Opinion
No. 8211SC915
Filed 19 July 1983
1. Evidence 11.6 — evidence relating solely to mental capacity — dead man's statute not precluding G.S. 8-51 allows an interested witness, when the decedent's mental capacity of free exercise of will is at issue, to relate personal transactions and conversations between the witness and the decedent as support for his opinion as to the mental capacity of that decedent. Therefore, it was not error for the trial court to allow into evidence testimony which tended to show that plaintiff's father was mentally competent when he was able to point out the lines of his property but was mentally incompetent when his father was in the hospital just prior to signing the questioned deed.
2. Cancellation and Rescission of Instruments 10.2 — issue of undue influence — sufficiency of evidence Plaintiff's evidence that during the week before a deed was executed, decedent was experiencing a post-operative "down" phase, had recently undergone surgery for the removal of a brain tumor the size of a large egg, was incoherent, could not engage in conversation, and that the deed conveyed the bulk of decedent's property to persons other than his offspring, was evidence sufficient to justify submission of that issue to the jury on the question of undue influence.
APPEAL by defendants from Britt, Judge. Judgment entered 17 March 1982 in Superior Court, HARNETT County. Heard in the Court of Appeals 8 June 1983.
Morgan, Bryan, Jones Johnson, by Robert C. Bryan, for defendant appellants.
Johnson Johnson, P.A., by W. A. Johnson and Sandra L. Johnson, for plaintiff appellee.
Chief Judge VAUGHN dissenting.
I
Plaintiff instituted this suit to contest the validity of a deed from his father, Lavelle Hardee, now deceased, to his grandparents, Walton and Lura Hardee. That deed purportedly conveyed the decedent's remainder interest in a forty-nine (49) acre timber tract to the life tenants, plaintiff's grandparents.
Plaintiff alleged that on the date the deed was executed, 13 June 1980, his father lacked sufficient mental capacity to convey realty, and that because of the exertion of undue influence on his father by the defendants, Walton and Lura Hardee were conveyed the forty-nine (49) acre tract. They later conveyed it to the defendants Verna Parrish and Odell Hardee and retained a life estate. Plaintiff also alleged that at the time of the conveyance the land contained valuable timber; that after acquiring the land defendants sold that tract to a timber company; and that the company cut the timber and inflicted approximately $14,000 damages upon the tract itself when it removed $30,000 worth of timber.
Defendants timely filed an Answer, controverting the material allegations of the Complaint.
A jury trial was held. Defendants moved, both at the end of plaintiff's evidence and at the close of all the evidence, for an involuntary dismissal, contending that plaintiff's evidence was insufficient to go to the jury on the issues of decedent's alleged lack of mental capacity and on the undue influence allegedly exerted upon him. The motions were denied, and the evidence was thus submitted to the jury. The jury found that the decedent possessed the requisite mental capacity to execute the deed on 13 June 1980, but that Lavelle Hardee was induced to execute the deed by the overwhelming influence of the defendants or one of them. The jury assessed damages against the defendants in the amount of $17,400. Defendants moved for judgment notwithstanding the verdict, for a new trial, and for a reduction of damages. Those motions were denied, and judgment was entered for plaintiff. Defendants appealed.
This motion should have been denominated as one for directed verdict.
II
Defendants bring forth seven (7) assignments of error and raise five (5) arguments on appeal.
By their first argument, defendants contend that the trial court erred when it allowed plaintiff to testify concerning a conversation about, and their walk around, the property that is the subject of this controversy, because that testimony allegedly violates N.C. Gen. Stat. 8-51 (1981), the Dead Man's Statute. The entire colloquy follows:
Q. During this period between March of 1980 and May 26 of '80, did you have any discussions with your father about this property?
OBJECTION BY THE DEFENDANT.
OBJECTION OVERRULED.
A. Yes sir.
Q. And what was that discussion?
OBJECTION BY THE DEFENDANT.
COURT: Step into your room, members of the jury. Do not begin to discuss this case among yourselves. I'll send for you in just a few minutes. This is a matter I want to take up outside your presence.
(Jury absent.)
COURT: The jury is outside the room. I'll hear you now, Mr. Bryan.
MR. BRYAN: Your Honor, any conversation or communications which Johnnie Hardee had with his father relative to what was going to happen to the land or really to anything other than to prove mental capacity or undue influence is barred by the dead man statute.
OBJECTION OVERRULED.
COURT: When was the time of this discussion, sir?
A. The first time that I went back and saw him after his wife's death.
. . . .
COURT: Members of the jury, the objection of the defendants is overruled at this point and I will allow this conversation to come into evidence as bearing upon the mental capacity of the deceased, Lavelle Hardee, at the time of the conversation and you will be the final judge of what it shows or what it does not show in that respect, as to the mental capacity of Lavelle Hardee.
Q. What was that discussion?
OBJECTION BY THE DEFENDANT.
OBJECTION OVERRULED.
A. He stated that he would like to walk over the property lines with me so I would know where the points were.
Q. And what property was he referring to, if you know?
OBJECTION BY THE DEFENDANT.
OBJECTION OVERRULED.
A. The forty-nine acres of land.
Q. Now your father had a house in this same general area, did he not?
OBJECTION BY THE DEFENDANT.
OBJECTION OVERRULED.
A. Yes sir.
The house was on the uppermost part of the property going toward Coatsboro Road. There were two pieces of land on the same side of the road and it adjoined each other. When I was referring to my father's wife, it was his second wife, and was not my mother.
Q. Mr. Hardee, did you thereafter walk over this tract of land in question with your father and look at the lines and corners?
OBJECTION BY THE DEFENDANT.
OBJECTION OVERRULED.
