1910)).\nIn the present case, the evidence supporting plaintiffs claim tended to show that on 5 November 1990 plaintiff, then aged 90, conveyed to defendant by gift deed a remainder interest in three tracts of real property located in Duplin County, reserving a life estate for herself. In the absence of the deed, the property would have been disposed of pursuant to plaintiffs will, which was executed on 11 June 1986. Under the will, the property would have gone to defendant for life, with the remainder in fee to Peggy Caudill, plaintiffs niece.\nAt the time the gift deed was executed, plaintiff had suffered three strokes and was confined to a wheelchair. Her eyesight was poor, and she needed help from her live-in attendant, Magdalene Smith (hereinafter \u201cSmith\u201d), in order to read her mail and other papers. In 1987, plaintiff had begun having episodes of hallucinations and confusion. In September and October 1990, plaintiff was confused and at times did not recognize family members. During October 1990, defendant visited with plaintiff at her house about two or three times a week.\nOn 30 October, Smith drove plaintiff to Attorney William Allen\u2019s office at the direction of defendant. There, plaintiff executed a power of attorney, naming defendant as her sole attorney-in-fact. Smith testified that at Allen\u2019s office, defendant told her that anybody could talk plaintiff into anything and he was tired of it and wanted it changed. Smith also testified that defendant had been upset with a previous power of attorney which had named him and another individual as attorneys-in-fact. Christine Williams, a friend of plaintiff, testified that on 5 October, she and plaintiff discussed defendant\u2019s authority as attorney-in-fact, and that plaintiff expressed her displeasure with the arrangement. Plaintiff told her that defendant was making her sign five blank checks at a time and that \u201csome of them were coming through her bank statement that she didn\u2019t know anything about.\u201d Plaintiff told Williams that she did not want anyone \u201cmessing with [her] checks,\u201d that defendant could not \u201ckeep his fingers out of [her] business,\u201d and that defendant was \u201cworrying a four letter word out of [her].\u201d\nRegarding plaintiff\u2019s will, Smith testified that she overheard a conversation between plaintiff and defendant in October of 1990. Defendant told plaintiff that \u201che knew about her will and he didn\u2019t like it the way it was, . . . and he didn\u2019t have nothing to even show he was going to get anything.\u201d He stated, \u201cI want something \u2014 I want you to sign something showing I do have that.\u201d On 4 November, defendant told Smith to drive plaintiff to Attorney Allen\u2019s office the next day to sign some papers, and on 5 November plaintiff executed the deed in question at Allen\u2019s office. Sometime after 5 November, plaintiff received the deed in the mail from Allen. After Smith had read the deed to plaintiff about three times, plaintiff responded, \u201cDo you mean to tell me that\u2019s all that\u2019s in there and Peggy is not in there at all?\u201d Plaintiff then instructed Smith to telephone Allen for her. On the phone, plaintiff told Allen that she wanted the deed to be just like her will with respect to the property. That is, defendant would have a life estate, and plaintiff\u2019s niece, Peggy, would have the remainder interest.\nFrom the foregoing evidence, the jury could have found several of the badges of undue influence. The evidence showed that plaintiff was old and physically and mentally weak; the deed was different from and effectively revoked a portion of plaintiff\u2019s will; and defendant procured the deed\u2019s execution. We conclude that, taken together, the facts and circumstances were sufficient to permit the jury reasonably to infer that defendant procured the 5 November 1990 deed by means of undue influence.\nII.\nDefendant\u2019s next contention is that the trial court erred in allowing plaintiff\u2019s witnesses to testify to statements made by plaintiff, who was deceased at the time of trial, because the statements were inadmissible hearsay. First, defendant argues that certain testimony by Janie Turner, a friend of plaintiff, should have been excluded. Specifically, Turner testified that plaintiff told her that she did not like the power of attorney that she had granted and that she did not want anyone writing checks on her account.\nThe testimony of Christine Williams, another friend of plaintiff, included statements of plaintiff similar to those testified to by Turner. In addition, Williams testified that plaintiff told her that she thought the power of attorney she had signed was just another one of the deeds she had been signing, as plaintiff had recently been selling some of the land she owned.