{ "id": 8606104, "name": "In re Will of MAGGIE NIPSON LOMAX", "name_abbreviation": "In re Will of Lomax", "decision_date": "1944-09-20", "docket_number": "", "first_page": "459", "last_page": "462", "citations": [ { "type": "official", "cite": "224 N.C. 459" } ], "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": "64 S. E., 379", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "150 N. C., 487", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271704 ], "opinion_index": 0, "case_paths": [ "/nc/150/0487-01" ] }, { "cite": "90 S. E., 681", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "172 N. C., 520", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11254463 ], "opinion_index": 0, "case_paths": [ "/nc/172/0520-01" ] }, { "cite": "221 N. C., 120", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626368 ], "opinion_index": 0, "case_paths": [ "/nc/221/0120-01" ] }, { "cite": "213 U. S., 257", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8288801 ], "opinion_index": 0, "case_paths": [ "/us/213/0257-01" ] }, { "cite": "86 S. E., 794", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "170 N. C., 58", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657137 ], "opinion_index": 0, "case_paths": [ "/nc/170/0058-01" ] } ], "analysis": { "cardinality": 435, "char_count": 7010, "ocr_confidence": 0.502, "pagerank": { "raw": 3.177280415765875e-07, "percentile": 0.8642969146077628 }, "sha256": "18a683be93ce2823e1cfac49cf1564b44a611851926595a5984ebbf9b928687e", "simhash": "1:fe07309792ac3c3e", "word_count": 1230 }, "last_updated": "2023-07-14T21:53:33.218655+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re Will of MAGGIE NIPSON LOMAX." ], "opinions": [ { "text": "DeviN, J.\nWhile considerable latitude is permitted in the reception of opinion evidence as to mental capacity from witnesses who base their opinions upon personal association, transactions and conversations (In re Rawlings\u2019 Will, 170 N. C., 58, 86 S. E., 794), this rule should not be expanded to include mere expressions of opinion not based on circumstances importing mental incapacity, nor should the witnesses be permitted to answer questions as to whether the person whose mental capacity is the subject of inquiry had sufficient mental capacity to make a will or execute a deed, when neither by the question nor by instructions of court or counsel have the witnesses been apprised of what is in law meant by, or required to constitute, mental capacity sufficient to make\" a will.\n,To ask a witness whether in his opinion the person under investigation was or was not competent to make a will is improper for the reason that such question assumes the witness knows, or leaves to him to determine for himself, what is or should be the proper test of mental capacity to execute a valid will. Rogers Expert Testimony, 3rd Ed., sec. 206. The obvious objections to allowing a witness to answer the general question as to whether or not a person was capable of making a will or contract have led tbe courts generally to exclude tbe conclusions of witnesses in answer to sucb questions.\n\u201cBy all courts a mere abstract statement tbat tbe person was or was not \u2018capable\u2019 of making a will or a contract or a deed seems to be beld improper; but there is a great contrariety of ruling upon Other fcTrms of statement.\u201d Wigmore Ev., sec. 1958. Capacity to make a will is not a simple question of fact. It is a conclusion which the law draws from certain facts as premises. Lawson Expert & Opinion Ev., page 155. Hence, the witness must state the facts gained from personal obsefvation as a predicate for the expression of his opinion. Turner v. Am. Security & Tr. Co., 213 U. S., 257; Smoot Law of Insanity, sec. 599.\nFailure to observe this rule, in the admissions of the evidence elicited by the questions objected to in the- case at bar, has, we think, prejudiced the propounder\u2019s cause. Several non-expert witnesses were permitted to say the decedent at the time of executing the paper writing propounded did not have mental capacity to make a will, apparently without understanding what degree of mental capacity was necessary to constitute legal competency.\nWhile the court in his charge to the jury properly defined mental capacity in accordance with the decisions of this Court (Carland v. Allison, 221 N. C., 120, 19 S. E. (2d), 245; In re Broach\u2019s Will, 172 N. C., 520, 90 S. E., 681; In re Thorp, 150 N. C., 487, 64 S. E., 379), we think there was prejudicial error in the admission of testimony, necessitating a new trial, and it is so ordered.