#### G. W. RAKESTRAW et als. v. JAMES PRATT and Wife, EMMA, et al.

(Filed 20 November, 1912.)

1. Deeds and Conveyances — Wills — Mental Capacity — Evidence— Fraud — Undue Influence — Transaction with Deceased — Interpretation of Statutes.

In an action to set aside a deed or will on the ground of mental incapacity of the maker or testator at the time of their execution, it is competent for a witness, after testifying as to his opinion that the maker or testator was mentally incompetent at the time of the execution of the deed or will, to further testify as to such communications or conversations he had had with him upon which his opinion was founded; and as to such the provisions of Revisal, sec. 1031, prohibiting evidence of transactions with a deceased person, do not apply.

2. Deeds and Conveyances — Wills—Mental Capacity — Undue Influence — Evidence—Questions for Jury — Appeal and Error.

The testatrix made her will devising all of her property to one of her daughters and twenty days thereafter executed her deed for the same purpose. At the time of making the will and the deed the testatrix was nearly 84 years of age. A witness, one of her daughters, testified that in her opinion the testatrix was-mentally incompetent at the time, and further testified that she was with her mother the day after the will was made, and her mind was very weak and she did not recognize her; told her she had not made a will and the devisee remarked that it was “all a story about the will,” which the testatrix did not contradict: Relé, (1) the execution of the deed being twenty days after the execution of the will, if the fact is accepted by the jury that the testatrix could not remember a day after she made the will that she had done so, it would, under the evidence of this case, be a relevant circumstance as to the intelligent execution of the deed; (2) and if it were established that the testatrix had sufficient mental capacity to make both these instruments, then the assertion of the devisee, in her presence, that the making of the will was “all a story,” which was not denied by her, is some evidence on the issue of undue influence; (8) the exclusion of this evidence, in this case, is reversible error.

Appeal by plaintiff from Daniels, J., at June Term, 1912, of ROCKINGHAM.

*437Civil action, involving tbe validity of a deed purporting to bave been executed by Nellie Eakestraw to Emma Pratt, one of ber daughters, and also involving tbe validity of tbe will of said Nellie Eakestraw, now deceased, in wbicb sbe devised ber estate to Emma Pratt, to tbe exclusion of ber other children.

On issues submitted, tbe jury rendered tbe following verdict:

1. Is tbe paper-writing offered in evidence, tbe last will and testament of Nellie Eakestraw? Answer: “Yes.”

2./Was Nellie Eakestraw of such unsound mind at tbe time of tbe execution of tbe deed as to render ber incapable of executing a deed? Answer : “No.”

3. Did James Prftt and bis wife, Emma, procure tbe execution of tbe said deed by exerting an undue influence over Nellie Eakestraw? Answer: “No.”

Judgment on tbe verdict for defendants, and plaintiffs excepted and appealed.

0. 0. McMichael, P. W. Glide-well, and Watson, Buxton & Watson for plaintiff.

A. L. Brooks and II. R. Scott for defendant.

Hoke, J.

From tbe facts in evidence it appeared that on 7 July, 1908, Nellie Eakestraw, owning two tracts of land and other property, aggregating in value four or five thousand dollars, made ber last will and testament, in wbicb she devised and bequeathed ber estate to ber daughter, Emma, with whom sbe was then living on tbe land, and twenty days thereafter, on 27 July, 1908, sbe executed a deed for this land to ber daughter, Emma. In August,' 1909, said Nellie Eakestraw died, and ber other children and heirs at law, having duly entered a caveat to tbe will and instituted a suit to set aside tbe deed, on tbe ground of mental incapacity and undue influence, tbe two proceedings were consolidated without objection and tbe issues tried and determined as heretofore stated.

On tbe trial there was evidence on tbe part of plaintiffs tending to show that, at tbe time of making tbe will and the deed, Nellie Eakestraw was 84 or 85 years of age, well-nigh physically helpless, and mentally incompetent to make either a will or deed. In support of this position, Mrs. Lou Gann, one of *438the daughters examined as a witness, gave it as her opinion that the mother was mentally incompetent at the time of execution of the will and deed, and testified further that the witness was at the home with the mother the day after the will was made, and that her mother’s mind was very weak; did not recognize the witness^ and that the mother then said to her she had made no will, and also that Emma, in the presence of the mother and another sister, said it was “all a story about the will,” and the mother made no reply, etc.

Plaintiffs proposed to prove same or substantially similar facts by Mrs. Martin, another sister, and the evidence was excluded, the court being of opinion that testimony was incompetent under section 1631, Revisal, excluding, in certain cases, testimony of interested parties as to a transaction with deceased persons. The proposed evidence was in support of the opinion just given by these witnesses as to the mental incapacity of the mother, and is not regarded as a “transaction” by our decisions construing the section referred to. In McLeary v. Norment, 84 N. C., 235, the Court held: “Where a witness testifies to the want of mental capacity in a grantor to make a deed, and that his opinion was formed from conversations and communications between the witness and grantor, it was held competent to prove the facts upon which such opinion was founded. Section 343 of The Code does not apply to the facts of this case.” Section 343 of The Code of that time corresponds to section 1631 of present Revisal. It was urged for the defendant that the evidence had relation only to the issue on the validity of the will, and, even if the ruling was erroneous, it should not be allowed to affect the verdict as to the deed, but we cannot so consider the evidence. The deed was executed twenty days after the' execution of the will, and, under the circumstances presented, if the fact is accepted by the jury that, within twenty days of the execution of the deed, the alleged testatrix could not remember for twenty-four hours that she had made a will, this of itself would be a relevant circumstance as to the intelligent execution of the deed. Apart from this, if, as defendant contends, Nellie Rake-straw, the mother, had mental capacity sufficient to execute these instruments, the fact that she allowed the devisee, in her *439presence and without protest, to assert that tbe making of tbe will was “all a story,” when she bad just made such a will, this in one aspect might be considered a relevant circumstance on tbe third issue as to undue influence exercised by sucb devisee. On a careful perusal of tbe record, tbe Court is of opinion that tbe exclusion of tbe evidence referred to constitutes reversible error, and tbe cause must be tried before another jury. It is so ordered.

New trial.