{ "id": 8655032, "name": "W. A. BISSETT et als. v. C. W. BAILEY", "name_abbreviation": "Bissett v. Bailey", "decision_date": "1918-09-11", "docket_number": "", "first_page": "43", "last_page": "47", "citations": [ { "type": "official", "cite": "176 N.C. 43" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "174 N. C., 490", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11254517 ], "opinion_index": 0, "case_paths": [ "/nc/174/0490-01" ] }, { "cite": "74 N. C., 301", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8682601 ], "opinion_index": 0, "case_paths": [ "/nc/74/0301-01" ] }, { "cite": "107 N. C., 266", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273199 ], "year": 1631, "opinion_index": 0, "case_paths": [ "/nc/107/0266-01" ] }, { "cite": "143 N. C., 229", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656822 ], "opinion_index": 0, "case_paths": [ "/nc/143/0229-01" ] }, { "cite": "91 N. C., 139", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8686723 ], "opinion_index": 0, "case_paths": [ "/nc/91/0139-01" ] }, { "cite": "175 N. C., 422", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "160 N. C., 437", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "84 N. C., 235", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8690318 ], "weight": 3, "pin_cites": [ { "page": "238" } ], "opinion_index": 0, "case_paths": [ "/nc/84/0235-01" ] }, { "cite": "175 N. C., 420", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659797 ], "opinion_index": 0, "case_paths": [ "/nc/175/0420-01" ] } ], "analysis": { "cardinality": 556, "char_count": 12501, "ocr_confidence": 0.461, "pagerank": { "raw": 1.9268217269457633e-07, "percentile": 0.7337263678307113 }, "sha256": "9c6745faa27cf9c026dc3d74cf01e9a536c7cde30238097ace6947d7ad2b2c53", "simhash": "1:d2b3dfa7a13dd0e3", "word_count": 2157 }, "last_updated": "2023-07-14T20:39:13.878101+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "W. A. BISSETT et als. v. C. W. BAILEY." ], "opinions": [ { "text": "Walxer, J.,\nafter stating the case: The testimony offered by the plaintiffs as to the mental capacity of Mrs. Bailey, the grantor in the deed, was competent and material, and it was error to exclude it.\nWe were informed at the hearing that the ruling was based on the ground that the proposed evidence involved the stating of a transaction or communication between the witnesses, who were parties to the action, and the deceased, but we do not think it does have that effect, in the true sense of the law, which generally excludes such transactions and communications. \"We recently said, in the case of In re Chrisman\u2019s Will, 175 N. C., 420: \u201cThis Court has held in McLeary v. Norment, 84 N. C., 235, and more recently in Rakestraw v. Pratt, 160 N. C., 437, that 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 comqietent 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. 1631, prohibiting evidence of transactions with a deceased person, do not apply.\u201d\nIt was held, though, in that case, that the rule did not apply when the validity of the will was assailed for undue influence, when the question involved a transaction or communication with the deceased (175 N. C., 422), citing Hathaway v. Hathaway, 91 N. C., 139; Lineberger v. Lineberger, 143 N. C., 229, and Bunn v. Todd, 107 N. C., 266. But this is not very material here, as the rejected evidence related only to the mental condition of the testatrix. This Court held many years ago that such proof was not within the inhibition of C. C. P., sec. 343 (Battle\u2019s Revisal, sec. 343; Code, sec. 590; Revisal of 1905, sec. 1, 1631). It was there said (McLeary v. Norment, 84 N. C., 235, at 238) : \u201cThe conversation offered was not to prove any fact stated or implied, but the mental condition of the plaintiff, as declarations are received to show the presence of disease in the physical system. How, except through observation of the acts and utterances of a person, can you arrive at a knowledge of his health of body and mind ? As sanity is ascertained from sensible and sane acts and expressions, so may and must conclusions of unsoundness be reached by the same means and the same evidence. The declarations are not received to show the truth of the things declared, but as evidence \u25a0of a disordered intellect, of which they are the outward manifestations. The admissibility of the witness\u2019 opinion, resting, as it necessarily must, upon past opportunities of observing one\u2019s conduct, requires, in order to a correct estimate of the value of the opinion, an inquiry into the facts \u2022and circumstances from which it has been formed. There seems to be no sufficient reason for receiving the opinion and excluding proof of the facts upon which it is founded.