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      "IN THE MATTER OF THE WILL OF MARGARET STRADER KNIGHT, Deceased."
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        "text": "Mooke, J.\nIn the record on this appeal caveators make eleven assignments of error based on eighteen exceptions. However, they did not bring forward in their brief the fourth assignment of error. Therefore this assignment and the exceptions upon which it is based are deemed 'abandoned. Rule. 28, Rules of Practice in the Supreme Court, 221 N.C. 562; Darroch v. Johnson and Colville v. Johnson, 250 N.C. 307, 311, 108 S.E. 2d 589.\nThe first assignment of error is based on the exclusion of certain evidence which caveators sought to elicit on cross-examination from the clerk of the Superior Court of Rockingham County. Counsel for caveators propounded the following question:\n\u201cI\u2019ll ask you, Mr. Clerk, if you didn\u2019t declare Mrs. Margaret Strader Knight incompetent?\u201d\nCounsel for propounder objected to the question and the court required the jury to retire. In the absence of the jury, it was revealed that there had been a proceeding before the clerk to have the testatrix declared incompetent, that a hearing was had therein before the clerk and a jury on the day before the testatrix died, that she was declared incompetent by the verdict of the jury, and that pursuant to the verdict the clerk signed a judgment declaring her incompetent. The court ruled the question incompetent but -stated that the judgment might be identified for later introduction. Oaveators were not offering evidence at this stage of the trial. Counsel for oaveators insisted that the question was proper and the witness should be permitted to answer it in the presence of the jury. The court ruled: \u201cYou can\u2019t ask him anything that is going to reflect that, judgment.\u201d For the purposes of the record the following questions were propounded to .the witness and answered by him in the absence of the jury:\n\u201cQ. Answer that question.\n\u201cA. I signed the judgment after the jury 'brought in' the verdict that she was mentally incompetent.\n\u201cQ. Was there a jury trial to decide her competency on May 29, 1958? .\n\u201cA. There was a jury trial. I don\u2019t remember the exact date because I don\u2019t have the papers before me.\n\u201cQ. What was the result of that jury trial as to her competency?\n\"A, The jury declared her incompetent from want of understanding,- to manage her own affairs.\n\u201cQ. Did you in accordance with the jury\u2019s verdict -sign a judgment to -that effect?\n\u201cA. I did.\u201d\nObjections to these questions and answers were sustained.\nThe rulings of the court must be sustained under the \u201cBest Evidence Rule.\u201d The judgment in the proceeding before the clerk was in writing and a matter of record. The judgment itself was the best evidence of what it contained. It was improper to have the clerk declare the effect thereof. It is not in the record on appeal and was not offered in evidence. It may well be that it contained matter considered by caveators to be harmful to their cause. In any event, the cav-eators had an opportunity to identify and offer it but failed to do so. \u201cA writing is the best evidence of its own contents.\u201d North Carolina Evidence \u2014 Stansbury, sec. 190, p. 411.\nIf the judgment in the proceeding had been properly identified and offered, it is our opinion that its exclusion by the court would not have been prejudicial error under the circumstances in this ease. It is true that this Court has held that \u201cwhere the issue is the mental capacity of the testator at the time of making the will, evidence of incapacity within a reasonable time before and after is relevant and admissible.\u201d In re Will of Stocks, 175 N.C. 224, 226, 95 S.E. 360. And this Court has declared that adjudications of insanity are competent in evidence in civil cases. S. v. Duncan, 244 N.C. 374, 379, 93 S.E. 2d 421. But an adjudication of mental incompetency raises no presumption of mental incapacity antedating the adjudication. At most it is merely evidence to be considered by the jury on the issue of mental incapacity and it must not be unreasonably remote in time. Anno: 68 A.L.R. 1310, 1314. \u201cAs a general rule, mere proof of the existence of a condition or state of facts at a given time does not mise a presumption that the same condition or state of facts existed on a former occasion.\u201d 2 N. C. Index \u2014 Strong, Evidence, sec. 4, p. 248; Sloan v. Light Co., 248 N.C. 125, 132, 102 S.E. 2d 822; Smith v. Oil Corporation, 239 N. C. 360, 366, 79 S. E. 2d 880; Childress v. Nordman, 238 N.C. 708, 712, 78 S.E. 2d 757.