{
  "id": 8614413,
  "name": "In the Matter of: The Will of MAGGIE NIPSON LOMAX, Deceased",
  "name_abbreviation": "In re the Will of Lomax",
  "decision_date": "1945-11-21",
  "docket_number": "",
  "first_page": "592",
  "last_page": "595",
  "citations": [
    {
      "type": "official",
      "cite": "225 N.C. 592"
    }
  ],
  "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": "224 N. C., 459",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8606104
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/224/0459-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 427,
    "char_count": 9265,
    "ocr_confidence": 0.489,
    "pagerank": {
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    "simhash": "1:bdcaa1a62e3c0952",
    "word_count": 1618
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  "last_updated": "2023-07-14T21:52:44.450219+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "In the Matter of: The Will of MAGGIE NIPSON LOMAX, Deceased."
    ],
    "opinions": [
      {
        "text": "Winborne, J.\nThe main points assigned as error by propounders on this appeal are substantially these:\n1. In permitting lay witnesses to express opinion that Maggie Nipson Lomax did not have sufficient mental capacity to make a will.\n2. In charging the jury as indicated in foregoing statement of the facts.\nAs to the first, this question was the question for decision, and decided on the first appeal in this case\u2014224 N. C., 459, 31 S. E. (2d), 369, and for which the first new trial was then ordered. It is there said, in part, that \u201cCapacity to make a will is not a simple question of fact. It is a conclusion which the law draws from certain facts as premises. . . . Hence the witness must state the facts gained from personal observation as a predicate for the expression of his opinion. . . . Failure 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 nonexpert witnesses were permitted to say that 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.\u201d\nIn the present cas\u00e9 the errors are (1) in refusing to strike the answer of the lay witness expressing .the opinion that Maggie Nipson Lomax did not have sufficient mental capacity to make a will, which was not responsive to the question asked, and (2) in overruling objection to the question asked by the court: \u201cDid she have mentality sufficient to make a will ?\u201d by which a negative answer was elicited.\nNow as to the charge: While the court had theretofore told the jury that \u201cgreater weight of the evidence\u201d relates to the credibility of evidence offered, and not to the quantity of it, the portions to which excep-tiou is taken may tend to confusion in that, the explanation of what is meant by the clause \u201cwhere the burden is on the caveators to satisfy you by the greater weight of evidence,\u201d requires that they offer \u201cmore evidence, however slight it may be, than the propounders have offered.\u201d To this caveators alone, upon adverse verdict, might have complained. But the court went further and instructed the jury that \u201cthe same rule applies to the propounder Quick and others, where the court puts the burden on them, etc.\u201d However, upon the admissions of caveators, and the fact that the answer to the fourth issue follows as a matter of law the answers to the second, or to the second and third issues, as the case may be, burden of proof of which was on caveators, there was no burden of proof on propounders. Therefore, the second portion of the instruction tended to and may have confused the jury.\nIn conclusion let it be noted that much of the argument in this Court by propounders is devoted to the probative value of testimony offered on the trial in Superior Court. This is a matter only for the jury. And though it becomes necessary on this appeal to order a new, and fourth trial, we may not, and do not express or even intimate an opinion on the facts. However, as there are rules by which the trial of such cases is to be governed, the losers, whoever they may be finally, must lose only when the record of the trial shows that, in all material aspects, it was conducted in accordance with the rules. Hence, for prejudicial error in calling the plays, so to speak, and for this reason alone, there must be a\nNew trial.",
        "type": "majority",
        "author": "Winborne, J."
      }
    ],
    "attorneys": [
      "Carl W. Greene and Smathers & Meehins for propounder, appellant.",
      "Geo. F. Meadows, W. W. Candler, and Cecil C. Jaclcson for caveators, appellees."