\u201d It was upon the ruling in that case that this Court has rested all of its decisions on this question. It was there further said by the Court, following McCanless v. Reynolds, 74 N. C., 301, that the principle upon which is based the exclusion of such transactions and communications as are described in Revisal, sec. 1631, is \u25a0that, unless both parties can be heard, it is best to hear neither, because it is not only unfair and unjust to do so, but it would afford an easy opportunity, and a great temptation, to commit perjury. Smith, C. J., said, in the McLeary case, that \u201cThe proposition presupposes an admission, or a statement from wbicb an admission may be inferred, injurious to tbe deceased or lunatic, and it is disallowed because the party is unable to give his version of the matter.\u201d But this, he argues, does not apply merely to actions or conduct of the deceased, or his or her transactions or communications with the witness which do not tend to fix the deceased with liability or to discharge her from it, but merely indicates the state of the mind or faculties. The final conclusion was that conversations and transactions mentioned in the Code, of which a living-witness is not permitted to testify when the other party to it is dead, insane, or lunatic, and unable to give his version of them, do not, in our construction of the language and purposes of the law, embrace such evidence as was here offered and rejected, and is outside the mischief intended to be remedied.\nThe case of Brown v. Adams, 174 N. C., 490, is not like this case, for there the attempt was to prove a conversation of the deceased for the purpose of fixing liability upon Mr. Adams\u2019s estate, when he, of course, and those claiming under him after his death had no opportunity to confront the witness with his testimony or that of any other witness. That is the very case described by Chief Justice Smith in McLeary v. Norment, supra, where he attempts to make clear the distinction between it and a case like this one, where the object merely is to show the mental condition and not the truth of the deceased\u2019s declarations. Brown v. Adams related to the terms of a contract, and was not remotely connected with the state of Mr. Adams\u2019s mind or his physical condition.\nIt follows that there must be another trial because of the error in excluding this testimony, which was competent. But we may properly add that in the questions asked and the answers that would have been given if permitted by the court, we do not see any reference to transactions and communications with the deceased. The opinions of the witnesses may have been derived from other sources.\nThe testimony as to the administration of morphine and chloroform was also improperly excluded. With the evidence of the medical expert, it tended to show the weakened state of the testator\u2019s mind and was some proof of mental derangement and incapacity.\nNew trial.", "type": "majority", "author": "Walxer, J.," } ], "attorneys": [ "O. P. Dickinson and Manning & Kitchin for plaintiffs.", "J. Crawford Biggs for defendant." ], "corrections": "", "head_matter": "W. A. BISSETT et als. v. C. W. BAILEY.\n(Filed 11 September, 1918.)\n1. Evidence \u2014 Mental Capacity \u2014 Parties \u2014 Transactions and Communications \u2014 Deceased Persons \u2014 Deeds and Conveyances \u2014 Appeal and Error.\nIn an action to set aside a deed for want of sufficient mental capacity of tbe grantor, since deceased, to execute it, testimony of witnesses, who-are parties to tbe action, as to their opinion of tbe mental capacity of tbe grantor and bis physical condition thereto relating, is not such transaction or communication with a deceased person as is prohibited by Bevisal, sec. 1631, and its rejection by tbe trial court constitutes reversible error. Semble, declarations of tbe deceased, when tending to show tbe basis of tbe opinion, are also competent, when confined to the question of mental .incapacity. ,\n2. Same \u2014 Drugs\u2014Morphine.\nWhere, in an action to set aside a deed for mental incapacity of the-grantor, there is evidence tbat she was old and sick at tbe time, and under' tbe care of her physician, and tbe physician has testified, as a medical expert, tbat tbe administration of morphine for a long time would deteriorate tbe body and mind, testimony of a party to tbe action tbat morphine tablets were given tbe grantor continuously and freely at this time, whenever she was suffering, is some evidence tending to show a weakened state-of tbe grantor\u2019s mind, under tbe circumstances, and improperly excluded.