#### MARY WILLIAMS, et al. v. LEO HAID.

Action to Ccmcel Deed for Incompetency of Grantor— Mentad Capacity — Presumption of Law.

1. The capacity or incapacity to make a deed or contract is a question of fact for the jury and not one of law.

2. No presumption of incompetency to make a deed or contract is raised by the law from advanced age or feeble health of the grantor.

*4823. In the trial of an issue as to whether a grantor at the time of executing a deed was of sound mind and disposing memory, it was error to charge that “if the jury believe that the grantor was 64 years of age, was suffering from physical disease, which had developed four years previous thereto, which had grown in strength and virulence up to the time of the execution of the deed, and from the effect of which he died three months thereafter, and that his old age and physical infirmity had weakened his mind ; then the deed being a bounty and made without consideration, there arises the presumption of law that he was incompetent to execute the deed, and the burden is upon the defendant (grantee) to satisfy the jury that he was competent.”

4. The fact that one portion of a charge to the jury correctly presents the law will not cure the erroneous portion.

This was a Civil action, tried before Greene, J., and a jury, at the Eall Term, 1895, of the Superior Court of New HaNovee County.

The plaintiffs alleged that one Lawrence Brown, late of the city of Wilmington, county and state aforesaid, died on the 22d day of April, A. D. 1892, intestate, and that they were his only heirs-at-law.

That prior to his death, to-wi t: on the 14th day of January, A. D. 1892, the said Lawrence Brown executed to the defendant a deed, conveying certain real estate therein described and fully set out in the complaint, and that on said day the said- Lawrence Brown transferred and set over to the defendant all of his personal property without any consideration. That at the time of the execution of the said deed and transfer of the said personal property, the said Lawrence Brown was mentally incompetent to make a deed, or any other disposition of his property.

And that the execution of said deed and the transfer of the said personal property was procured by undue influence, exerted by the defendant and other persons named in the complaint, over the mind and will of the said Lawrence Brown.

*483The defendant admitted the execution of the deed and transfer of the personal property, and denied that the said Lawrence Brown was mentally incompetent to execute said deed or make a valid transfer of the personalproperty, or that the same was procured by any undue influence.

The following issues were submitted to the jury :

“First. Are the plaintiffs the heirs-at-law of Lawrence Brown ?

“Second. Are the plaintiffs the only heirs-at-law of Lawrence Brown?

“Third. At the time of the execution of the deed to the defendant, was Lawrence Brown of sound mind and disposing memory ?

“Fourth. Wasthesaid deed obtained by undue influence exercised by the defendant Leo Haid, Daniel O’Connor, Rev. Father Deunen or any layman of the Catholic Church or any of them ?”

There was much testimony bearing upon the third issue. Among the instructions prayed for by the plaintiff and tendered by the court on the third issue was the following :

“ That while old age itself or physical infirmity or mental weakness is not sufficient by itself to render a man incompetent to make a deed or execute a contract, yet old age, physical and mental weakness raise a strong presumption of incompetency, and if the jury believe that at the time this deed was executed Lawrence Brown was 64 years of age, was suffering from physical disease which had developed four years previous thereto, which had grown in strength and virulence up to the time of the execution of this deed, and from the effect of which he died within three'months thereafter, and that this old age and physcal infirmity had weakened his mind, then, this deed and other disposition of his property being a bounty and made without consideration, there arises the presumption of law *484that he was incompetent to execute said deed or make said contract, and the burden of proof is upon the defendant to satisfy the jury that he was competent, and if the jury are not so satisfied, then the deed and contract is null and void and the jury must find the third issue £ No.’ ” Defendant excepted.

The jury responded to the first issue “Yes;” to the second issue “Yes to the third issue “No and under the direction of the court made no response to the fourth issue.

- The court refused defendant’s motion for a new trial and he appealed from the judgment rendered for plaintiff.

Qeo. Rountree and Thos. W. Strange, for plaintiff.

H. Q. Connor, for defendant (appellant).

Faircloth, C. J.:

We dispose of this case by considering the instructions of the court upon the third issue. That issue was in these words: “ Was the said Lawrence Brown, deceased, at the time of making the said deed of sound mind and disposing memory?” which the jury answered “No.” Alter numerous witnesses were examined on the question, the court charged the jury that the burden of this issue was upon the plaintiff “ to satisfy them by a preponderance of proof that Lawrence Brown, at the time of executing the deed to the defendant, was not of such a state of mind as to comprehend the nature of his act, to understand what he was doing and to know the direct consequence of bis act * * * ; that if the jury believe from the whole of the evidence that at the time of executing the deed he had sufficient mind or mental capacity to understand what he was doing — what property he was conveying, to whom he was conveying it, and for what purpose the conveyance was made, they should answer' the third issue ‘ Yes.’ ”

*485In the latter part of the charge, his Honor instructed the jmy : “ And if the jury believe that at the time this deed was executed Lawrence Erown was 64 years of age, was suffering from physical disease which had developed four years previous thereto, which had grown in strength and virulence up to the time of the execution of this deed, and from the effect of which he died within three months thereafter, and that this old age and physical infirmity had weakened his mind, then, this deed and other disposition of h.is property, being a bounty and made without consideration, there arises the presumption of law that he was incompetent to execute t e deed or to make the contract, and the burden of proof is upon the defendant to satisfy the jury that he was competent, and if the jury are not so satisfied, then the deed and contract are null and void, and the jury must find the third issue ‘ No.’ ” The defendant excepted.

In the latter part of the charge quoted, there is error. The capacity or incapacity to make a deed or contract is a question of fact to be ascertained by the jury, and not one of law. The law does not presume that a man 64 years of age is incompetent to contract, nor that one suffering from physical disease from which he dies in a few months, even if his mind had been weakened by suffering, is incapacitated to contract or convey his property. His actual condition under such and similar circumstances is the matter to be inquired of by the jury. The law cannot declare or presume in the matter until facts are found or admitted. At what age, for instance, will the law presume incompetency ? Would it do so at 50, 60 or 75 years? How much physical suffering and what degree of weakness of mind would the law require to exist before it would presume incompetency ?

It does not help the case to say that, although a part of the charge is erroneous, there is another part of the charge *486on the same point which was correct, and that as a whole there is no error because the jury would be presumed to have obeyed the correct portion. State v. Fuller, 114 N. C., 885. That is to assume that the jury understands the law and is able' to detect and discard erroneous instruction which would not be a safe assumption ; besides, it is the duty of a jury to follow the instructions of the court upon the law7 and legal presumptions, whether they are right or not. "With this conclusion it is unnecessary to pass upon the other questions, as they probably will not be presented at the next trial. Yenire de novo.