In Re Estate of Loftin

208 S.E.2d 670 (1974)

285 N.C. 717

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

No. 36.

Supreme Court of North Carolina.

October 10, 1974.

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

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

BRANCH, Justice.

We first consider whether contracts with respect to her property and property rights constituted a bar to plaintiff's dissent and application for a year's allowance.

It is well settled in this jurisdiction that a man and woman contemplating marriage may enter into a valid contract with respect to the property and property rights of each after the marriage, and such contracts will be enforced as written. Stewart v. Stewart, 222 N.C. 387, 23 S.E.2d 306; Perkins v. Brinkley, 133 N.C. 86, 45 S.E. 465; Harris v. Russell, 124 N.C. 547, 32 S.E. 958. After marriage the persons may release and quitclaim any rights as they might respectively acquire or may have acquired by marriage in the property of each other. G.S. § 52-10. Such transactions between husband and wife are, however, subject to the provisions of G.S. § 52-6, which provides that "no contract between husband and wife made during their coverture shall be valid to affect or change any part of the real estate of the wife . . . unless such contract . . . is in writing, and is acknowledged before a certifying officer who shall make a private examination of the wife according to the requirements formerly prevailing for conveyance of land."

Antenuptial contracts, when properly executed and acknowledged, are not against public policy and may act as a bar *674 to the wife's right to dissent and to petition for a year's allowance. Turner v. Turner, 242 N.C. 533, 89 S.E.2d 245; Perkins v. Brinkley, supra.

A married woman or widow may directly attack the certificate of her acknowledgment and privy examination respecting the execution of instruments during coverture which affect or change any part of the real estate belonging to her. The general grounds for permissible attack in this instance are (1) fraud, duress or undue influence known of or participated in by the grantee; (2) no appearance before the officer or no examination had; (3) forgery; or (4) mental incapacity or infancy. Eubanks v. Eubanks, 273 N.C. 189, 159 S.E.2d 562; Lee v. Rhodes, 230 N.C. 190, 52 S.E.2d 674.

We note that there is a vast difference between proof of no appearance and the denial of material findings in the certificate. As to the latter, when the certificate is regular in form and complies with G.S. § 52-6, it is conclusive as to all matters which the statute requires the officer to certify except upon a showing of fraud or imposition in the procurement of the acknowledgment. Lee v. Rhodes, supra; Best v. Utley, 189 N.C. 356, 127 S.E. 337.

Thus, unless the certificate is attacked upon one of the above-stated grounds, when petitioner admitted her appearance before the Clerk of Superior Court, his certificate, regular in form, became conclusive and established that she acknowledged the due execution of the instrument and the purposes therein expressed; that she was privately examined separate and apart from her husband touching her voluntary execution of the same; that she signed the same freely and voluntarily without fear or compulsion of her said husband; and that it had been made to appear to the certifying officer's satisfaction, and he found as a fact, that the execution of the instrument by petitioner was not unreasonable or injurious to her.

It is obvious that plaintiff does not rely upon mental incapacity, infancy or forgery as grounds for attack on the contracts. We therefore look to the remaining possible grounds upon which she must rely.

In petitioner's "reply to response for application for year's allowance" in Loftin v. Loftin, it was, in part, alleged:

". . . That at the time of the purported execution of the Antenuptial Contract, the undersigned widow and the deceased had been married for some ten years and 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."

We note that no similar allegations were contained in her "reply to answer to dissent to will" in the action of In Re Loftin.

Petitioner's strongest averments as to fraud or duress were to the effect that she did not know and was not advised as to the value of the assets of her husband's estate at the time she executed the instruments; that she signed the duplicate contract at her husband's insistence; and that although she appeared before the Clerk of Superior Court of Lenoir County on both occasions, she denied that she executed the instruments freely and voluntarily or that she was properly examined by the Clerk.

In order to obtain relief from a contract on the ground of fraud, the moving party must show false representation of a past or subsisting material fact, made with fraudulent intent and with knowledge of its falsity, which representation was relied upon when the party executed the instrument. Davis v. Davis, 256 N.C. 468, 124 S.E.2d 130; Barnes v. House, 253 N.C. 444, 117 S.E.2d 265.

Undue influence is a fraudulent influence over the mind and will of another *675 to the extent that the professed action is not freely done but is in truth the act of the one who procures the result. Lee v. Ledbetter, 229 N.C. 330, 49 S.E.2d 634; Greene v. Greene, 217 N.C. 649, 9 S.E.2d 413. Duress is the result of coercion and may be described as the extreme of undue influence and may exist even when the victim is aware of all facts material to his decision. Link v. Link, 278 N.C. 181, 179 S.E.2d 697; 25 Am.Jur.2d, Duress and Undue Influence § 1, page 353.

We agree with the holding of the Court of Appeals that petitioner's allegations of fraud amounted to a mere conclusion not in compliance with G.S. § 1A-1, Rule 9(b), or our former decisions, which require particular statements of the circumstances allegedly constituting fraud or duress. Products Corp. v. Chestnutt, 252 N.C. 269, 113 S.E.2d 587; G.S. § 1A-1, Rule 9(b). Certainly there were no allegations sufficient to allege undue influence or duress.

However, we call attention to the fact that this case differs procedurally from the case of Van Every v. Van Every, 265 N.C. 506, 144 S.E.2d 603, upon which the Court of Appeals partially relied. In Van Every there was a motion for judgment on the pleadings, and the cause was dismissed for failure of the plaintiff to allege facts which, if found to be true, would permit a legitimate inference of fraud. In instant case, there was a motion for summary judgment pursuant to G.S. § 1A-1, Rule 56, which made it incumbent upon the trial judge to consider the pleadings, affidavits, interrogatories, deposition and admissions which were before him. After such consideration, the trial judge correctly dismissed the actions upon finding that no genuine issue of material fact was raised in either proceeding.

We also observe in passing that the Court of Appeals used language which seemed to interpret our decision in Turner v. Turner, 242 N.C. 533, 89 S.E.2d 245, to require that an antenuptial agreement satisfy the provisions of G.S. § 52-6. It appears to us that this Court in Turner, while considering the total circumstances surrounding the execution of the antenuptial agreement, merely observed that the Clerk of Superior Court of Gates County did conduct a privy examination incorporating in his certificate the statement that the agreement was not unreasonable or injurious to the femme contractor.

In our opinion the correct rule is stated by Dr. Robert E. Lee in his North Carolina Family Law, Vol. 2, § 181, page 364, as follows:

"N.C. Gen.Stat. § 52-12 [now renumbered as § 52-6] is not applicable to antenuptial agreements. It is limited in its application to contracts between the husband and wife which affect the real estate of the wife and separation agreements. Antenuptial agreements are not made between a husband and a wife `during their coverture.' A postnuptial agreement between the husband and wife which affects or changes any part of the wife's real estate must, of course, comply with the provisions of N.C. Gen.Stat. § 52-12 [now renumbered as § 52-6]."

We do not deem it necessary to discuss the question of whether petitioner was barred by her acceptance of benefits under the will since we hold that the contracts affecting her real property effectively barred her rights to dower and a year's allowance.

The opinion of the Court of Appeals is

Affirmed.

BOBBITT, C. J., not sitting.