In re Will of Farr , 7 N.C. App. 250 ( 1970 )

HbdeicK, J.

The appellant first assigns as error thé court’s refusal to instruct the jury as requested in writing as to the provisions of G.S. 31-5.8 as follows:

“ ‘No will or any part thereof, which shall be in any manner revoked, can be revived otherwise than by a reexecution thereof, or by the execution of another will in which the revoked will or part thereof is incorporated by reference.’

“ ‘Therefore, the court instructs you that the execution of the last paper writing dated March 16, 1966, did not have the legal effect of reviving paragraphs Four and Thirteen of the paper writing dated August 17, 1961.’ ”

G.S. 31-5.8 was not relevant to the theory of the trial. Fourteen of the issues submitted to the jury related to the formalities of the execution of the will and the six codicils. The other two issues related to mental capacity and undue influence. The evidence given in the case related only to the formal execution of the will and to the physical and mental condition of Mr. Farr, and to the influences which might have been exerted upon him to make the codicil dated 22 February 1966. It was not necessary for the jury to be instructed as to the legal effect of the codicil dated 16 March 1966. The court does not commit error when it refuses to give instructions which, though correct in the abstract, are not applicable to the case. McMillan v. Baxley, 112 N.C. 578, 16 S.E. 845 (1893); Mendenhall v. R. R. Co., 123 N.C. 275, 31 S.E. 480 (1898).

The appellant contends that all of the evidence offered tended to show that Mr. Farr did not want to die intestate as to any of his property but that the result of the codicil dated 16 March 1966, in conjunction with G.S. 31-5.8, is that he did in fact die intestate as to a considerable portion of his property since he failed to reexecute Articles Four and Thirteen of his will. Counsel argues that Mr. Farr did not know the legal effect of the instrument he executed 16 March 1966, that this was some evidence of a lack of mental capacity to execute the codicil dated 22 February 1966, and that he should be allowed to argue this to the jury.

G.S. 84-14, in part, provides that “. . . the whole case as well ,of law as of fact may be argued to the jury.” Under this statute counsel’s right to argue law generally to the jury has been upheld or expressly recognized. In Puett v. R. R., 141 N.C. 332, 53 S.E. 852 (1906), the trial court stopped counsel during his argument to the jury and refused to allow him to comment upon the testimony of a witness. The court, in holding this to be error on the part of the trial judge, stated: “Being thus competent, material, and relevant, there can be no doubt of the right of counsel to make proper comment upon it in his address to the jury. This was all that he was doing when admonished by the judge to stop, which he did, as he should have done, in submission to the intimation of the court. But this client was thereby prejudiced, and prevented, through his chosen counsel, from developing his case before the jury. The judge has a large discretion in controlling and directing the argument of counsel (S. v. Caveness, 78 N.C., 484), but this does not include the right to deprive a litigant of the benefit of his counsel’s argument when it is confined within proper bounds and is addressed to the material facts of the case. S. v. Miller, 75 N.C., 73. What is here said is subject, however, to the restrictions imposed by Laws 1903, ch. 433; Revisal, sec. 216. The right to argue the whole case has been expressly conferred by statute. Rev. Code, ch. 31, sec. 57, par. 15; Code, ch. 4, sec. 30; Revisal, sec. -216. The history of this legislation is well known to the bench and bar. S. v. Miller, supra. The reason of the court for stopping counsel is not given. We assume, and we think not unreasonably, that the learned judge who presided at the trial thought the comment improper, as the declaration of Pope was immaterial. Entertaining this opinion, it was proper to interfere as he did. But we think this declaration was material and a proper subject of comment.”

In Irvin v. R. R., 164 N.C. 5, 80 S.E. 78 (1913), the Court states that the “. . . conduct of counsel in presenting their causes to the jury is left largely to the discretion of the trial judge . . .” and that this discretion has been exercised liberally. The Court further states that even though the counsel in this case did not exercise all of his privileges in arguing to the jury, nevertheless the discretion vested in the judge does not give him the right to deprive a client of the benefit of his attorney’s argument when it is within proper bounds and when it is addressed to the material facts of the case. The Court, in Brown v. Vestal, 231 N.C. 56, 55 S.E. 2d 797 (1949), while discussing the role of the trial judge in charging the jury, stated: “Counsel have the right to argue ‘the whole case as well of law as of fact.’ G.S. 84-14; Howard v. Telegraph Co., 170 N.C. 495, 87 S.E. 313. Frequently it is necessary for them to do so in order to present, in an intelligent manner, the facts they contend the jury should find from the evidence offered. Sears, Roebuck & Co. v. Banking Co., 191 N.C. 500, 132 S.E. 468.”

We hold that it was error for the trial judge to prevent counsel for the appellant from arguing G.S. 31-5.8 to the jury. In North Carolina when a will is filed for probate and a caveat to that will is also filed attempting to prevent probate of the will on the ground that the testator lacked sufficient mental capacity to execute a will, the caveator may present to the jury evidence of events which have a bearing on the mental capacity of the testator, both before and after the instrument is executed as long as it tends to shed light upon the mental capacity of the testator at the time he made the instrument. In Re Hall’s Will, 252 N.C. 70, 113 S.E. 2d 1 (1960); In Re Knight's Will, 250 N.C. 634, 109 S.E. 2d 470 (1959).

We have not discussed the appellant’s other assignments of error since they are not likely to occur in a retrial.

For the reasons set forth above, the appellant is entitled to a

New trial.

Mallard, C.J., and Morris, J., concur.