A. Yes sir.
Defendants concede that our courts recognize an exception to G.S. 8-51 for evidence that shows the basis for the witness's opinion of the decedent's mental capacity during the relevant period. See, e.g., Whitley v. Redden, 276 N.C. 263, 171 S.E.2d 894 (1970). Defendants nevertheless contend that the testimony complained of in the case sub judice does not fall within that or any other exception to the statute, especially since plaintiff had the burden of proving Lavelle Hardee's mental incapacity, not his mental capacity. In short, defendants argue that the evidence excepted to is primarily probative of Lavelle Hardee's dispositive intent and whether the intent expressed in the deed was formed through the exercise of his own free will. We disagree.
G.S. 8-51 allows an interested witness, when the decedent's mental capacity of free exercise of will is at issue, to relate personal transactions and conversations between the witness and the decedent as support for his opinion as to the mental capacity of that decedent. Whitley v. Redden. Such evidence is inadmissible, however, "when it is offered for the purpose of proving and does tend to prove vital and material facts which will fix liability against the representative of a deceased person. . . ." Id. at 272, 171 S.E.2d at 901. The crucial distinction, then, is whether the evidence is offered primarily to show the basis for the witness's opinion as to the decedent's mental condition or whether it is offered to prove some other controverted fact. In Re Will of Ricks, 292 N.C. 28, 231 S.E.2d 856 (1977).
Our review of the record evidence reveals only four statements that arguably pertain to decedent's dispositive intent: (i) that Lavelle Hardee told plaintiff that he wanted to walk over the tract so that plaintiff would know where the boundaries were; (ii) that Lavelle Hardee had a house in the general area of the tract; (iii) that the tract referred to is the forty-nine (49) acres in dispute; and (iv) that Lavelle Hardee and plaintiff did in fact walk over the property.
When the evidence complained of is considered in conjunction with the question and answer immediately following it, that evidence bears primarily, if not wholly, on the accuracy of plaintiff's assessment of his father's mental capacity. It was proper for plaintiff to show that he knew when Lavelle Hardee was mentally competent (when Lavelle Hardee was able to point out his lines in March) and mentally incompetent (when Lavelle Hardee was in the hospital just prior to signing the questioned deed). We do not view the challenged testimony as having been "weighted towards proving facts essential to establishing plaintiff's claim." Whitley v. Redden at 273, 171 S.E.2d at 901.
The question asked next was: What was your father's mental condition as you observed it there in March and April of 1980? OBJECTION BY DEFENDANT. COURT: DO YOU have an opinion about that? A. Yes, sir, I have an opinion. COURT: Objection is overruled. Q. And what is that opinion? OBJECTION BY DEFENDANT. In March or April of 1980, he seemed perfectly normal, in my opinion.
The propriety of that conclusion is bolstered by our Supreme Court's decision, on similar facts, In Re Will of Ricks cited above. Reversing the decision of this Court granting a new trial, our Supreme Court held that the trial court had not erred when it allowed testatrix's son, the sole beneficiary of her will, to testify over a G.S. 8-51 objection, that testatrix told him she wanted (i) to make a will; (ii) to leave the bulk of her estate to him; (iii) to rely on his choice of legal counsel; and (iv) to rely on him to provide transportation to and from counsel's office. Rather, the Court concluded, after a thorough discussion of leading precedent:
The transactions and communications with the deceased which he related, considered in the context of his other testimony and other evidence in the case, seem clearly to have been offered mostly for the purpose of showing the basis for his opinion that his mother at the crucial time in question had the mental capacity to execute a will. The declarations or statements which he attributed to the deceased were not offered primarily to prove the truth of any assertion contained therein. Their probative value depends more on the fact that they were made.
In Re Will of Ricks at 42, 231 S.E.2d at 866.
Considering, then, the Supreme Court's decision in Ricks; the fact that the trial court in the case sub judice gave adequate and numerous limiting instructions each time the evidence was tendered; the context of the evidence tendered; and the content of the answers themselves, we hold that the evidence objected to was properly admitted. The probative value of "the walk around" the acreage lies in the fact that it occurred and that Lavelle Hardee knew where his lines were, rather than in any of the plethora of inferences that could be drawn therefrom. We therefore find defendant's primary argument unpersuasive.
III
Defendants next argue that plaintiff failed to meet his burden on the issue of undue influence, that the case should not have been submitted to the jury, and that their motion for directed verdict should have been allowed.
When considering a motion for directed verdict, a trial court must consider the non-movant's evidence in its most favorable light, treat that evidence as true, and resolve all permissible inferences in favor of that non-movant.
The issue before us, then, is whether plaintiff's evidence, when considered in its most favorable posture, was sufficient to establish a prima facie showing that decedent's 13 June 1980 deed was the product of the exertion of undue influence upon him.
A prima facie case of undue influence consists of evidence of a set of facts, circumstances, and inferences from which a jury could find that the challenged document is not the product of its executor's free will, but instead, the result of an overpowering influence on that person, sufficient to cause him to create a document he would not otherwise have executed. In re Andrews, 299 N.C. 52, 56, 261 S.E.2d 198, 200 (1980).
Plaintiff's evidence showed that during the week before the deed was executed, decedent was experiencing a post-operative "down" phase, had recently undergone surgery for the removal of a brain tumor the size of a large egg, was incoherent, could not engage in conversation, and that the deed conveyed the bulk of decedent's property to persons other than his only offspring. That evidence is, in our view, sufficient to justify submission of that issue to the jury. We thus find this argument unpersuasive.
IV
We have examined the remainder of defendants' arguments and find them to be without merit. The trial below was free of prejudicial error.
No prejudicial error.
Judge HILL concurs.
Chief Judge VAUGHN dissents.