The opinion
OlaeKSON, J.,
concurring in dissent: The majority opinion is written with care and thought commensurate with the importance of the controversy. In this jurisdiction there is an impenetrable wall between the law and the facts. The facts to be ascertained by the jury. This Court lays down, perhaps for all time, precedents in the law. The present case goes beyond what has ever before been decided by this Court.
In the main opinion is the following statement: “The record in this case, viewed in its entirety, does not present the bare question whether the contrast between two natural and reasonable acts or expressions, constitute evidence of insanity or of lack of testamentary capacity, simply because they are different in effect and are separate in point of time. That there is such a difference is merely a circumstance, which with other facts and circumstances appearing from all the evidence, may be considered by the jury in determining the question involved in the issue. In the absence of such other facts and circumstances, such *605 difference alone would not be sufficient as evidence of insanity or lack of testamentary capacity at tbe date of tbe last act or expression.”
Tbis statement is tbe crucial point of tbe difference. Tbe contrast, if permissible, wbicb I tbink not, is not made in tbe charge “merely a circumstance,” but tbe “right and duty'1 to consider it upon mental capacity. Tbe learned and careful judge wbo tried tbis case did not prepare tbe part of tbe charge hereinafter referred to. It was prepared by caveators and one of their prayers for instruction is as follows : “It is true, as contended by propounders, that a man may make a will and then revoke or change it by a later one. In reply to tbis, caveators contend that in April, 1924, less than two years before bis death, Judge Brown made a will wbicb fully and reasonably disposed of bis large estate and put it in safe and competent bands, recognizing bis moral and legal obligations in respect of bis estate and providing for all those having claims upon him and it. They contend that tbis will represented bis seasoned judgment and long experience; that it was carefully thought out and prepared, as disclosed by letters in evidence, and safeguarded both tbe bulk of tbe estate and tbe income therefrom; that tbis income amounts to about $25,000 per year, and is practically free from taxation; that tbis entire income was devised to bis wife for her lifetime, to do with as she pleased, and in addition she was given tbe residence with household furniture and effects in fee simple, together with tbe absolute right of disposing of $50,000 more as she saw fit by her will, thereby making full and ample provision for her. They contend further that tbis will of April, 1924, recognized and provided for tbe old colored woman, Pauline, wbo served in bis household for fifty years or more, giving her a legacy of $200 in cash and $40 per month for her support; that to Mr. Arthur Mayo, wbo had acted as bis clerk or business agent for many years, be gave tbe office on Market Street in recognition of long friendship and faithful service, and that tbe giving of tbis office to Mr. Mayo did not impair or appreciably diminish tbe annual income of about $25,000 to bis wife; that instead of vesting absolute "title to tbe bulk of bis estate in bis wife or bis relatives, be instead vested it in tbe Raleigh Savings Bank and Trust Company for her and their benefit and protection, to tbe end that tbe estate might be carefully safeguarded; that be was careful to anticipate tbe cost of administration and made a contract with tbis Savings Bank and Trust Company, with wbicb be bad dealt for many years, about commissions or fees; that in tbis will of April, 1924, be did not forget Mrs. A. D. McLean and her children, of whom be was very fond, but left substantial legacies for them, and that tbe residue or remainder of bis estate was given to bis nephews and nieces per capita, that is, share and share alike; tbe income from tbe shares of Brown Shepherd, a *606 nephew, and Eleanor Whitney, a niece, to go to their mothers, Mrs. Shepherd and Mrs. Crabtree, during their lives, respectively; that this will was deposited in his box in the Bank of Washington and his close business friends and confidential advisers, Jos. G. Brown and W. Reid Martin, of Raleigh, were duly notified to that effect, and that upon the death of Judge Brown, Mr. Joseph G. Brown came to Washington expecting to find and probate this will, never having been informed of any change; and in contrast with this carefully thought and well prepared will, as they contend, caveators point out that the alleged will of 5 January, 1926, while in sufficient legal form to pass as a will, is badly drawn, executed in less than two and a half months before Judge Brown’s death, after he had become feeble in body and mind, and that it is entirely different both in form and in fact from what Judge Brown really intended and desired to do with his property. 