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    "judges": [
      "Judges MARTIN (Robert M.) and WEBB concur."
    ],
    "parties": [
      "IN THE MATTER OF THE WILL OF GLENN EDISON SIMMONS, Deceased"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nBy 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 \u201cDead Man\u2019s\u201d statute, G.S. \u00a7 8-51. They contend that the hearsay rule operates 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. \u00a7 8-51 prohibiting an interested party from testifying in his own behalf and against the estate \u201cconcerning a personal transaction or communication between the witness and the deceased person\u201d compel the exclusion of the challenged testimony.\nWith respect to the testimony of Pitts, the attorney who prepared the \u201cpaper writing\u201d 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 \u201cinterested witness\u201d within the meaning of G.S. \u00a7 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 \u201cmostly 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.\u201d In re Will of Ricks, 292 N.C. 28, 42, 231 S.E. 2d 856, 866 (1977).\nSimilarly, caveators contend that certain testimony of the witness Townsend was incompetent because it was either hearsay, or in violation of G.S. \u00a7 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 \u201cno visitors\u201d 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, \u201cI had nothing to do with the no visitors sign being placed on Glenn\u2019s hospital door. Glenn himself requested the sign.\u201d When asked why the decedent so requested, caveators objected and excepted to the overruling of their objection. Thus, Townsend was allowed to state: \u201cHattie 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.\u201d\nWhile the entire matter of the \u201cno visitors\u201d 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\u2019s request, we find no error in the witness\u2019 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\u2019s attitude toward his wife was manifest in all of the testimony.\nSecondly, caveators assert that the court erred in allowing Townsend to testify that the deceased gave \u201caccurate\u201d responses to questions at the social security office regarding the preparation of an affidavit legitimating Townsend\u2019s children. Responding to questions on cross-examination, Townsend in substance stated that the deceased\u2019s responses were accurate according to her personal knowledge. It is settled that the prohibitions of G.S. \u00a7 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\u2019s N.C. Evidence, Witnesses \u00a7 73 (Brandis rev. 1973). Townsend\u2019s 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.\nCaveators\u2019 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, 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 \u201cpaper writing\u201d in question; that she had driven Mr. Simmons to Pitts\u2019 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\u2019s office for the preparation of the will in question. Caveators further contend that the court erred in not giving a limiting instruction to the jury with respect to such testimony.\nWe 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 \u201cobjectionable\u201d testimony concerned personal observations of the deceased by the witness Hedrick rather than \u201cpersonal transactions or communications\u201d 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).\nFurthermore, even assuming that the testimony was competent only for the limited purpose of showing a basis for Hedrick\u2019s opinion as to the deceased\u2019s 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\u2019s failure to give a limiting instruction with respect to the testimony challenged by these exceptions.\nBased on assignments of error numbers 3, 19, and 28, caveators next assert that the court erred\nby admitting testimony of propounders\u2019 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\u2019 witnesses, and then instructing in his charge that the limiting instructions applied only to testimony of heirs of Glenn Simmons.\nAs 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).\nNeither do we find prejudicial error with respect to the limiting instruction given in the charge. The trial judge instructed the jury that when\nheirs 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. . . .\nIn their brief caveators argue that the use of the word \u201cheirs\u201d in this instruction allowed the jury to give \u201cunlimited consideration\u201d to the testimony of Pitts and Hedrick, and to \u201ctake the instruction to mean that the rule did not apply to Ruth Townsend.