Godwin v. Wachovia Bank & Trust Co., 670

• Decision Date: 14 June 1963
• Docket Number: No. 670,670
• Citation: 259 N.C. 520,131 S.E.2d 456
• Court: North Carolina Supreme Court
• Parties: N. H. GODWIN, Trustee for Angier Avenue Baptist Church, et al. v. WACHOVIA BANK & TRUST COMPANY, Executor Under the Purported Last Will and Testament of Frank C. Griffin, Deceased, Charlie C. Griffin and Essie Lenora Griffin Stevenson.

Page 456

131 S.E.2d 456

259 N.C. 520

N. H. GODWIN, Trustee for Angier Avenue Baptist Church, et al. v. WACHOVIA BANK & TRUST COMPANY, Executor Under the Purported

Last Will and Testament of Frank C. Griffin,

Deceased, Charlie C. Griffin and Essie

Lenora Griffin Stevenson.

No. 670

Supreme Court of North Carolina.

June 14, 1963

Bryant, Lipton, Bryant & Battle, Durham, for plaintiff appellant.

Spears, Spears & Barnes, Durham, for defendants appellees.

DENNY, Chief Justice.

It is universally recognized in this country that a power of attorney, unless coupled with an interest, is terminated by the death of the principal. The power of attorney involved in this case was not coupled with an interest and was revoked upon the death of Nell J Griffin. Fisher v. Southern Loan & Trust Co., 138 N.C. 90, 50 S.E. 592; Citizens Bank v. Grove, 202 N.C. 143, 162 S.E.204; Dowling v. Winters, 208 N.C. 521, 181 S.E. 751; Julian v. Lawton, 240 N.C. 436, 82 S.E.2d 210.

The execution of the trust agreement under consideration was not acknowledged as required by G.S. § 52-12. Even so, Chapter 1178 of the 1957 Session Laws of North Carolina purports to cure this defect. The Act, which became effective 10 June 1957, provides: 'Any contract between husband and wife coming within the provisions of G.S. § 52-12 executed between July 1, 1955 and the effective date of this Section which does not comply with the requirement of a private examination of the wife and which is in all other respects regular is hereby validated and confirmed to the same extent as if the examination of the wife had been separate and apart from the husband.'

Our decisions have been to the effect that an attempted conveyance by a wife to the husband, directly or indirectly, without the private examination and certificate as required by G.S. § 52-12, is absolutely void. Foster v. Williams, 182 N.C. 632, 109 S.E. 834; Ingram v. Easley, 227 N.C. 442, 42 S.E.2d 624, and cases cited therein; Honeycutt v. Citizens National Bank, 242 N.C. 734, 89 S.E.2d 598; Davis v. Vaughn, 243 N.C. 486, 91 S.E.2d 165.

We have also expressed doubt as to whether or not such defective acknowledgment could be rendered valid by a subsequently passed statute. Foster v. Williams, supra. Be that as it may, conceding but not deciding that this trust agreement was void as an inter vivos or active trust during the lifetime of the Griffins, such agreement was incorporated in the respective wills of the Griffins by reference and made an integral part thereof as effectively, in our opinion, as if the trust agreement had been set out in full in each of the Griffins' wills.

In the case of Watson v. Hinson, 162 N.C. 72, 77 S.E. 1089, Hoke, J., speaking for the Court said: 'It is well recognized in this state that a will, properly executed, may so refer to another unattested will or other written paper or document as to incorporate the defective instrument and make the same a part of the perfect will, the conditions being that the paper referred to shall be in existence at the time the second will is executed, and the reference to it shall be in terms so clear and distinct that from a perusal of the second will or with the aid of parol or other proper testimony full assurance is given that the identity of the extrinsic paper has been correctly ascertained. The principle is sometimes referred to as 'the doctrine of incorporation by reference,' and is very well stated by Chief Justice Gray in Newton v. Seaman's Friend Society, 130 Mass. 91, as follows: 'If a will, executed and witnessed as required by statute, incorporates in itself by reference any document or paper not so executed and witnessed, whether the paper referred to be in the form of a will or codicil, or of a deed or indenture, or of a mere list or memorandum, the paper referred to, if it was in existence at the time of the execution of the will, and is identified by clear and satisfactory proof as the paper referred to therein, takes effect as part of the will, and should be admitted to probate as such.' While there are some discrepancies in the application of the principle to the facts of the different cases, this statement is in accord with the great weight of authority here and in other jurisdictions in this country and in England, where the subject has been very much considered.'

