{ "id": 8626517, "name": "In re Will of PETER R. NELSON", "name_abbreviation": "In re Will of Nelson", "decision_date": "1936-06-30", "docket_number": "", "first_page": "398", "last_page": "400", "citations": [ { "type": "official", "cite": "210 N.C. 398" } ], "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": "195 N. C., 47", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627666 ], "opinion_index": 0, "case_paths": [ "/nc/195/0047-01" ] }, { "cite": "162 N. C., 243", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270701 ], "opinion_index": 0, "case_paths": [ "/nc/162/0243-01" ] }, { "cite": "155 N. C., 485", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652729 ], "opinion_index": 0, "case_paths": [ "/nc/155/0485-01" ] }, { "cite": "286 Pa., 58", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1096515 ], "opinion_index": 0, "case_paths": [ "/pa/286/0058-01" ] }, { "cite": "109 Okl., 126", "category": "reporters:state", "reporter": "Okla.", "case_ids": [ 8887127 ], "opinion_index": 0, "case_paths": [ "/okla/109/0126-01" ] }, { "cite": "68 Pa., 342", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1024529 ], "opinion_index": 0, "case_paths": [ "/pa/68/0342-01" ] }, { "cite": "71 Mo., 553", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 451570 ], "opinion_index": 0, "case_paths": [ "/mo/71/0553-01" ] }, { "cite": "99 Mo., 160", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 565826 ], "opinion_index": 0, "case_paths": [ "/mo/99/0160-01" ] } ], "analysis": { "cardinality": 354, "char_count": 5569, "ocr_confidence": 0.494, "pagerank": { "raw": 1.2240919645422112e-07, "percentile": 0.6033797723342171 }, "sha256": "9ce420cee33203f6fc5f57a22c8fe7152c34c2c9dc176a9f47f353f05aac6e0d", "simhash": "1:87eee4d0bde8ec1e", "word_count": 934 }, "last_updated": "2023-07-14T17:57:05.250790+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re Will of PETER R. NELSON." ], "opinions": [ { "text": "Schenck, J.\nThe issue raised by the pleadings related to the testamentary capacity of Peter R. Nelson at the time he signed the paper writings offered for probate. The court, over exceptions duly noted, permitted the propounders to ask the following questions and receive the following answers from the witness I. M. G-ordan, to wit:\n\u201cQ. Do you know the general reputation of P. R. Nelson in the community where he lived as to his business ability ?\n\u201cA. I think I do.\n\u201cQ. What is it?\n\u201cA. Very high. He was considered an exceptional business man in his line of business, that is handling farms and dealing with renters so as to make the renters make something for themselves and for him, too.\u201d\nThe court, also over objection and exception of the caveators, allowed the following questions and answers to and from the witness W. H. Reid, to wit:\n\u201cQ. Do you know his (P. R. Nelson\u2019s) general reputation for business ability?\n\u201cA. I think I do.\n\u201cQ. What is it?\n\u201cA. Good.\u201d\nThe court further, over objection and exception of the caveators, allowed the following questions and answers to and from the witness W. L. Lynch, to wit:\n\u201cQ. Did you know the general reputation as to business. ability of Mr. Nelson?\n\u201cA. Yes.\n\u201cQ. What was it ?\n\u201cA. Good.\u201d\nWe are of the opinion, and so hold, that in admitting the evidence as to the general reputation of the testator\u2019s business ability the court committed error. \u201cIt follows, since reputation is looked to merely as evidence of the character reputed, that the reputation is hearsay testimony; for it is the expression of an opinion on the part of the community, used testimonially, but uttered out of court and not under cross-examination. It is therefore receivable, if at all, as an exception to the hearsay rule.\u201d Wigmore on Evidence (2 Ed.), Yol. 3, par. 1609, p. 357. \u201cEvidence, whether oral or written, is called hearsay when it depends, either wholly or in part, upon the competency and credibility of some person other than the witness who is testifying. Such evidence is inadmissible for the reason that the statements made were not under oath, the judge and. jury cannot observe the demeanor of the absent witness, and for the further and more important reason that the constitutional guaranty that the accused shall be confronted with the witnesses against him so as to allow\" opportunity for cross-examination, is not complied with. There are certain exceptions to the above rule by which hearsay evidence is admitted when the circumstances are such as to make the truth of the evidence highly probable. The exceptions are admissions, confessions, dying declarations, declarations against interest, ancient deeds, declarations concerning matters of public interest, boundary, matters of pedigree, the res gestos, and perhaps some others.\u201d Lockhart\u2019s N. 0. Handbook of Evidence, par. 138, pp. 156-157. It will be noted that evidence of the general reputation for mental capacity is not enumerated among the exceptions to the rule that hearsay evidence is inadmissible. We have also scanned our decisions and can find no precedent or reason for excepting such evidence from the general rule. \u201cOn the issue of testamentary capacity, . . . evidence as to the testator\u2019s reputation for sanity or insanity is inadmissible.\u201d 68 C. J., par. 63, p. 458. See, also, Thompson v. Ish, 99 Mo., 160; Brinkman v. Rueggesick, 71 Mo., 553; Pidcock v. Potter, 68 Pa., 342; In re Wah-kon-tah-he-um-pah\u2019s Estate, 109 Okl., 126; In re Lawrence\u2019s Estate, 286 Pa., 58.\nThe evidence as admitted by the court also contravenes the principle frequently enunciated by this Court that particular facts cannot be proven by general reputation. S. v. Holly, 155 N. C., 485; Edwards v. Price, 162 N. C., 243; S. v. Nance, 195 N. C., 47. Here the propound-ers were permitted to prove by evidence of general reputation that the testator was a man of good business ability. While it is true that upon an issue of devisavii vel non a witness may testify as to his opinion of the mental capacity of the testator from his observation and contact with him, this does not extend to allowing a witness to give hearsay testimony as to the ability of the testator by testifying as to his general reputation for mental ability.\nFor the error assigned, the caveators are entitled to a\nNew trial.", "type": "majority", "author": "Schenck, J." } ], "attorneys": [ "Folger & Folger for caveators, appellants.", "W. B. Badgeit, D. L. Hiatt, and H. C. Bivens for propounders, ap-pellees." ], "corrections": "", "head_matter": "In re Will of PETER R. NELSON.\n(Filed 30 June, 1936.)\nWills D d: Evidence H a \u2014 Testimony as to general business reputation of testator held incompetent on issue of mental capacity.\nTestimony of the general reputation of testator in the community as a business man is incompetent on the issue of mental capacity, such evidence not coming within any of the exceptions to the hearsay rule, and the testimony admitted in this case as to testator\u2019s business sagacity in particular types of transactions is held incompetent on the further ground that it violates the rules that particular facts may not be proven by general reputation. The rule permitting opinion testimony as to testator\u2019s mental capacity, based upon the witness\u2019 observation and contact with testator, distinguished.\nAppeal by the caveators from Hill, Special Judge, at October Term, 1935, of Surry.\nNew trial.\nThis is a proceeding for the probate of three paper writings propounded as the last will and testament of Peter R. Nelson and codicils thereto.\nThe issues were answered in favor of the propounders, and from judgment based upon the verdict the caveators appealed, assigning errors.\nFolger & Folger for caveators, appellants.\nW. B. Badgeit, D. L. Hiatt, and H. C. Bivens for propounders, ap-pellees." }, "file_name": "0398-01", "first_page_order": 464, "last_page_order": 466 }