\u201d\nWe do not agree. The challenged instruction has no application to the witness Pitts, since he was not an \u201cinterested witness\u201d within the meaning of G.S. \u00a7 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 \u201cinterested witness\u201d within the meaning of G.S. \u00a7 8-51 because she was the designated executrix under the \u201cpaper writing\u201d at issue, Whitesides v. Green, 64 N.C. 307 (1870), 1 Stansbury\u2019s N. C. Evidence, Witnesses \u00a7 68 (Brandis rev. 1973), she did not testify as to any \u201cpersonal transaction\u201d with the deceased. She testified as to her personal observations of certain of his conduct. In re Will of Bowling, supra.\nFinally, 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 \u201cpersonal transactions\u201d with the deceased in violation of G.S. \u00a7 8-51. Id.\nWe therefore hold that the Court\u2019s charge with respect to the limiting instruction was free from prejudicial error.\nBy assignments of error numbers 25, 26, 29 and 30, based on seven exceptions duly noted, caveators attack that portion of the court\u2019s 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.\nCaveators\u2019 assignments of error numbers 12 and 21, based on eight exceptions, attack the court\u2019s instructions limiting certain testimony of caveators\u2019 witnesses regarding conversations with the deceased to the issue of mental capacity. They argue that the court\u2019s use of the expression \u201cmental capacity\u201d 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 \u201ccould not see hardly to drive after it turned dark\u201d; that his memory sometimes failed him; and that his mental condition had deteriorated, was competent evidence on the issue of deceased\u2019s 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 \u201cother facts and circumstances tending to show that he was unable to exercise his will freely and intelligently,\u201d Id. 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.\nWe 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).\nCaveators, by assignment of error number 23, assert that the court erred to their prejudice by \u201callowing 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.\u201d 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:\nThe inquiry is . . . whether the paper propounded is his will or not. Both parties, the propounders and caveators, are actors for this purpose. The subscribing 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.\nIt 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.]\nThis assignment of error has no merit.\nCaveators 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.\nNo error.\nJudges MARTIN (Robert M.) and WEBB concur.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "Gaither and Gorham, by James M. Gaither, Jr., and J. Samuel Gorham, III, for caveators appellants.",
      "Come and Pitts, by Larry W. Pitts and Stanley J. Come, for propounders appellees."
    ],
    "corrections": "",
    "head_matter": "IN THE MATTER OF THE WILL OF GLENN EDISON SIMMONS, Deceased\nNo. 7825SC1044\n(Filed 2 October 1979)\n1. Wills \u00a7 22.1; Evidence \u00a7 11.6\u2014 caveat proceeding \u2014 testimony by preparer o\u00ed will \u2014 mental capacity\nTestimony by the attorney who prepared the paper writing in question in a caveat proceeding regarding transactions and communications with the deceased was properly admitted for the reasons that (1) he was not an \u201cinterested witness\u201d within the meaning of G.S. 8-51 and (2) his testimony was not hearsay because it was offered to show the basis of his opinion that testator had the mental capacity to execute a will.\n2. Wills \u00a7 19\u2014 question raised by caveator \u2014further explanation by witness proper\nIn a caveat proceeding where caveators first raised a question concerning a \u201cno visitors\u201d sign on deceased\u2019s hospital door and where a witness was allowed, without objection, to testify on cross-examination that the sign was put there at the deceased\u2019s request, the trial court did not err in permitting the witness to explain how she reached this opinion.\n3. Wills \u00a7 19; Evidence \u00a7 11.3\u2014 caveat proceeding \u2014 testimony about deceased\u2019s conduct \u2014 independent knowledge of witness\nThe trial court in a caveat proceeding did not err in allowing a woman who lived with deceased and had his children but who was not his wife to testify that deceased gave \u201caccurate\u201d responses to questions at the social security office regarding the preparation of an affidavit legitimating the witness\u2019s children, since the witness stated that the responses were accurate according to her personal knowledge, and G.S. 8-51 does not prevent a witness from testifying as to the acts and conduct of deceased where the witness is merely an observer and is testifying to facts based upon independent knowledge.\n4. Wills \u00a7 23\u2014 caveat proceeding \u2014 failure to give limiting instruction \u2014 no request\nNo prejudicial error was committed by the trial court in a caveat proceeding in failing to give a limiting instruction with respect to testimony of witnesses who testified that, in their opinion, deceased had testamentary capacity, since no request for such instruction was made.