The opinion
BeogdeN, J.,
dissenting: This case has been given earnest and careful consideration by the Court, and the opinion sets forth clearly the conclusion reached and the reasons supporting it. However, I cannot escape the conviction that therq is vital error upon the record affecting not only the merits of this particular case, but involving also the method or standard by which testamentary capacity may be determined.
*600 A brief survey of the facts is perhaps necessary to develop the proposition of law which I think was erroneously applied by the trial judge.
On 5 August, 1924, the testator wrote to his nephew a letter in regard to a will. The pertinent part of this letter is as follows: “I give my wife our homeplace and contents complete. After an annuity to Pauline, I give my entire personal estate to the Raleigh Savings Bank and Trust Company, as trustee, to handle same and pay entire income to my wife during her life. I also give her the power to make a will and dispose of as much as fifty thousand of my estate in any way she may wish. After her death I bequeath a substantial legacy to said trustee for each of your daughters to be kept at compound interest and paid over as each daughter arrives at 21 years of age. If any die before then her legacy to be divided among the surviving sisters. I also give your wife a nice legacy in token of my sincere love for her. The residuum of my estate is to be divided per capita among my nephews and nieces. The share going to Brown Shepherd and Eleanor C. Whitney to be retained until death of their respective mothers and income paid to the mothers during their lives. I have tried to be fair to all my relatives, but as your lovely girls, whom I dearly love, are not my nieces, but great nieces, I have given them specific legacies. My wife has been dealt with so very liberally that I am sure she will not dissent, but if she does, your girls and Nettie will get their legacies anyway.” At the time this letter was written the testator was admittedly sane. On the 5th day of January, 1926, the testator executed a new will bequeathing and devising all of his real and personal property to his wife. This paper-writing is the subject of the controversy.
The trial judge permitted the letter of 5 August to be offered in evidence and read to the jury. The witness, Mr. A. D. McLean, had previously testified that in his opinion the testator did not have sufficient testamentary capacity on 5 January, 1926. When the letter of 5 August was offered in evidence the propounder objected. The witness was asked this question: “Do you base your opinion of his mental condition on 5 January, 1926, in whole or in part on that letter?” The witness answered, “No. I will say so as to be understood: I know from, this letter and from other sources that on 5 January, 1926, in my opinion the will does not represent what Judge Brown intended. My opinion of his condition on 5 January, 1926, is in part based on this letter, . . . but it is not the only basis of my opinion. It is a part of the basis for my opinion, . . . but the letter enters into my opinion and forms part of the basis of that opinion in connection with other facts. I know from the letter and otherwise what Judge Brown intended to do with his estate.” The record shows this entry: “The court admits the letter in evidence in support of or as a basis to Mr. *601 McLean’s opinion, in connection witb other circumstances as to the mental capacity of Judge Brown.” The record further shows this entry: “The letter is read. The jury is instructed by the court that this letter is offered in evidence in connection with other testimony of Mr. McLean with reference to the grounds upon which he forms the opinion of the mental condition of Judge Brown, and that the jury will consider it for no other purpose.” It further appears that the witness, McLean, was permitted to testify as to a conversation with the testator in July, 1925. The propounder objected. The record shows this entry: “Propounder objects to all of this line of testimony, and asks for a preliminary examination. The court rules that it may be had in cross-examination and admits this testimony in the same way and for the same purpose for which the letter ivas admitted, witness having stated to the court that the conversations with Judge Brown and the letter received from him form a part of the basis for his opinion that Judge Brown was mentally incompetent on 5 January, 1926, as stated
Thereafter the trial judge arrayed the contentions of the caveators with respect to the alleged will referred to in the letter of 5 August, 1924, and charged the jury as follows: “The court charges you, upon these contentions, that it is the right and duty of the jury to consider them and to contrast the two alleged wills as bearing upon the issue of mental capacity and the testamentary disposition which Judge Brown made or intended to make of his property.” Again the trial judge charged: “The court charges you that a desire on the part of Judge Brown, if you find from the evidence it existed, that the bulk of his estate should ultimately go to his own people, namely, his nieces and nephews, was not unnatural or unreasonable, but both natural and proper, if in accordance with his wishes, and if you find from the evidence by its greater weight, that the desire to avoid dissent by his wife existed on his part, that he intended the bulk of his estate to go to his own people, but wished it during her lifetime and for her and their benefit and protection to be administered by said Bank and Trust Company, as trustee or executor, the same should be considered by the jury as bearing upon the issue of mental capacity on 5 January, 1926, when the alleged last will was made.”
It is apparent from the portions of the record quoted that the letter lies at the heart of this case. The caveators took the position that the letter showed a totally different testamentary intention from that expressed in the last will of the testator, and it was used throughout the trial as one of the standards of testamentary capacity by which to measure the validity of the will of 5 January, 1926. If the introduction of this letter was error, it was therefore grievous and disastrous so far as the propounder was concerned.