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 hearing upon the issue of mental capacity and the testamentary disposition which Judge Brown made or intended to make of his property.” The basis of this first alleged will had its primary foundation in a letter of Judge Brown, dated 5 August, 1924. At that time he was conceded to be sane and of disposing mind. In this letter he states “Of course you will regard this letter as strictly confidential and' destroy it. . . . God’s will be done, but when my time comes I hdpe I may pass out quickly.” This request “destroy it” may mean that he left open the idea of a change in the future. The caveators, with remarkable legal skill and ability in a request to charge, took this alleged will founded on the letter as a basis, with ingenuity stated almost as a fact, although set forth as a contention, as follows: “which fully and reasonably disposed of his large estate — put it in safe and competent hands— recognizing a moral and legal obligation — his seasoned judgment and long experience — carefully thought out and prepared — safeguarded— making full and ample provision” for his widow — “provided for the old colored woman” and Mr. Arthur Mayo, “in recognition of long friendship and faithful service,” giving him the office on Market Street. Then in the contentions was humanly stated the call of the blood relations. The powerful array of contentions was striking and in language hard to excel. The contrast was demanded between this and the will of 5 January, 1926, with only this short statement: “While in sufficient legal form to pass as a will is badly drawn,” “executed two and a half months before Judge Brown’s death,” and then stating the contrast contention as a fact, “after he became feeble in body and mind,” and that it is entirely different both in form and in fact from what Judge Brown really *607 intended and desired to do with his property.” What are the facts which, if permissible, should be contrasted in favor of propounders?
The alleged will of 5 January, 1926, is as follows:
“Know all men that I, George H. Brown of Washington, Bedufort County, No. Ca. do make & declare this to be my last will and testament; I bequeath & devise to my dear wife Laura E. Brown all my property real & personal to be hers absolutely in fee simple including my residence & law office on Market Street in Washington, No. Ca.
“This Jany. 5, 1926. I also appoint my said wife Executrix to this will without her giving any bond. Geo. H. Beown.
“Geoege H. Bbown.
“Witness: Jesse B. Ross.
“Witness: Wm. B. Habding.
“We have signed this will of Geo. H. Brown in. his presence as witnesses, and in his presence and in the presence of each other.
“Wat. B. Haeding.
“Jesse B. Ross/'
On back of will:
“Last Will and Testament of George H. Brown of Beaufort County, N. C. Made Jany. 5, 1926. Geo. H. Beown, 1926.
“Deposited in my lock box among my valuable papers. This Jany. 5, 1926. Geo. EL Beown, Witness J. B. Ross.”
On envelope:
“Geo. EL Brown Last Will and Testament. Filed in this box with my valuable papers. This Jany. 5, 1926. Geo. EL Beown.”
It was in Judge Brown’s handwriting — legible. The two witnesses to the will testified that when Judge Brown signed it and they witnessed it, it was done as the writing on the will indicated, and they testified in substance that, in their opinion, he had sufficient mental capacity to know what property he owned, to know his relatives, to know and appreciate the claims, if any, which they had upon him, and if he desired to make a will to know and understand the scope and effect of such testamentary disposition.
He left his property to."my dear wife” who had been married to him for half a century. The will was most carefully drawn and according to the law of this State, was both a written and holograph will. In caveators’ contentions, as above set forth, a graphic picture is drawn in the interest of the blood relations which practically negatives the claim of the wife who had been his helpmeet for a half century and made it possible, no doubt, by economy, self-denial and thrift, to help accumulate the fortune.