\n5. Wills \u00a7 23\u2014 caveat proceeding \u2014evidence of transactions and communications with deceased \u2014 limiting instruction proper\nThe trial court in a caveat proceeding did not err in giving a limiting instruction which provided that testimony by the heirs of deceased concerning personal transactions and communications with deceased should be considered only for the purpose of showing the basis of their opinions with respect to deceased\u2019s mental capacity, and such instruction did not allow the jury to give unlimited consideration to the testimony of the attorney who prepared the will or to that of the designated executrix under the will, nor could the jury take the instruction to mean that the rule did not apply to the witness who lived with deceased and bore his children, but was not married to him.\n6. Wills \u00a7 23\u2014 mental condition o\u00ed testator \u2014 no evidence of undue influence-limiting instruction proper\nThe trial court\u2019s instructions limiting certain testimony of caveator\u2019s witnesses regarding conversations with the deceased to the issue of mental capacity were proper, since such testimony concerned deceased\u2019s mental condition only; there was no independent evidence of undue influence; and the court\u2019s use of the expression \u201cmental capacity\u201d properly precluded the jury from considering the testimony on the issue of undue influence.\n7, Wills \u00a7 13\u2014 caveat proceeding \u2014 propounders entitled to open and close jury argument\nThe trial court in a caveat proceeding did not err in allowing propounders to open and close the arguments to the jury.\nAPPEAL by caveators from Gaines, Judge. Judgment entered 29 June 1978 in Superior Court, CATAWBA County. Heard in the Court of Appeals on 23 August 1979.\nThis is a caveat proceeding instituted on 14 March 1978 by the six legitimate sons and daughters of the deceased who claim that the \u201cpaper writing\u201d presented for probate as the last will and testament of their father one week following his death was not his last will and testament for the reasons that he lacked testamentary capacity at the time he executed such \u201cpaper writing\u201d and that its execution was procured through the exercise of undue influence. Propounders, who are the woman with whom the deceased was living at the time of his death, the four illegitimate children he had by her, and the executrix of the purported will, duly answered the caveat, denying the material allegations therein. At trial evidence tending to show the following was offered:\nGlenn Edison Simmons died on 16 November 1977 survived by his wife Hattie, from whom he had been legally separated since 1967; six sons and daughters ranging in age from twenty to forty-two who were born to the deceased and his wife during their marriage; and four sons and daughters ranging in age from seven to seventeen who were born out of wedlock to deceased and Ruth Townsend, a woman whom he had dated since 1957 and lived with since 1970. By a writing dated 16 August 1977, purporting to be a written attested will, he sought to leave all his property to Townsend and their four children.\nPropounders offered the testimony of Larry Pitts, the attorney who drew the will in question, and of Pitts\u2019 secretary who typed it. Both testified that the paper writing presented for probate was the document prepared by them for the deceased on 16 August 1977; that deceased had duly executed such document in their presence; and that they had thereafter signed the document as attesting witnesses.\nPitts testified further that he had known the deceased for \u201csomething over thirty (30) years\u201d; that he had represented the deceased on \u201cvarious and sundry matters\u201d since 1968; that in August 1977 he had discussed and prepared divorce papers for the deceased and had subsequently filed a divorce action against Hattie Simmons; that on 16 August 1977 he prepared, at deceased\u2019s request, the script at issue here and a social security affidavit legitimating the four children of Townsend. Pitts said he knew that deceased had cancer and was undergoing radiation therapy, but that he had not detected any changes in deceased\u2019s mental or physical condition. Based upon his dealings with and observations of the deceased, Pitts stated that, in his opinion, deceased possessed the requisite testamentary capacity. Pitts was also allowed to relate that deceased had said\nseveral times that he was not going to leave anything to the children of [Hattie] . . . because they were grown and on their own and these four children that he had named by Ruth Townsend were young and he did not feel like she could or would be able to support them. . . .