In Re Pendergrass'will

Annotate this Case

112 S.E.2d 562 (1960)

251 N.C. 737

In the Matter of the WILL OF Mary T. PENDERGRASS, Deceased.

No. 400.

Supreme Court of North Carolina.

January 29, 1960.

*565 Banzet & Banzet, Warrenton, for propounders, appellants.

A. A. Bunn, Gholson & Gholson, Henderson, John Kerr, Jr., William W. Taylor, Jr., and Charles T. Johnson, Jr., Warrenton, for caveators, appellees.

*566 MOORE, Justice.

Propounders insist a new trial should be granted and assign three reasons therefor: (1) That the court erred in admitting in evidence the consent judgment of 1948 and ruling, in effect, that propounders were estopped thereby to probate the will of Mary T. Pendergrass, for that "a contract, cast in the form of a consent judgment, among children of a living mother to nullify her will is contrary to the public policy of the State" and void, and, if otherwise valid, is void as to Sally Read Pendergrass for want of consideration; (2) that there was error in the holding that propounders were concluded on the issue of mental capacity by the consent judgment, in that an adjudication of incompetency is only evidence of mental incapacity in another and different action; and (3) that in its charge to the jury the court erroneously directed a verdict in favor of caveators who had the burden of proof on the issue of mental capacity and undue influence.

It is against the public policy of North Carolina to fraudulently suppress, withhold, conceal or destroy a will. The destruction or concealment of a will, for a fraudulent purpose, has by statute been made a misdemeanor. G.S. § 14-77. If an executor fails to apply for probate of a will, any devisee, legatee or other interested party may make application after a limited time. G.S. § 31-13. Every clerk of the court has authority to compel the production of a will withheld or concealed. G.S. § 31-15. "* * * (I)t is the policy of the law that wills should be probated, and that the rights of the parties in cases of dispute should be openly arrived at, according to the orderly process of law." Wells v. Odum, 207 N.C. 226, 228, 176 S.E. 563, 564.

"It is a settled principle of law in this State that a consent judgment is the contract of the parties entered upon the records with the approval and sanction of a court of competent jurisdiction, and that such contracts cannot be nullified or set aside without the consent of the parties thereto, except for fraud or mistake, and that in order to vacate such judgment an independent action must be instituted." Spruill v. Nixon, 238 N.C. 523, 526, 78 S.E.2d 323, 326. If not against public policy, the consent judgment admitted in evidence in the case at bar is a valid and subsisting contract and binding upon the propounders and caveators as well.

It is our opinion, and we so hold, that the consent judgment was a family settlement. "Family settlements, * * * when fairly made; and when they do not prejudice the rights of creditors, are favorites of the law. * * * They are made in recognition of facts and circumstances known, often, only to those who have lived in the sacred family circle, and which a just family pride would not expose to those who neither understand nor appreciate them. They proceed from a desire on the part of all who participate in them to adjust property rights, not upon strict legal principles, however just, but upon such terms as will prevent possible family dissensions, and will tend to strengthen the ties of family affection. The law ought to, and does, respect such settlements; it does not require that they shall be made in accord with strict rules of law; nor will they be set aside because of objections based upon mere technicalities." Tise v. Hicks, 191 N.C. 609, 613, 132 S.E. 560, 562. Our Superior Courts will exercise their equity jurisdiction to affirm and approve family agreements when fairly and openly made. Reynolds v. Reynolds, 208 N. C. 578, 622, 182 S.E. 341. Our Court is in accord with the holdings in other jurisdictions. Family settlements are almost universally approved. Annotation, 97 A.L.R., Will, Agreement among beneficiaries, section II, at pages 469-470. Wisconsin seems to be the only jurisdiction that holds a directly contrary view. Graef v. Kanouse, 1931, 205 Wis. 597, 238 N.W. 377.

Equity regards substance, not form, and is not bound by names parties give their transactions. Schumaker v. Eastern *567 Bank & Trust Co., 4 Cir., 1931, 52 F.2d 925. W. H. Pendergrass in open court solemnly agreed that the jury should find that his mother was mentally incompetent (a fact to which four physicians and eight lay witnesses attested), that he knew she was incompetent when he made the contract with her and procured from her a conveyance of her land, and that the consideration given her by him was inadequate. In substance this was an admission of fraud. There are reasonable inferences which may be drawn from the record, that he and his wife had closed their doors to other members of the family and would not permit the other children to see their mother, and that he knew that the purported will had been executed pending the trial of the cause in which the consent judgment was entered. By the terms of the consent judgment he was released from any accounting of his transactions with his mother and from payment of rent. He and his wife, together with all the other children of Mary T. Pendergrass and their spouses, consented and agreed in writing, with the approval of the court, "that any will or wills which she (Mary T. Pendergrass) has made in the past shall not be offered for probate" and if offered for probate shall be "caveated and this judgment will be res adjudicata of the mental incapacity of Mary T. Pendergrass," that they shall be fully bound by the judgment and it shall "operate as an estoppel." The agreement recites it was to settle all matters in controversy between the children and prevent any future controversy, that there might be peace and harmony among them. Yet, W. H. Pendergrass and wife, Sally Read Pendergrass, seek to probate the will and take the property in contravention of their solemn engagement.