*602 As pointed out in tbe opinion of tbe Court, it is undoubtedly established law in tbis State tbat a nonexpert witness may give in evidence bis opinion as to tbe mental capacity of a testator, and where tbis opinion has been formed from declarations or communications between tbe witness and tbe deceased, it is competent to offer in evidence tbe facts constituting tbe basis of tbe opinion. Tbe Court declares tbe law as follows: “It has been generally held tbat declarations, oral or written, by tbe deceased may be shown in evidence upon tbe trial of an issue involving bis mental capacity, whether such declarations were made before, at or after tbe date on which it is contended tbat tbe deceased was of unsound mind.” Tbe witness testified tbat tbe letter of 5 August, 1924, constituted “a part of tbe basis” of bis opinion as to tbe mental incapacity of tbe testator on 5 January, 1926. Tbe court admitted it, and stated to tbe jury tbat it was admitted because it constituted a part of tbe ground of tbe opinion of mental incapacity - entertained by tbe witness. Now tbe declaration of 5 August, 1924, upon its face, was tbe perfectly sane declaration of a perfectly sane man. Can a sane declaration of a sane man be evidence of insanity? Can life be evidence of death? Can light be evidence of darkness? Can health be evidence of sickness? Can sanity be evidence of insanity? To my mind to ask these questions is to answer them in tbe negative. I conceive tbe law to be tbat tbe declarations of a testator made prior to tbe execution of a will, in controversy, are admissible in evidence upon tbe question of mental capacity, but such declarations must of 'themselves contain evidence of mental disorder or bear upon their faces tbe indelible stamp of mental impairment. I think, too, tbat tbe law of tbis State supports tbis contention. Tbe two leading cases upon tbe subject of declarations are McLeary v. Norment, 84 N. C., 237 , and In re Burns’ Will, 121 N. C., 337 . Both of these cases are relied upon in tbe opinion of tbe Court. In tbe Norment case tbe action was brought to set aside a deed made on 2 February, 1867, upon tbe ground of mental incapacity and undue influence. A witness, Harriet Alexander, was permitted to testify as to her opinion of her aunt’s mental capacity to make a deed, stating tbat tbe grantor bad been mentally incapable since a stroke of paralysis in 1859. Tbe witness testified tbat her opinion was formed from conversations and communications between them. Tbe witness was asked to give tbe basis of her opinion, and tbis testimony was excluded, and for tbe rejection thereof tbe Court granted a new trial. Therefore, it did not appear in tbat case tbat tbe declarations themselves bore evidences of mental disorder. However, tbe record in tbat case discloses tbat another witness testified tbat in 1865, prior to tbe making of said deed, tbe conversations of tbe grantor “were vague and meaningless. Her conversations were incoherent.” Another witness testified tbat *603 upon one occasion prior to tbe date of the deed, she was invited to the home of the grantor for dinner, and that the grantor spoke of carving the turkey when there was no turkey on the table to be carved. Thus, the original record in the Norment case discloses unmistakably that the declarations referred to were themselves messengers of legal incapacity.
In the Burns’ Will case numerous witnesses were examined, who gave their opinion as to the insanity of the testator existing long before the date of the will. These opinions were based upon the “conduct and language of the testator at different times.” An examination of the record in that case discloses that in all of these conversations and declarations the unmistakable element of a deranged mind was present. For instance, a witness testified that the testator Burns talked “foolishly”; that he said the witches were after him, and he had put tar on his fence and gates to keep them off. The other cases, as a matter of fact, state the general proposition of law, with perhaps variant wording, as announced in the Norment and Burns cases.
■ I think, therefore, that the Norment and Burns cases, when read in the light of the facts contained in the original records, clearly establish the principle for which I contend. I apprehend that the confusion in the law is due to the fact that in the majority of the eases undue influence and mental incapacity were both involved. It may be that the fact that a testator made one will at one period and a later will at another period different from the first might be used as an intimation or inference of undue influence, but undue influence does not flow from a diseased mind, but from a perfectly normal mind, the current of which has been bent and diverted by overwhelming and dominating pressure from without. Hence, a declaration made at one time, showing a particular testamentary intent, and thereafter a will is made showing a totally different testamentary intent, might be considered as evidence, in eases of undue influence, tending to show the warping of the mind by the unlawful and fraudulent force applied from without. But I know of no case applying the principle solely to mental capacity.
The declaration contained in the letter of 5 August, 1924, was treated by the court as a will. ■ If so, it was entirely sensible upon its face and the disposition of the estate to nieces and nephews was proper and natural and had the full sanction of the law. The will of 5 January, 1926, was also entirely sensible upon its face, and the disposition of the estate to the wife of the testator was proper and natural and had the full sanction of the law. In re Peterson, 136 N. C., 13 .
The trial judge instructed the jury: “Contrast the two alleged wills as bearing upon the issue of mental capacity.” In the first place, how can the contrasting of two wholly sensible documents, each having the equal sanction of the law, constitute any evidence of mental impair *604 ment or warrant any inference of a diseased mind? But there is a graver aspect. The word “contrast” used by the trial judge means to point out or observe differences. Now what is the fundamental difference between the two documents? Obviously, the devise of the bulk of the estate to nieces and nephews in the first will and the devise of the whole estate to the wife in the last. In short, the controlling difference was the fact that the wife received a small portion in the first and the entire estate in the second. So that, when the trial judge instructed the jury, in effect, that it was the duty of the jury to consider the difference between the two documents upon the question of testamentary capacity, it was clearly equivalent to charging that the fact that the testator gave his entire estate to his wife, thereby excluding his blood kin, was at least a circumstance tending to show mental incompetence. An examination of the method of arraying the contentions of the parties in this particular, I think, produces this conclusion as unerringly as the flight of a martin to his gourd or a bee to his hive.
The law, as I understand it, is to the contrary. For instance, in Pet arson’s case, supra, this Court said: “In the light of the experience and observation of men of the best judgment and soundest minds, we can see nothing in the fact that this man gave his estate, the produce of their joint industry and economy, to his wife, tending to show mental incapacity or undue influence.”
It would serve no useful purpose to thresh over the authorities or to draw out the debate upon this case. I only intended a brief statement of my conviction that the case has not been tried in accordance with law and the reasons for such conviction.