\nCaveators called ten witnesses, four of whom were the deceased\u2019s legitimate sons, who testified in substance that their father lacked testamentary capacity because of his deteriorating physical condition. To support their opinions, they related that their father\u2019s memory began failing after a biopsy and subsequent surgery in the Summer of 1977; that he had difficulty remembering who they were on several occasions; that he sometimes forgot their names; and that Ruth Townsend and her children were almost always present when they visited their father at the hospital or at his home.\nUpon objection by propounders, the court limited certain testimony offered by caveators by instructing the jury that such testimony was to be considered \u201conly for the purpose of offering evidence concerning his mental capacity.\u201d Under such an instruction, Max Simmons testified that his father\u2019s physical condition was so weak in August 1977 that he had trouble eating and drinking; that he could not see to drive at night; and that his mind was failing. He recalled that there was friction between some members of the Simmons\u2019 family and the Townsends, but that Ruth Townsend\u2019s reaction to him during his father\u2019s hospitalization had been \u201coverly friendly, happy to see us all and everything. Just as nice as she could be.\u201d On cross-examination, propounders established that Max Simmons did not send his father birthday or Christmas presents; that he had not gone to visit his father after seeing him in the hospital in June 1977 and learning that he would die from the cancer within three to six months; that \u201c[sometimes my father would be perfectly normal and then other times he would be a different person. . . . Sometimes he could recollect things that he wanted to do and other times he could not\u201d; and that this witness had not seen his father on 16 August 1977 so as to know deceased\u2019s mental condition on that date.\nThe three remaining sons of the deceased testified to similar effect. None of them believed that their father possessed testamentary capacity, but none of them had talked with him on 16 August 1977, and all of them stated that at times he was perfectly normal.\nCaveators also called William E. Butner, a local attorney, who testified that he had prepared a will for the deceased on 8 March 1969; that \u201cMr. Simmons was a person of strong will. He knew what he wanted to do, but he sought advice concerning business matters from more than one person. After he asked for advice and made up his mind, that was his decision\u201d; that he had seen the deceased in the Summer of 1977; and that, although he noticed a change in deceased\u2019s physical condition, \u201c[h]e did not say anything to me that indicated a change in his mental condition. . . .\u201d\nCaveators called adversely Ruth Townsend and Margie Hedrick, the executrix under the \u201cpaper writing\u201d dated 16 August 1977. Townsend testified as to her relationship with the deceased; that their first child was born in 1960 and the last in 1970; and that they had all lived together since 1970 \u201cwhen he purchased the trailer which we lived in.\u201d She related that arguments sometimes erupted between the Simmons and the Townsends, but that the Simmons\u2019 children had occasionally visited their father at the trailer and that she had never tried to keep them from seeing him. In her opinion, although the deceased was weak after his surgery, \u201c[h]e did not get confused about things, nor did he ever confuse his children.\u201d\nHedrick testified in substance that she had been the deceased\u2019s bookkeeper since about 1962; that she had handled a lot of his business matters; that she had driven him to his attorney\u2019s office on the day the purported will was drawn; and that, in her opinion, the deceased had testamentary capacity.\nBefore the case was submitted to the jury, the parties stipulated that the script offered for probate was signed and executed according to law. The following issues were submitted to and answered by the jury as indicated:\n1. Was the paper writing dated August 16, 1977 offered for probate as the Last Will and Testament of Glenn Edison Simmons signed and executed according to law?\nAnswer: yes\n2. At the time of the signing and execution of said paper writing dated August 16, 1977, did the said Glenn Edison Simmons, lack sufficient mental capacity to make and execute the Last Will and Testament?\nAnswer: no\n3. Was the execution of the said paper writing dated August 16, 1977 procured by undue influence of Margie S. Hedrick, Ruth L. Townsend or others?\nAnswer: No\n4. Is the paper writing dated August 16, 1977 and each and every part thereof, the Last Will and Testament of Glenn Edison Simmons?\nAnswer: Yes\nFrom judgment entered on the verdict, caveators appealed.\nGaither and Gorham, by James M. Gaither, Jr., and J. Samuel Gorham, III, for caveators appellants.\nCome and Pitts, by Larry W. Pitts and Stanley J. Come, for propounders appellees."
  },
  "file_name": "0123-01",
  "first_page_order": 151,
  "last_page_order": 162
}