\nNew trial.", "type": "majority", "author": "DeviN, J." } ], "attorneys": [ "Cecil C. Jackson and George F. Meadows for caveators.", "Carl W. Greene for propounder." ], "corrections": "", "head_matter": "In re Will of MAGGIE NIPSON LOMAX.\n(Filed 20 September, 1944.)\n1. Evidence \u00a7 46\u2014\nWhile considerable latitude is permitted in the reception of opinion evidence as to mental capacity from witnesses who base their opinion on personal association, this rule should not be expanded to include mere expressions of opinion not based on circumstances importing mental incapacity.\n2. Wills \u00a7 23b: Evidence \u00a7 45a\u2014\nA mere abstract statement by a witness that a person under investigation, in his opinion, was or was not competent to make a will, or a contract or a deed, is improper and inadmissible. Capacity to make a will or contract is not a simple question of fact but a conclusion which the law draws from certain facts gained from personal observation as a predicate for the expression of opinion.\nAppeal by propounder from Neitles, J., at April Term, 1944, of BuNcombe. New trial.\nIssue of devisavit vel non decided in favor of caveators.\nTbe decedent, an unmarried colored woman, bad worked for many years as a chambermaid in an Asheville hotel and had accumulated an estate of some ten thousand dollars. In August, 1940, she suffered a slight stroke and ceased her employment. In January, 1941,'she went to the office of an attorney and gave directions for the preparation of her will, and on 8 January, 1941, signed it in the attorn\u00e9y\u2019s office, retaining the will in her possession. She was then 72 years of age. The will contained many bequests of various kinds of property to some twenty-five persons, some of them relatives. She left surviving two sisters and a number of nieces\u2019 and nephews. The propounder B. R. Quick was named executor. Caveat was filed by certain nieces and nephews. Maggie Lomax died in January, 1944.\nThe validity of the paper writing propounded as the last will and testament of Maggie Nipson Lomax was contested on the ground of mental incapacity. An issue addressed to this determinative question was submitted to the jury in the following form: \u201cAt the time of signing and executing said paper writing, did Maggie Nipson Lomax have sufficient mental capacity to make and execute a valid last will and testament?\u201d To this the jury answered \u201cNo.\u201d.\nIn support of their contention caveators over objection were permitted to ask and the witnesses to answer the following questions:\nWitness Frank Stephens: Q. \u201cDo you think she was capable of disposing of her property by will, realizing the consequences and effect of her acts in 1941 ? A. No. At the time of her death Maggie had a home and two lots on Biitmore Avenue, a home on Pine Grove, and the house she sold on Livingston Street which is not paid for. She should have between $6,000 and $7,000 in cash money. She had two diamond rings, a lot of silverware and chinaware.\u201d\nWitness Edgar Penland: Q. \u201cState whether or not Maggie in your opinion was mentally capable of disposing of her property by will 8 January, 1941. A. She was not.\u201d\nWitness Melvin Cannon: Q. \u201cIn your best judgment, do you think she was capable of disposing of her property? A. No, sir. Q. About January 8, 1941? A. No, sir.\u201d\nWitness John Ward: Q.- \u201cIn your opinion, did Maggie Lomax at the time have sufficient mental capacity to make a will? A. At that particular time in my opinion she did not.\u201d\nWitness Nora Fair: Q. \u201cDid she know what property she had? A. I don\u2019t know. Q. In December, 1940, or January, 1941, did Maggie Lomax have mental capacity to make a will disposing of her property? A. No, I don\u2019t think so.\u201d\nWitness Gladys Thomas: Q. \u201cFrom your conversation with Maggie Lomax in 1940 and 1941, do you have an opinion as to whether or not she was able mentally to dispose of her property by will? A. I have. Q. Describe her mental condition the latter part of 1940 and early part of 1941. A. Her mentality was not good because \u2014 I said that I don\u2019t think her mind was good because she would tell one thing and she would tell you the same thing several times. In my judgment I don\u2019t think she was capable of making a will January 8, 1941.\u201d\nFrom judgment for caveators on the verdict propounder appealed.\nCecil C. Jackson and George F. Meadows for caveators.\nCarl W. Greene for propounder." }, "file_name": "0459-01", "first_page_order": 507, "last_page_order": 510 }