\nMagdalene Smith, plaintiff\u2019s attendant, testified that plaintiff told her that she wanted to leave her property to her brother for life, and then to her niece, Peggy. Plaintiff told Smith not to tell defendant about the terms of plaintiff\u2019s will, because if he found out, he would not leave plaintiff alone until he got everything she had. Smith also testified to a conversation between plaintiff and defendant where plaintiff told defendant she was not going to leave her property to him and that she was not responsible for educating his children. Finally, Smith testified that, upon hearing her read the deed to plaintiff, plaintiff stated that the terms of the deed were not what she intended and that she wanted the property to go to her niece, Peggy.\nWe believe that the rule announced in In re Will of Ball, 225 N.C. 91, 33 S.E.2d 619 (1945), is applicable to the case at hand. There the Court held: \u201cEvidence of declarations of the testator which disclose his state of mind at the time of the execution of the paper writing or the circumstances under which it was executed, tending to show he did or did not act freely and voluntarily, is competent as substantive proof of undue influence.\u201d Id. at 94, 33 S.E.2d at 622. In the present case, all of the challenged testimony concerned plaintiffs state of mind regarding defendant and tended to show that plaintiff did not freely and voluntarily deed the remainder interest in the property to defendant. Accordingly, the statements testified to were admissible as tending to prove undue influence. We note that the Dead Man\u2019s Statute, N.C.G.S. \u00a7 8C-1, Rule 601(c) (1992), is not at issue here, because the challenged testimony did not come from interested witnesses.\nIII.\nDefendant next argues that the trial court erred in admitting the testimony of Magdalene Smith and W.T. Parrott, plaintiffs physician, regarding plaintiffs mental condition. Dr. Parrott testified that in 1989 and 1990, plaintiff had periods of hallucinations and confusion. Smith testified about plaintiffs September 1990 confusion and disorientation.\nDefendant first contends that this testimony was irrelevant, as summary judgment had been granted for defendant on the issue of plaintiffs mental capacity. We disagree. The mental condition of the person executing the document is perhaps the strongest factor in resolving the question of undue influence. In re Will of Ricks, 292 N.C. 28, 37, 231 S.E.2d 856, 863 (1977). Moreover, a finding against the plaintiff on the issue of mental capacity does not necessarily preclude a finding of mental weakness on the issue of undue influence. See Hardee, 309 N.C. at 758, 309 S.E.2d at 246. Accordingly, defendant\u2019s contention that the mental condition of plaintiff was irrelevant is without merit.\nDefendant also argues that the evidence of mental weakness was irrelevant because the testimony did not specifically center on plaintiff\u2019s condition on the date the deed was executed. Further, even if the testimony was relevant, defendant contends, its relevance was substantially outweighed by the danger of confusion of the issues or misleading the jury, and the testimony should have been excluded under N.C.G.S. \u00a7 8C-1, Rule 403 (1992). We note that whether to exclude relevant evidence under Rule 403 is a matter left to the discretion of the trial court. Matthews v. James, 88 N.C. App. 32, 39, 362 S.E.2d 594, 599 (1987), disc. review denied, 322 N.C. 112, 367 S.E.2d 913 (1988).\nEvidence of a decedent\u2019s mental capacity at other times is admissible if it bears on the issue of the decedent\u2019s mental capacity at the time he executed the document. Id. at 40, 362 S.E.2d at 599-600. Evidence of his mental condition before the critical time is admissible, if it is not too remote to justify an inference that the same condition existed at the latter time. Id. at 40, 362 S.E.2d at 600. Whether the evidence is too remote depends on the circumstances of the case interpreted by \u201cthe rale of reason and common sense.\u201d Id. (quoting In re Will of Hargrove, 206 N.C. 307, 312, 173 S.E. 577, 579-580 (1934)).\nIn the case at hand, the deed was executed on 5 November 1990. Smith testified to plaintiff\u2019s mental condition as of September 1990, and Dr. Parrott testified to the period around 1989-1990. This testimony was not too remote to justify an inference that the same condition existed on 5 November 1990, nor was it so remote as to confuse or mislead the jury.\nIV.