after stating the case: AVe have given this cause and the exceptions made by appellant, all of them, full and careful consideration, and are of opinion that there has been no error committed in the trial, certainly none that could give the plaintiff any just ground of complaint; nor do we find in the record, or case on appeal, testimony that would justify a *139verdict either of incapacity in grantor, or of fraud or. undue-influence on tlie part of the grantee as to the deed in question. True, there is evidence tending to show that the grantor, Alfred R. Myatt, was not a provident or a very industrious man; that he-had the drinking habit, and was at times incapable of attending properly to his business, but this last was not at all his usual condition. On the contrary, he could, and did, as a rule, manage his own affairs, made contracts, executed deeds, including that to feme plaintiff herself, and under which she claims, and transacted business generally, on the part of himself and his wife, right up to the transaction involved in the litigation. Further, the great weight of the testimony is to the effect, that said Alfred R. Myatt was sober and clothed in his right mind at the time he executed the deed in question; and there'is very little, if any, evidence that defendant had especial influence over him, and none at all that he exercised, or endeavored to exercise, it on this occasion.
An exception especially urged for error, was to the refusal of the Court to allow the plaintiff to ask a question of one of her own witnesses, W. B. Temple, not an expert, in reference to the mental condition of Alfred R. Myatt during the period of three or four weeks just prior to the execution of the deed, as follows:
“In your opinion was Alfred R. Myatt, at that time, a fully responsible man, a sane man ?
Defendant objected; sustained, and plaintiff excepted.”
Another question of this witness as to same- period was also disallowed.
“Q. "Was his mind unbalanced?
The Court stating that he declined to allow the question in the exercise of his discretion.”
There is no allegation in the complaint, as a distinct and independent ground of relief, that Alfred R. Myatt did not have mental capacity to make this deed, but if it be conceded that his mental condition during the period in question was *140relevant in so far as it tended to show that he was more susceptible to undue influence at the time, this witness had just made answer to a question addressed to the same period, as follows:
“Q. What was the condition of his mind? Answer: T cannot say as to his mind.’ ”
And the Court might very well conclude that the witness having just made answer that he could not say as to his _ inyid, the subsequent questions were to some extent an effort on the part of plaintiff to cross-examine her own witness, and in that way subject to be rightfully disallowed in the exercise of his Honor’s discretion; or the question could have been held incompetent on the ground that, the witness having jrxst stated that he could not say as to the condition of the grantor’s mind during the period referred to, an answer to the subsequent questions could only have been a conclusion or inference of the witness adopted from hearsay or the opinion of others; and while it is held with us that opinion evidence, in strictness non-expert, may be received as to the condition of a person’s mind, when relevant to the inquiry, such opinion must come from the association or personal observation of such a witness, and not proceed from facts and circumstances detailed to him by others. McRae v. Malloy, 93 N. C., 154; Clary v. Clary, 24 N. C., 78.
Plaintiff further insists there was error in the portion of his Honor’s charge in-regard to the question of undue influence, which was, in part, as follows:
“Undue influence is a fraudulent influence overruling or controlling the mind of the person operated upon, the fraudulent influence by which the will of the maker, that is, in this case, the will of Alfred R. Myatt, is perverted from its free1 exercise, and there is sustained injury, and the will of the influencing party substituted for it.
“Did the defendant, W. A. Myatt, possess over Alfred R. Myatt, his brother, an undue influence as defined by the *141Court? And, if so, did be make a fraudulent use of it and thereby procure the deed of 10 November, 1906? Did the defendant possess and exert a fraudulent influence over Alfred E. Myatt sufficient to destroy or pervert free agency, in him,, so tliat the act of executing the deed was the result of tlie domination of the mind of the defendant, rather than the expression of the will and mind of Alfred E. Myatt ?”
The objection being, that too much stress is given to the element of fraud as a part of the definition. But the charge is in substantial accord with our decisions on this subject. In re Abee’s Will, 146 N. C., 273 ; Wright v. Howe, 52 N. C., 412; Marshall v. Flynn, 49 N. C., 199.
It is true, that to constitute undue influence it is not necessarily required that there should exist moral turpitude or even an improper motive; but if a person, from the best of motives, having obtained a dominant influence over the mind of a grantor, thereby induces him to execute a deed or other instrument materially affecting his rights, which he would not have made otherwise, exercising the influence obtained to such an extent that the mind and will of the grantor is effaced or supplanted in the transaction so that the instrument, while professing to be the act and deed of the grantor, in fact and truth only expresses'the mind and will of the third person, the actor who procured the result, such an instrument so obtained is not improperly termed fraudulent. Accordingly, it is held in Marshall v. Flynn, supra, “that the influence which destroys the validity of a will is a fraudulent influence, controlling the mind of the testator so as to induce him to make a will which he would not otherwise have made.”
And all of our decisions, as stated, are to like effect, and uphold the definition given by the Court in the present case.
The motion for new trial, for newly discovered testimony, must be also overruled. The evidence suggested in the affidavits is at best only cumulative, and, under our decisions, *142is entirely insufficient to justify favorable consideration on the part of the Court. Gay v. Mitchell, 146 N. C., 509, and authorities there cited.
There is no error in the record to plaintiff’s prejudice, and the judgment below is affirmed.