    ],
    "corrections": "",
    "head_matter": "In the Matter of: The Will of MAGGIE NIPSON LOMAX, Deceased.\n(Filed 21 November, 1945.)\n1. Wills \u00a7 23b: Evidence \u00a7 46\u2014\nCapacity to make a will is not a simple question of fact. It is a conclusion which the law draws from certain facts as premises. Hence the nonexpert witness must state the facts gained from personal observation as a predicate for the expression of his opinion on such capacity. Failure to observe this rule is prejudicial error.\n2. Evidence \u00a7 6\u2014\nThe \u201cgreater weight of the evidence\u201d relates to the credibility of evidence offered, and not to the quantity.\n3. Sa\u00edne: Wills \u00a7 25\u2014\nIn an action on the issue of devisavit vel non, where the court charged the jury that the rule, as to the greater weight of the evidence required of the propounders, means that they must offer more evidence, however slight it may be, than the caveators have offered, there is reversible error.\nAppeal by propounders from Rousseau, J., at May Term, 1945, of BUNCOMBE.\nCivil action, an issue of devisavit vel non.\nWhen tbis case was called in the Superior Court for the third trial ordered on the last and second appeal, ante, 31, 33 S. E. (2d), 63, and to which this appeal relates, the caveators admitted that Maggie Nipson Lomax, the deceased, signed the instrument propounded im-pr\u00f3bate, and that same was properly witnessed and had been theretofore admitted to probate in common form before the clerk of the Superior Court of Buncombe County; but they attack the instrument for her mental incapacity and by reason of fraud and undue influence. The caveators thereupon assumed the burden to prove the grounds of attack, and in accordance therewith went forward with the introduction of testimony.\nIn the course of taking testimony, caveators asked each of numerous witnesses offered by them, a question, bearing upon the issue of mental capacity of Maggie Lomax to make a will on the date of the instrument probated in common form, substantially as follows:\n\u201cFrom your observation and conversation with Maggie Nipson Lomax, do you have an opinion satisfactory to yourself as to whether or not on January 8, 1941, she had sufficient mental capacity to know the nature and extent of her property, to know who were the natural objects of her bounty, and to realize the full force and effect of the disposition of her property by will ?\u201d This question being answered in the affirmative, the witness was asked, \u201cWhat is your opinion ?\u201d This question was generally the subject of objection' and exception by propounders, and to some of the answers propounders objected and moved to strike same, upon denial of which exception was taken and is now assigned as error. For example, the witness Grace McLendon, a niece, answered: \u201cI am of the opinion that Aunt Maggie did not have it to make a will in 1941, because she was not able to leave the house.\u201d Exception No. 5.\nIn other instances propounders objected and excepted to the question as to \u201cWhat is your opinion?\u201d and moved to strike the answer expressing opinion that \u201cshe did not have sufficient mental capacity to make a will,\u201d but do not bring forward as an assignment of error exception taken to the denial of the motions. In other instances objection was taken to the question only, and no motion was made to strike the answer expressing opinion that \u201cshe did not have sufficient mental capacity to make a will.\u201d\nAnd when the witness Whit New was testifying, he gave as his opinion that she was \u201ctoo weak to do anything.\u201d Whereupon, the court asked this question: \u201cDid she have mentality sufficient to make a will ?\u201d Exception No. 19. The witness answered: \u201cNo, sir, she didn\u2019t have that mind.\u201d\nThese issues were submitted to the jury:\n1. Was the paper writing offered for probate as the last will and testament of Maggie Nipson Lomax, deceased, signed and executed according to law?\n2. If so, did Maggie Nipson Lomax on January 8, 1941, have sufficient mental capacity to make a will?\n3. If so, was the execution of said paper writing procured by fraud or undue influence?\n4. Is the paper writing and every part thereof, the last will and testament of Maggie Nipson Lomax?\nAnd the court in charging the jury on these, after reading the first issue, and instructing the jury, upon admissions of caveators, to answer it \u201cYes,\u201d proceeded to charge in relation to the second and third issues. In the course of so doing, and after defining what is \u201cgreater weight of the evidence,\u201d the court continued with these instructions to which exceptions are taken and assigned for error: (1). \u201cWhere the burden is on the caveators to satisfy you by the greater weight of the evidence\u2014 that means they must offer more evidence, however slight it may be, than the propounders have offered.\n(2) \u201cThe same rule applies to the propounder Quick and others where the court puts the burden on them by the greater weight of the evidence, and they would have to satisfy you by the greater weight of the evidence.\u201d\nThereupon the court instructed the jury as to the answer to be given to the fourth issue depending upon the answers made to the second and third issues; and further charged that if the jury answered the second issue \u201cNo/\u2019 the third and fourth issues need not be answered.\nThe jury for verdict answered \u201cYes\u201d to the first issue, as directed by the court, and \u201cNo\u201d to the second issue. Thereupon, the court entered judgment that the paper writing offered for probate as the last will .and testament of Maggie Nipson Lomax is not such will, that the same is null, void and of no effect, and is set aside and declared void, etc.\nPropounders appeal therefrom to Supreme Court and assign error.\nCarl W. Greene and Smathers & Meehins for propounder, appellant.\nGeo. F. Meadows, W. W. Candler, and Cecil C. Jaclcson for caveators, appellees."
  },
  "file_name": "0592-01",
  "first_page_order": 640,
  "last_page_order": 643
}