\nDefendant\u2019s final argument on appeal is that the trial court erred in its instruction to the jury on undue influence. Defendant submitted an instruction similar to North Carolina Pattern Jury Instruction 860.20, \u201cWills \u2014 Undue Influence,\u201d in that, among the factors listed for the jury\u2019s consideration were: (1) whether the instrument is made in favor of one with whom there are no ties of blood, or not; and (2) whether it disinherits the natural objects of the drafter\u2019s bounty, or not. The trial court\u2019s instruction was, instead, based on N.C.P.I. 505.30, entitled \u201cRescission of Written Instrument \u2014 Undue Influence,\u201d which is similar to 860.20, but does not include the two factors listed above. We note that there is no pattern instruction specifically relating to the setting aside of a deed based on undue influence.\nThis Court has recognized that the preferred method of jury instruction is the use of the approved guidelines of the North Carolina Pattern Jury Instructions. In re Will of Leonard, 71 N.C. App. 714, 717, 323 S.E.2d 377, 379 (1984). Although the pattern instruction given by the trial court was not the same as that requested by defendant, it did include among the list of factors to be considered: \u201cany other factors which you find from the evidence may be relevant.\u201d We conclude that, while the trial court could have properly given N.C.P.I. 860.20, see Hardee, 309 N.C. at 756-757, 309 S.E.2d at 245, the instruction that was given was proper and did not prejudice defendant.\nFor the reasons stated, we conclude that the trial court committed no error.\nNo error.\nJudges JOHNSON and GREENE concur.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "Burrows & Hall, by Fredric C. Hall, for plaintiffs-appellees.", "White & Allen, P.A., by David J. Fillippeli, Jr. and John R. Hooten, for defendant-appellee." ], "corrections": "", "head_matter": "PEGGY JOYCE SMITH CAUDILL, Individually, and HAROLD J. SMITH, JR., as Executor of the Estate of Kitty Smith Noecker, Plaintiffs v. GLADYS KINSEY SMITH, Individually, and as the Administratrix of the Estate of Thomas K. Smith, Defendants\nNo. 934SC1293\n(Filed 15 November 1994)\n1. Deeds \u00a7 120 (NCI4th)\u2014 undue influence \u2014 sufficiency of evidence\nEvidence was sufficient to permit the jury reasonably to infer that defendant procured a deed by means of undue influence where it tended to show that plaintiff was old and physically and mentally weak; the deed was different from and effectively revoked a portion of plaintiff\u2019s will; and defendant procured the deed\u2019s execution.\nAm Jur 2d, Deeds \u00a7\u00a7 204-210.\n2. Evidence and Witnesses \u00a7 924 (NCI4th)\u2014 statements by grantor \u2014 admissibility\nIn an action to have a deed declared void on the ground that it was obtained by undue influence, statements made by plaintiff, who was deceased at the time of trial, were not inadmissible hearsay, since evidence of declarations of the grantor which disclosed his state of mind at the time of the execution of the paper writing or the circumstances under which it was executed, tending to show that he did or did not act freely and voluntarily, is competent as substantive proof of undue influence, and all the challenged testimony here concerned plaintiff\u2019s state of mind regarding defendant and tended to show that plaintiff did not freely and voluntarily deed the remainder interest in the property to defendant.\nAm Jur 2d, Evidence \u00a7\u00a7 667, 696.\nException to hearsay rule, under Rule 803(3) of Federal Rules of Evidence, with respect to statement of declar-ant\u2019s mental, emotional, or physical condition. 75 ALR Fed 170.\n3. Evidence and Witnesses \u00a7 200 (NCI4th)\u2014 undue influence in executing deed \u2014 mental condition of grantor \u2014 evidence admissible\nIn an action to set aside a deed based on undue influence, the trial court did not err in admitting the testimony of the grantor\u2019s attendant and physician regarding her mental condition, since there was no merit to defendant\u2019s contention that this testimony was irrelevant and too remote in time to be admissible.\nAm Jur 2d, Evidence \u00a7 556.\n4. Wills \u00a7 67 (NCI4th)\u2014 undue influence \u2014 instructions proper\nThe trial court\u2019s instruction to the jury on undue influence was proper and did not prejudice defendant, though it was not the same as that requested by defendant which was based on the North Carolina Pattern Jury Instruction on undue influence in the execution of wills.\nAm Jur 2d, Wills \u00a7 1090.\nAppeal by defendant from judgment filed 1 April 1993 by Judge Ernest B. Fullwood in Duplin County Superior Court. Heard in the Court of Appeals 14 September 1994.\nBurrows & Hall, by Fredric C. Hall, for plaintiffs-appellees.\nWhite & Allen, P.A., by David J. Fillippeli, Jr. and John R. Hooten, for defendant-appellee." }, "file_name": "0064-01", "first_page_order": 96, "last_page_order": 103 }