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*611 Tbe powerful array of contentions by caveators was a call of ihe Mood and negatived tbe call of the wife. Tbe jury were instructed in tbe language of caveators’ request, by a judge in whom, as a matter of common knowledge, all bave confidence "that it is ihe right and duty of the jury to consider them and to contrast the two alleged wills.” Not a circumstance, as tbe main opinion would indicate, but tbe right and duty■ — tbe definite duty. As said by a heroic Southern man, whose life was an inspiration, “Duty is tbe sublimest word in tbe English language.”. Tbe caveators’ request as given in tbe setting, was a call to tbe blood, and “my dear wife” — she who was “bone of my bones and flesh of my flesh,” tbe helpmeet of over a half century — from tbe charge as given practical!y forgotten. Tbe minds of the jurors, the triers of tbe facts, beard only tbe duty to tbe call of the Mood relations in tbe charge as given, but penned by those representing tbe blood and adopted as tbe law by tbe able judge who tried tbe case. It was a charge that gave tbe widow little chance before a jury and, in my opinion, was erroneous in law and never before held to be law in this jurisdiction. In fact tbe use of tbe words "merely a circumstance" shows that this is as far as tbe majority of this Court will go now or in tbe future, yet they ignore tbe charge going further — "right and duty!’ on tbe issue of mental capacity.
Arthur Mayo, referred to in tbe caveators’ contentions, testified: “I am trying to help tbe caveators in this litigation; my interest lies that way.” Then again: “I cannot believe that be was of sound mind when be made that will, considering all tbe circumstances (bis reversal of previous statements). I think be was crazy. If be bad given me tbe office in tbe will I could not say that I would bave tbe opinion that be was of unsound mind. I probably would not.” Yet tbe charge is tbe right and duty of tbe jury to consider tbe contentions as written by caveators and requested by them and make tbe contrast.
The following principle is well stated by Justice H. G. Connor, a jurist of learning and wide experience, In re Peterson, 136 N. C., at p. “27 (in 1904) : “In tbe light of tbe experience and observation of men of the best judgment and soundest minds, we can see nothing in tbe fact that this man gave bis estate, tbe product of their joint industry and economy, to bis wife, tending to show mental incapacity or undue influence. "We do not think it tended to show either undue influence or mental incapacity. It seems, in tbe light of tbe testimony, tbe most natural and fitting expression of affection and solicitude of tbe testator.”
It was testified to by all tbe witnesses that Judge Brown was a distinguished looking man. He bad one of tbe greatest minds. His neighbor, Eev. S. A. Cotton, a witness for caveators, testified in part: *612 “I saw them together (speaking of bis wife) a good many times; my observation led me to the conclusion that there was the usual ripeness and intensity of association you would expect to see between a couple of that age. I saw nothing in that respect except something to commend.”
In the letter of Judge Brown, with request to destroy, which was used as a basis of a will, this great mind said, “God’s will be done . . . I hope I may pass out quickly,” but he tarried on, and who can tell that when he calmly looked to the end, this human mind found, a problem that puzzles the greatest minds, the call of "my dear wife” was greater than the call of the blood relations — the half century of life together — and he changed his mind and left all to his helpmeet. The contrast, as charged by the court below — the right and duty of the jury to consider it upon mental capacity, not merely a circumstance, as stated in the main opinion, was perhaps to them almost an instruction in favor of the caveators and a call of the blood, and they so decided. In my judgment it was error and prejudicial to the rights of the widow.
The inner sanctuary of this great jurist should not be forgotten. His wife testified: “During the last days of Judge Brown’s life the intimacy of our associations could not have been closer than it was; he said to me, Maura, now that I know your real worth, I wish I could begin all over again.’ We were sitting in the library together; he said ‘I have worked so hard I wish I had a million to leave you.’ ... I had many conversations with him on spiritual matters, many such conversations, when I expressed my pleasure at his belief, I told him that I was glad that he believed. He said, T have always believed.’ He had made it a practice for years — almost required it — to read the Bible in the morning, and during this illness he asked me every evening to go upstairs and read the Bible to him, which I did. Many times I repeated to him hymns he enjoyed very much hearing, and one especially, Bun of my soul, Thou Savior dear.’ ” ’ Perhaps leaving the property to his helpmeet of half a century was the crowning human act of justice of this jurist — trusting her to do right to his blood. But we here are not the triers of fact. In this jurisdiction we can only pass on error in law. The family relation of husband and wife is sacred now and should ever be. The contrast in the charge, in my opinion, was prejudicial to the rights of the wife, and a new trial should be granted.