\nOrdinarily a judgment declaring mental incompetency, rendered eleven months subsequent to the execution of the instrument in question, is relevant and competent. But the question as to whether or not such adjudication was made within a reasonable time depends on the circumstances of the case and is within the sound discretion of the court. In re Washington\u2019s Estate, 46 S.E. 2d 287, 289 (S.C. 1948); Ailes v. Ailes, 11 N.E. 2d 73, 74 (Ind. 1937). In the case at bar, it appears from the record as a whole that the testatrix was 83 year\u00ae of age at the time of her death, that during the last two years of her life she had been hospitalized a number of times, that she had suffered a broken hip about a year before her death and had been treated for pneumonia and other ailments. She was judicially declared mentally incompetent only when she was in extremis. She died the day following the adjudication. Had the judgment been offered in evidence, its admission would not have constituted error, and its exclusion, if error, would not have been prejudicial error under the circumstances.\nThe second assignment of error relates to the admission in evidence, over the objection of caveators, of the record of the probate in common form of the purported will of Margaret Strader Knight. The record of the probate of a will in common form is incompetent evidence in a caveat proceeding even for the purpose of corroborating propound-er\u2019s witnesses. In re Will of Etheridge, 231 N.C. 502, 504, 57 S.E. 2d 768. However, this Court has held that where the caveators attach to their pleadings a copy of such probate and incorporate it by reference, they cannot be heard to object to its admission in evidence. In re Will of Crawford, 246 N.C. 322, 324, 98 S.E. 2d 29. However, in the instant case the probate was not attached to or incorporated in caveators\u2019 pleadings, and the ruling in the Crawford case does not apply here.\nHowever, the clerk of Superior Court, while testifying for pro-pounder, read to the jury the entire record of the probate in common form of the purported will of Margaret Strader Knight. Caveators interposed no objection and proceeded to cross-examine the clerk in detail concerning the probate. They thereby waived their right to object to the admission of the probate proceedings. An objection is waived when the same evidence or evidence of the same import is admitted without objection. Tucker v. Moorefield, 250 N.C. 340, 344, 108 S.E. 2d 637; Price v. Gray, 246 N.C. 162, 165, 97 S.E. 2d 844; Everett v. Sanderson, 238, N.C. 564, 567, 78 S.E. 2d 408.\nThe .third and sixth assignments of error are based on exceptions taken by caveators to the rulings of the trial judge in sustaining objections to certain questions propounded to witnesses by counsel for caveators. The record does not disclose what the witnesses would have testified had they been permitted to answer. Therefore, there is no basis for consideration of these exceptions and no prejudicial error has been shown. Board of Education v. Mann, ante, 493; Highway Commission v. Privett, 246 N.C. 501, 505 99 S.E. 2d 61.\nThe fifth assignment of error relates to the admission in evidence, over the objection of caveators, of a deed of trust executed by the testatrix on 1 October, 1955. This evidence, tending to show a business transaction of testatrix relative to her property, was competent on the issue of mental capacity. Anno: 82 A.L.R. 973; 68 C. J., Wills, sec. 72, p. 465.\nThe seventh, eighth, ninth and eleventh assignments of error are based on exceptions to the charge. When read contextually the charge is free of prejudicial error. The court gave the jury full instructions with respect to the principles of law applicable to the issues and evidence and properly placed the burden of proof. Equal stress was given to the evidence and contentions of the parties. Caveators had opportunity to request amplification or additional instructions if deemed advisable. Failure to make the request waived the right to object. In re Will of Crawford, supra, at page 325.\nThe tenth assignment of error is based on exception to the signing of the judgment. It is a formal exception and because of our decision herein requires no discussion.\nIn the trial of this cause we find\nNo Error.",
        "type": "majority",
        "author": "Mooke, J."
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    ],
    "attorneys": [
      "Brown, Scurry, McMichael & Griffin for Caveators, appellants.",
      "J. C. Johnson, Jr. and Bethea & Robinson for Propounder, appellee."
