Sutton v. Sutton

Denny, J.

The complaint alleges, on 28 November, 1938, J. N. Sutton was declared incompetent to handle his affairs because of his aged and infirm condition; whereupon L. M. Sutton, one of the plaintiffs, was appointed general guardian for J. N. Sutton by the clerk of the Superior Court of Lenoir County. It appears from the facts set forth in the complaint that L. M. Sutton continued to act as guardian for J. N. Sutton until the death of the said J. N. Sutton on 14 May, 1941.

The question arises as to whether or not a person declared incompetent to handle his affairs because of his aged and infirm condition, and for whom a guardian has been appointed, has the mental capacity to revoke his will. Consolidated Statutes of North Carolina, Yol. 3, sec. 2285, as amended by Public Laws 1929, chapter 203, provides: “Where a person is found to be incompetent from want of understanding to manage his affairs, by reason of physical and mental weakness on account of old age and/or disease and/or other like infirmities, the Clerk may appoint a Trustee instead of guardian for said person.”

*277 Where a person has been adjudged incompetent from want of understanding to manage his affairs, by reason' of physical and mental weakness on account of old age, disease or like infirmities, and the court has appointed a guardian, and not a trustee, the ward is conclusively presumed to lack mental capacity to manage his affairs, in so far as parties and privies to the guardianship proceedings are concerned; and, while not conclusive as to others, it is presumptive proof of the mental incapacity of the ward, and this presumption continues unless rebutted in a proper proceedings.

Johnson v. Ins. Co., 217 N. C., 139 , 7 S. E. (2d), 475 ;

Parker v. Davis, 53 N. C., 460 ;

Rippy v. Gant, 39 N. C., 443 ;

Christmas v. Mitchell, 38 N. C., 535 ;

Armstrong and Arrington v. Short, 8 N. C., 11 . Therefore, in any event, in the absence of proof to the contrary, a person for whom a guardian has been appointed pursuant to the provisions of Consolidated Statutes of North Carolina, Vol. 3, sec. 2285, as amended by Public Laws 1929, chapter 203, is presumed to lack the mental capacity to make or revoke a will. It seems to be the general rule that the same mental capacity necessary to make a will is required to revoke one, and the rule is so stated in 68 C. J., sec. 479, p. 797: “The same mental capacity as is required to make a will has been held necessary to make a revocation of the will effective.” The weight of authority supports the above view.

Vaughn v. Vaughn, 217 Ala., 364 , 116 So., 427 ;

In re Lang’s Estate, 65 Cal., 19 , 2 Pac., 491 ;

Barnes v. Bosstick, 203 Ind., 299 , 179 N. E., 777 ;

Allison v. Allison, 37 Ky., 90 ;

In re Loomis’ Will, 133 Me., 81, 174 A., 38 ;

Hunter v. Baker, 154 Md., 307 , 141 A., 368 , 278 U. S., 627 , 73 L. Ed., 546 ;

Watkins v. Watkins, 142 Miss., 210 , 106 S., 753;

In re Goldsticker’s Will, 192 N. Y., 35 , 18 L. R. A. (N. S.), 99;

In re Quick’s Will, 263 N. Y. S., 146, 147 Misc., 28 ;

Ford v. Ford, 26 Tenn., 92 .

The demurrer should have been sustained in the court below, and the judgment is Reversed.