The sense and intent of the agreement is that the children and their spouses put an end to controversy, avoid further litigation, live in peace, harmony, mutual respect and natural affection as befits a family, and upon death of the mother share equally in her estate, if any she has.

In North Carolina a devisee or legatee may disclaim or renounce his right under a will. Perkins v. Isley, 224 N.C. 793, 797, 32 S.E.2d 588. An agreement in writing between the widow and heirs of a decedent to share in and distribute his estate in a different manner from that provided in his will has been upheld. Kirkman v. Hodgin, 151 N.C. 588, 66 S.E. 616. Our Court declines to "`make a will' for the decedent, agreeable to the desire of the parties interested; In re Will of Westfeldt, 188 N.C. 702, 125 S.E. 531; unless the doctrine of family settlement applies, when the jurisdiction is somewhat extended * *" Bailey v. McLain, 215 N.C. 150, 155, 1 S.E.2d 372, 375, 120 A.L.R. 1487. Caveators may be estopped by their conduct from attacking the validity of a will. In re Will of Averett, 206 N.C. 234, 173 S.E. 621.

Family settlements for distribution of estates contrary to testamentary dispositions are almost universally approved, upheld and enforced, where the rights of creditors are not impaired and in the absence of fraud. Annotation, 38 A.L.R., Family Settlement, section II, at pages 735-736; 57 Am.Jur., Wills, sec. 1005, p. 653. But such agreements are uniformly declared invalid unless all who receive an interest under the will join in the agreement. Greene v. King, 1926, 104 Conn. 97, 132 A. 411; Hunter v. Jordan, 1930, 158 Wash. 539, 291 P. 471. Family agreements for settlement of estates contrary to the provisions of wills have been upheld even when made before the death of the testator. Annotations, 38 A.L.R., Family Settlements, sec. IV, at pages 753-754, and 118 A.L.R., Family Settlement, Sec. IV, at pages 1362-1363.

"Moreover, according to the great weight of authority, in the absence of fraud, a contract to dispose of the property in a testate estate in a manner different from the will is valid, even though it contemplates the rejection of the will when offered for probate or its setting aside when admitted to probate. * * * The foregoing views are based upon the theory that *568 while a testator has a right to dispose of his property by will and may make such disposition as may suit his purpose so long as it is not prohibited by law, the persons interested in his estate either as beneficiaries under the will or by intestate succession have an equal right to renounce the will by agreement. Most authorities hold that an agreement to disregard the provisions of a will and not to probate it, or, if it has already been probated, to set the probate aside, is not invalid as contrary to public policy, or as in violation of a statute penalizing the fraudulent destruction of a will, and that such an agreement will be enforced except as to persons in interest under the will who are not parties thereto." 57 Am.Jur., Wills, sec. 1013, p. 657. See also Annotation, 117 A.L.R., Suppression of Will, sec. II, at pages XXXX-XXXX-XXXX; Brakefield v. Baldwin, 1933, 249 Ky. 106, 60 S.W.2d 376.

In the instant case, we hold that the consent judgment is not contra bonos mores and is valid. All persons named as beneficiaries in the purported will are parties to the consent judgment. Rights of creditors are unimpaired. It was openly and fairly made and no taint of fraud is apparent. There is ample consideration to support the agreement. The mutual promises for the sake of family harmony and good will, the settlement of controversies and the purpose to avoid further litigation outweigh mere pecuniary considerations. Tise v. Hicks, supra; Annotation, 97 A.L.R., Will, Agreement among beneficiaries, sec. V, at pages 471-472.

It was proper to plead the consent judgment in the caveat proceedings. "The modern tendency is to extend the jurisdiction of the probate court in respect to matters incidental and collateral to the exercise of its recognized powers." In re Noble's Estate, 1935, 141 Kan. 432, 41 P.2d 1021, 1024, 97 A.L.R. 463. All matters pertaining to the probate of the will in solemn form and to the distribution of decedent's estate are matters for the probate court. We do not intimate that propounders should not have exhibited the paper writing to the clerk of superior court. In all cases it is the best practice to deliver purported wills to the probate court along with all other related documents that proper orders or disposition may be made with respect thereto.

Ordinarily an adjudication of incompetency is not res judicata of the mental condition of the subject of the inquiry, especially as to those not parties or privies to the hearing, and only raises a rebuttable presumption of mental incapacity. Medical College of Virginia, Medical Division v. Maynard, 236 N.C. 506, 509, 73 S.E.2d 315. But in this case the consent judgment may not be limited to its evidentiary value with respect to the mental condition of the testator. It estops all parties thereto from insisting on the probate of the will or, at least, from taking any benefits thereunder.

Whether the court was correct in giving a peremptory instruction affecting the validity of the will is unimportant in this case. At least the paper writing is an empty shell so far as the contracting parties are concerned; and all the devisees and legatees therein are parties to the contract. The Court will not permit the propounders to circumvent and ignore their solemn agreement. Equity will not allow technicalities of procedure to defeat that which is eminently right and just. We have repeatedly held that "if the correct result has been reached, the judgment should not be disturbed even though the court may not have assigned the correct reasons for the judgment entered." State ex rel. East Lenoir Sanitary District v. City of Lenoir, 249 N.C. 96, 99, 105 S.E.2d 411, 413.

No error.

PARKER and HIGGINS, JJ., took no part in the consideration or decision of this case.

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