Opinion
20302
November 9, 1976.
Messrs. R.K. Wise, A. Birge Wise, and Kirby D. Shealy, Jr., of Columbia, for Appellants, cite: As to evidence of testator's personal history relating to mental capacity more than 10 years prior to the execution of a will in question, being admissible on the issue of mental capacity to execute a will: Commentaries on Wills, Alexander, § 356 at page 486; 140 S.C. 1, 138 S.E. 355; 107 S.C. 72, 91 S.E. 78; Shuler on Wills, §§ 185 and 192; 62 S.C. 558, 44 S.E. 63; 57 Am.Jur. under wills, § 104 at page 106; 57 Am. Jur. Wills, § 99, page 103; 172 S.C. 188, 173 S.E. 623; 211 S.C. 379, 46 S.E.2d 287; 212 S.C. 379, 46 S.E.2d 287; 124 A.L.R. 431; 221 Minn. 303, 22 N.W.2d 19, 167 A.L.R. 1; 94 C.J.S. Wills, § 50, page 752. As to the stating in the presence of the jury by the court that contestants (appellants) could not produce testimony on cross examination or direct examination concerning testator more than 10 years prior to the date of the execution of a purported will, excluding the overall mental condition of the testator: 214 S.C. 553, 53 S.E.2d 789; Section 26, Article 5 of the Constitution of 1895; 211 S.C. 553, 34 S.E.2d 796; 119 S.C. 134, 112 S.E. 78. As to the test of mental capacity to execute a will in South Carolina: 134 S.C. 412, 132 S.E. 811; 125 S.C. 165, 118 S.E. 312.
Michael H. Quinn, Esq., of Columbia, for Respondent, cites: As to the Trial Judge's not having committed an abuse of discretion, resulting in prejudicial error to Appellants, by the exclusion from evidence of matters that occurred more than ten years prior to the date of the execution of the will in question: 212 S.C. 379, 46 S.E.2d 287; 125 S.C. 165, 118 S.E. 312; 3 Page on Wills (Bowe-Parker Revision) Section 29.58 at p. 535; 250 N.C. 634, 109 S.E.2d 470; 235 Ga. 51, 218 S.E.2d 802; 79 Am. Jur.2d Wills, Section 118 at page 312; 3 Page on Wills (Bowe-Parker Revision), Section 29.58, at page 537; 252 N.C. 70, 113 S.E.2d 1; 172 Md. 477, 192 A. 327; 26 Ill. App.2d 291, 167 N.E.2d 703; 67 Cal.App.2d 512, 155 P.2d 76; 287 S.W.2d 301; 279 S.W.2d 936; 146 Mich. 463, 109 N.W. 858; 194 Ky. 385, 239 S.W. 455; 136 Iowa 335, 112 N.W. 8; 124 A.L.R. 433; 168 A.L.R. 974; 3 page on Wills, Section 29.58 at pages 535-544. As to the Trial Judge's not having committed prejudicial error in ruling, in the presence of the jury, that evidence of matters which occurred more than ten years prior to the date of the execution of the will was not admissible: 134 S.C. 412, 132 S.E. 811; 259 S.C. 55, 190 S.E.2d 754; 50 S.C. 95, 27 S.E. 555; 181 S.C. 435, 187 S.E. 528; 175 S.C. 117, 178 S.E. 503; 243 S.C. 414, 134 S.E.2d 248; 238 S.C. 364, 120 S.E.2d 209.
Nov. 9, 1976.
This is an action contesting the validity of a will on the ground of testamentary incapacity. Appellants are two adopted sons of the deceased who received bequests of $100.00 each under the will. The case was tried before a jury, de novo, and the will was validated.
The first question presented relates to the exclusion of evidence regarding the mental capacity of the testator. The trial judge refused to admit evidence of the occurred more than ten years prior to the execution of the will on December 31, 1968, finding such matters too remote to have probative evidentiary value. Admissibility of evidence relating to the mental capacity of a testator to execute a will is within the sound discretion of the trial judge. In re Washington's Estate, 212 S.C. 379, 46 S.E.2d 287 (1948); 94 C.J.S. Wills § 50.
The appellants attempted to prove that the testator suffered from a mental disorder allegedly due to an alcohol and drug problem. Ample evidence of the testator's aberrant behavior including his severe alcoholic problem, sanitarium confinements, physical attacks on one wife, shooting another wife, and his ultimate suicide was presented to the jury. Appellants assert that the excluded evidence would have provided "further" testimony demonstrating the progression of the disease and the duration of the alleged alcohol and drug addiction. It is evident that any excluded evidence was purely supplemental. The ruling did not prejudice the appellants and did not constitute an abuse of discretion.
Appellants next assert that the evidentiary ruling was prejudicial because it was made in the presence of the jury. We conclude from the record that the trial judge did nothing more than make a legal ruling as to the admissibility of certain evidence. Levan v. Atlantic Coast Line R.R. Company, 86 S.C. 514, 517, 68 S.E. 770 (1910); 88 C.J.S. Trial § 50, page 133.
The final two exceptions assert error relating to the charges to the jury. The trial judge used the terms "sanity, insanity, and intelligence" when instructing the jury. It is clear, when the charge is considered in its entirety, the terms were used in their general sense and there was no prejudice to the appellants. Priest v. Scott, 266 S.C. 321, 223 S.E.2d 36 (1976). The trial judge properly refused the requested charge as its substance had been satisfactorily covered in the general instructions.
Affirmed.
LEWIS, C.J., and LITTLEJOHN, RHODES and GREGORY, JJ., concur.