#### In the Matter of the Last Will and Testament of L. A. CRAIG.

(Filed 8 December, 1926.)

Wills — Undue Influence — Evidence—Nonexpert Witnesses.

Evidence is incompetent from a nonexpert witness that the testator, whose will was being tried upon the issue of *devisavit vel non,*was under the undue influence of the wife when making the will in question in her favor. Where undue influence and mental incapacity are in question, it is better to submit each under separate issues.

Civil actioh, tried at May Term, 1926, of Caldwell before *Lane, J.,*and a jury.

On 20 May, 1925, L. A. Craig executed a last will and testament, de- ■ vising to bis wife, Lillie A. Craig, all of bis property and appointing ber executrix of tbe will. Tbe testator left bim surviving an only child by a former marriage, to wit, Mrs. Edith Price. Tbe testator bad no child by bis second wife, Lillie A. Craig. Tbe devisee and executrix, Mrs. Lillie A. Craig, presented tbe will for probate and obtained letters of administration upon tbe estate. Thereafter Mrs. Price filed a caveat to said will. Pending tbe trial of tbe issue, Mrs. Lillie Craig died intestate, leaving as ber heirs at law and distributees ber brothers and sisters, who were duly made.parties to tbe proceeding.

Tbe case was tried upon tbe single issue: “Is tbe paper-writing propounded for probate, or any part thereof, tbe last will and testament of L. A. Craig?”

Tbe jury answered tbe issue no, and tbe propounders appealed, assigning errors.

*Squires <& 'Whisnant and E. B. Cline for propounders.*

*W. Q.*Newland, *F. A. Linney and Lawrence Wahefield for caveators.*

Brogden, J.

Tbe caveators allege that tbe testator did not have sufficient mental capacity to make a will, and that said will was obtained by bis wife, Lillie A. Craig, and ber close relatives by means of undue and improper influence and duress exercised upon tbe said testator.

*657Tbis Court has intimated in cases of this kind that it is a better practice to submit separate issues relating to mental capacity and undue influence. *In re Rawlings’ Will,*170 N. C., 58.

A niece of the testator was asked the following question: “From your experience and observation while you were there, and of the deceased, your uncle, I’ll ask you whether or not in your opinion he was under' the domination, direction and control of his wife.”

The witness answered: “Yes, sir, he was.”

The propounders excepted to the ruling of the court in permitting the question and answer.

Another witness was asked: “Are you able to- state as to whether or not he was under the influence and domination and control of his wife ?”

The witness answered: “Not positive.”

The propounders excepted to the ruling of the court in permitting the question and answer.

Another witness was asked: “From your experience and observation, have you an opinion as to whether or not he was under the influence and domination and control of his wife, Mrs. Lillie Craig ?”

The witness answered: “Somewhat, yes.”

The propounders excepted to the ruling of the court in permitting the question and answer.

Another witness was asked: “From your experience and observation visiting that home there, and seeing and judging the relations between Mr. Craig and his wife, have you an opinion as to whether or not she exercised influence over him and he was under her dominion and control ?”

Witness answered: “I think so.”

The propounders excepted to the ruling of the court in permitting the question and answer. There was other testimony to the same effect.

The law is well settled, that in eases involving the mental capacity of a testator to make a will, that a nonexpert witness, though not a subscribing witness or even present when the will is made, may testify as to the mental condition of a testator if he has had reasonable or adequate opportunity for observation. *Bond v. Mfg. Co.,*140 N. C., 381; *In re Rawlings’ Will,*170 N. C., 58; *Hyatt v. Hyatt,*187 N. C., 113. This principle, however, has never been extended by the courts to include opinions as to undue influence.

In *Stewart v. Stewart,*155 N. C., 341, the caveator was a son by the first marriage, and the propounder was the second wife and chief beneficiary. The following question was asked: “What influence did Cassie Stewart seem to exert over Henry Stewart, Sr.?” The witness answered : “She certainly seemed to do most of the talking, and he seemed to be under her thumb a good deal.” The court excluded the question *658and answer. *Clark, C. J.,*says: “Tbe question was excluded upon tbe ground tbat it was leading. "We also tbink tbat it was incompetent as tbe expression of a conclusion wbicb it was tbe province of tbe jury to draw upon facts placed before tbem. Tbe condition of tbe testator’s mind was a matter as to wbicb any one baving opportunity for observation can testify, subject to cross-examination to test tbe value of tbe opinion expressed by tbe witness, *Clary v. Clary,*24 N. C., 78, but whether there was undue influence is a question for tbe jury to decide from tbe facts and circumstances placed in evidence . . . But it would not have been competent for tbe witness ... to testify tbat such’person bad a controlling influence over tbe testator.”

Tbe evidence, therefore, was incompetent and inadmissible, and constitutes reversible error. There are other serious questions presented in tbe record as to tbe competency of evidence, but we express no opinion in regard to tbem for tbe reason tbat there must be a new trial for tbe errors specified, and each party is entitled to have tbe case tried upon its merits without tbe embarrassment of intimation from this Court.

New trial.