    ],
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    "head_matter": "IN THE MATTER OF THE WILL OF MARGARET STRADER KNIGHT, Deceased.\n(Filed 2 July, 1959.)\n1. Appeal and Error \u00a7 38\u2014\nThe failure to- bring forward an assignment of error in the brief effects an abandonment of the assignment and the exceptions upon which it is based. Rules -of Practice of the Supreme Court, No. 28.\n2. Evidence \u00a7 26: Wills \u00a7 23h\u2014\nThe judgment in a lunacy proceeding is itself the best evidence of its contents, -and testimony of a witness in regard thereto is properly excluded in a caveat proceeding predicated upon mental incapacity of \u2022the testatrix.\n3. Wills \u00a7 23b\u2014\nEvidence of mental incapacity within a reasonable time before and after the execution of the writing offered for probate is competent upon the issue of the mental capacity of testator.\n4. Insane Person \u00a7 3: Evidence \u00a7 4: Wills \u00a7 23b\u2014\nAn adjudication of mental inco-mpetency raises no presumption of mental incapacity anti-dating the adjudication but is competent as evidence upon the question provided such adjudication is rendered within reasonable proximity in time to the date in question, and whether it is within a reasonable time is a question addressed to the sound discretion of the trial court, to be determined upon the facts and circumstances of each particular case.\n5. Same\u2014\nTestatrix was adjudged mentally incompetent to handle her affairs some eleven months after the date the writing propounded was executed. It appeared that at the time of the adjudication testatrix was aged and infirmed and that she died the day after the adjudication. Held: Under the circumstances, the exclusion of the judgment in \u00a1the lunacy proceeding would not he prejudicial error, since whether the judgment was rendered within' reasonable proximity in time to the date in question is a matter addressed to the sound discretion of the trial count.\n6. Wills \u00a7 23a\u2014\nWhile the probate of a will in common form is incompetent in evidence in a caveat proceeding, even for the purpose of corroborating propounder\u2019s witnesses, caveators waived their objection to its admission when they failed to object to testimony of a witness for propounder in reading the entire fiecord of the probate proceeding and in cross-examining the witness in regard thereto.\n7. Appeal and Error \u00a7 41\u2014\nAn' objection to the admission of evidence is waived when the same evidence or evidence of the same import is thereafter admitted without objection.\n8. Same\u2014\nThe exclusion of testimony cannot be held prejudicial when the record fails to disclose what the witness would hiave answered if permitted to testify.\n9. Wills \u00a7 23b\u2014\nThe admission of evidence of a deed of trust executed by testatrix less than two years prior to the execution of the writing propounded is competent on the issue of mental capacity.\n10. Appeal and Error \u00a7 42\u2014\nAn exception to the charge will not be sustained when it is free of prejudicial error when read contextually.\n11. Appeal and Error \u00a7 24\u2014\nWhere .the court gives correct instructions on ail material aspects of the case, the failure to request amplification or additional instructions waives exceptions to the charge in regard thereto.\nAppeal by caveators from Crissman, J., October 1958 Civil Term Of ROCKINGHAM.\nMargaret Strader Knight died 30 May, 1958. Her husband predeceased her. Her five sons and five daughters survived her. She left an attested writing, dated 26 June, 1957, purporting to be her last will and testament, in which she devised and bequeathed her entire estate to one of her sons, Thomas A. Knight. This paper writing was, on 25 June, 1958, admitted to probate in common form as the last will and testament of Margaret Strader Knight by the clerk of the Superior Court of Rockingham County. In due time a caveat was filed by eight of the children of .testatrix, to wit: O. W. Knight, Hazel K. Johnson, D. F. Knight, Catherine K. C'obb, Juanita K. Pearman, John M. Knight, Dorothy K. Rakestraw and Miriam K. Simpson. The caveat alleged that the paper writing was not the last will and testament of Margaret Strader Knight for that her signature thereto was obtained through undue influence and duress of Thomas A. Knight, and for that she did not have sufficient mental capacity to execute a valid will andl testament.\nThis cause came on for trial and evidence was offered by the pro-pounder and caveators. Appropriate issues were submitted to and answered by the jury. The verdict of the jury was in favor of the validity of the will. Accordingly, the court entered judgment declaring the paper writing to be the last will and testament of Margaret Strader Knight and admitting the same to probate in solemn form.\nFrom said judgment caveators appealed and assigned error.\nBrown, Scurry, McMichael & Griffin for Caveators, appellants.\nJ. C. Johnson, Jr. and Bethea & Robinson for Propounder, appellee."
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