In Re Estate of Loftin

205 S.E.2d 574 (1974)

21 N.C. App. 627

In re the ESTATE of Kirby W. LOFTIN, Deceased (72E146). Sybil Lewis LOFTIN, Petitioner, (73SP35) v. Kirby C. LOFTIN, Executor of the Estate of Kirby W. Loftin, Respondent.

No. 748SC132.

Court of Appeals of North Carolina.

June 5, 1974.

*575 Donald P. Brock, Trenton, for petitioner appellant.

Jeffress, Hodges, Morris & Rochelle, P. A. by A. H. Jeffress, Kinston, for respondent appellee.

MORRIS, Judge.

G.S. § 52-10 provides that married persons may, subject to the provisions of G.S. § 52-6 release any of the rights they may by marriage acquire in the property of each other. G.S. § 52-6 provides that no separation agreement or contract between married persons affecting the real estate of the wife shall be valid unless acknowledged before a certifying officer who shall privately examine the wife. The Supreme Court held in Turner v. Turner, 242 N.C. 533, 89 S.E.2d 245 (1955), that an antenuptial contract executed between parties mutually releasing the prospective interest of each in the property of the other, is valid when acknowledged before the Clerk of Superior Court who incorporates in his certificate a finding that the agreement is not unreasonable or injurious to the wife. An antenuptial contract is also effective as a bar to the right of the wife to recover a year's support. Perkins v. Brinkley, 133 N.C. 86, 45 S.E. 465 (1903). The effect of these decisions and the above statutes is to require a "privy exam" for the validity of an antenuptial contract, and, by implication, to make applicable to antenuptial contracts the appellate decisions regarding separation agreements and contracts affecting real estate of the wife.

A married woman may attack a certificate of acknowledgment and a privy exam upon grounds of mental incapacity, infancy or fraud. Eubanks v. Eubanks, 273 N.C. 189, 159 S.E.2d 562 (1968). The certificate of the Clerk is conclusive except *576 for fraud. Tripp v. Tripp, 266 N.C. 378, 146 S.E.2d 507 (1965).

A separation agreement acknowledged pursuant to G.S. § 52-6 can be set aside if induced by fraud. The petitioning party must, however, allege "facts which, if found to be true, permit the legitimate inference that the defendant induced the plaintiff by fraudulent misrepresentations to enter into the contract which but for the misrepresentations she would not have done. If the pleading alleges conclusions rather than facts, it is insufficient to raise an issue of actual fraud." Van Every v. Van Every, 265 N.C. 506, 512, 144 S.E.2d 603, 607 (1965). As we have stated, the requirements for a successful attack on an acknowledged separation agreement are apposite to antenuptial contracts.

Petitioner in the case sub judice alleges that:

"Misrepresentations were made to the widow at the time said contract was purportedly executed, both as to the assets of the deceased and as to the contents and meaning of said contract. That the execution of said contract was obtained through coercion and was in fact injurious and unfair to the undersigned widow."

While this allegation purports to attack the Clerk's certificate on the basis of fraud in the procurement of the contract, it is questionable whether it sufficiently alleges the fraud.

G.S. § 1A-1, Rule 9(b) provides in pertinent part:

"In all averments of fraud, duress or mistake, the circumstances constituting fraud or mistake shall be stated with particularity."

This rule codifies a rule applied without a specific code directive under former practice. N.C.R.Civ.P. 9, Comment. Prior to the new rules, evidence of fraud, however complete, could not be submitted to the jury without allegations which, if true, would constitute fraud. Mangum v. Surles, 281 N.C. 91, 187 S.E.2d 697 (1972). In order to comply with Rule 9(b), the pleadings must state the facts to be relied upon to establish fraud, duress or mistake. Id.

Under the former practice, it was held that the following elements must be alleged in order to constitute a sufficient allegation of fraud: The intent to deceive [Calloway v. Wyatt, 246 N.C. 129, 97 S.E.2d 881 (1957)]; the specific false representations that were made [Fulton v. Talbert, 255 N.C. 183, 120 S.E.2d 410 (1961)]; that the defrauded party relied upon the misrepresentations to his detriment [Products Corporation v. Chestnutt, 252 N.C. 269, 113 S.E.2d 587 (1960)].

Petitioner's allegations amount to a mere conclusion that the antenuptial contract was fraudulently procured. Such allegations were not sufficient before the adoption of the current rules, and they are not sufficient under Rule 9(b), which is a codification of the former case law. Since petitioner has failed to allege the specific facts she intends to rely upon in establishing fraud, her pleadings have not raised a genuine issue of material fact in this regard.

Even if petitioner were not barred by the valid antenuptial contract, she would be estopped to dissent inasmuch as she accepted a $5,000 bequest and a life estate in the home from the estate. A person designated as a beneficiary cannot take under the instrument and at the same time assert a title or claim in conflict with the same writing. Rouse v. Rouse, 238 N.C. 568, 78 S.E.2d 451 (1953). Having accepted benefits$5,000 and a life estate in the "home place" petitioner may not repudiate the will and take her intestate share.

The judgment of the trial court is correct in holding that the pleadings and interrogatories presented no genuine issue of *577 material fact and that respondent was entitled to judgment as a matter of law.

No error.

CAMPBELL, J., concurs.

VAUGHN, J., dissents.