\nActiok tried before Kerr, Jand a jury, at April Term, 1918, of Nash. , \u25a0\nThe action was brought to set aside a deed alleged to have been executed by Mrs. Nancy Bailey to her son, C. W. Bailey, who is the defendant, on 12 August, 1914. Mrs. Bailey was about 70 years old when she died, 30 August, 1914. She was feeble for some time before her death, and had two falls \u2014 one which broke her arm, and the other her leg or hip, the latter seeming to have caused or hastened her death. There was testimony offered by the plaintiff of her bad mental and physical condition, and of her want of sufficient mental capacity to execute the deed, which was admitted by the court, but certain other testimony of a like kind was excluded. If it was competent and relevant, its exclusion, of course, was error, and the question is, therefore, whether it was admissible. The following, which is taken from the record, will show the nature of the proof which was tendered by the plaintiff, and the rulings of the \u25a0court thereon:\nMrs. Hattie Hathaway, witness for the plaintiffs, was asked this question by them: \u201cWhat, in your opinion, was the mental and physical condition of Mrs. Nancy Bailey after she was hurt the last time?\u201d Defendant objected. Objection sustained, and plaintiffs excepted.\nThe witness, if permitted to answer the question, would have testified that her grandmother was very feeble; that she was confined to her bed the entire time after having the last fall, and that her mind was very feeble and at times wandered.\nC. A. Morgan, witness for plaintiffs, was asked this question by them: \u201cWhat, in your opinion, was the physical and mental condition of the deceased, Nancy Bailey, at the several times you were there, between 30 July and the first of September?\u201d Defendant objected. Objection sustained, and plaintiffs excepted.\nThe witness, if allowed to testify, would have stated that her physical \u25a0condition was very bad; that she was confined to her bed all the time after the second accident, up to her death; that she suffered a great deal and was unable to move in any position in the bed; that she was old and had been feeble before this time, and that this second injury had made her much weaker and more feeble; that her mental condition was also bad, and that a portion of the time she was unconscious.\nThe following question was asked the witness by the plaintiffs: \u201cWhat, in your opinion, was her mental condition during this time \u2014 that is, did .she, in your opinion, have mental capacity to execute a deed \u2014 that is, to know what act she was doing and to comprehend the same ?\u201d Defendant \u25a0objected. Objection sustained, and plaintiffs excepted.\nIf allowed to answer the question, the witness would have said that, in his opinion, after the second injury, Mrs. Bailey was not mentally capable of executing a deed; that she did not have the mental capacity to understand her act or to know what she was doing.\nMrs. Willie Bissett, witness for the plaintiffs, was asked this question by them: \u201cState if morphine tablets were given to your mother during her last illness.\u201d Defendant objected. Objection sustained, and plaintiffs excepted.\nIf permitted to answer tbe question, the witness would have stated that these tablets were given continuously and frequently to her mother, whenever she was apparently suffering; that more than one box of tablets were given her.\nThe witness was asked the following question: \u201cState whether or not, from your observation on the 12th day of August, 1914, your mother had the mental capacity to understand the nature of the execution of a deed, its scope and effect, or its nature and its consequences, and if she had the mental capacity to know what she was doing and to contract understandingly.\u201d Defendant objected. Objection sustained, and plaintiffs excepted.\nIf permitted to answer, the witness would have said that, in her opinion, the deceased did not have that capacity.\nIt appeared that Mrs. Bailey had fallen twice before the date of the deed.\nDr. Dickinson had testified, as a medical expert, that the administration of morphine to a patient for a long time would deteriorate the body and mind in every way, and that the doctors were compelled to use the drug and chloroform in her case to relieve the pain and to keep her quiet, and to prescribe the use of it for that purpose. The plaintiff proposed to show by a witness that morphine had been given to Mrs. Bailey during her sickness, about the time the deed was executed. The question put to the witness was: \u201cState if morphine tablets were given to your mother during her last illness.\u201d Defendant objected. Objection sustained, and plaintiffs excepted. If permitted to answer the question, the witness would have stated that these tablets were given continuously and frequently to her mother, whenever she was apparently suffering; that more than one box of tablets were given her.\nThere was a verdict for the defendant and a judgment thereon. Plaintiffs excepted and appealed.\nO. P. Dickinson and Manning & Kitchin for plaintiffs.\nJ. Crawford Biggs for defendant." }, "file_name": "0043-01", "first_page_order": 95, "last_page_order": 99 }