In 94 C.J.S. Wills § 163, page 952, et seq., it is said: 'The doctrine of incorporation by reference, as applied to wills, is followed in many jurisdictions. Under this doctrine, and subject to certain conditions and limitations, a properly executed will incorporates in itself by reference any document or paper not so executed, so as to take effect as part of the will, whether such document or paper be in the form of a will, codicil, contract, deed, or other written form of conveyance of realty, mere list, schedule, or memorandum. If the document is incorporated by reference it makes no difference whether or not the document of itself was valid at law.'

In Montgomery v. Blankenship, 217 Ark. 357, 230 S.W.2d 51, 21 A.L.R.2d 212, the Court said: 'As stated in 1 Page on Wills (Lifetime Ed.) Sec. 266, p. 522: 'If incorporated by reference it makes no difference whether the original document of itself was valid at law or not. A deed invalid because it never was delivered, may be incorporated in a will. A prior defectively executed will, or the will of another person, or a part of the will of another person, may thus be incorporated. * * * The incorporated document may be treated as part of the will for the purpose of ascertaining the beneficiaries and the share to be given to each."

In the case of Fifth Third Union Trust Co. v. Wilensky, 79 Ohio App. 73, 70 N.E.2d 920, the Court said: 'A deed, a contract, or any other instrument may be incorporated in a will by reference, and its terms employed as testamentary clauses, although such instrument may have lost its force as to the peculiar original purpose of the document.'

Likewise, in In re Sciutti's Estate, 371 Pa. 536, 92 A.2d 188, it was held that 'an extrinsic writing, having no validity in itself as a will, nevertheless may be incorporated by reference as part of a valid will.'

In the case of Clark v. Citizens National Bank of Collingswood, 38 N.J.Super. 69, 118 A.2d 108, the Court held, contrary to the above views, to the effect that where no valid trust existed, the trust instrument could not be incorporated by reference in a will. However, this seems to be the minority view.

The evidence in this case is to the effect that the Griffins first executed the trust agreement on 13 October 1956 and then immediately thereafter executed their respective wills.

Furthermore, the Griffins were not responsible for the failure of their attorney to have the trust agreement properly executed in accordance with the provisions of G.S. § 52-12. Even so, as stated in Lawrence v. Ashba, 115 Ind.App. 485, 59 N.E.2d 568, '[i]t is apparent however that their minds did meet on a particular testamentary disposition of the property to accomplish a particular purpose, and that they intended the wills made pursuant thereto to remain unrevoked at their death. The mutual agreement of the makers of the wills was sufficient consideration to bind the promisors. Equity will enforce such an agreement when well and fairly founded, and will not suffer one of the contracting parties to defraud and defeat his obligation, but will fasten a trust upon the property involved. Plemmons v. Pemberton, supra (1940, 346 Mo. 45, 139 S.W.2d 910); Sample v. Butler University, 1937, 211 Ind. 122, 4 N.E.2d 545, 5 N.E.2d 888, 108 A.L.R. 857; Brown v. Johanson, 1921, 69 Colo. 400, 194 P. 943; 69 C.J., p. 1302, § 2725.'

The appellant assigns as error the refusal of the court below to permit the plaintiff to testify regarding the instructions given him by the Griffins in connection with the preparation of the power of attorney, the trust agreement, and the wills involved herein, as well as to conversations with the Griffins in respect thereto. This evidence was excluded by reason of the provisions of G.S. § 8-51.

The testimony of a witness is incompetent under the provisions of the above statute when it appears (1) that such witness is a party, or interested in the event, (2) that his testimony relates to a personal transaction or communication with the...