Holt v. Holt

• Decision Date: 18 October 1950
• Docket Number: No. 236,236
• Court: North Carolina Supreme Court
• Parties: HOLT, v. HOLT et al. (two cases).

Page 448

61 S.E.2d 448

232 N.C. 497

HOLT, v. HOLT et al. (two cases).

No. 236

Supreme Court of North Carolina.

Oct. 18, 1950

Wellons, Martin & Wellons, Levinson & Batton, Smithfield, and McLean & Stacy, Lumberton, for plaintiffs, appellants.

Abell, Shepard & Wood, Smithfield, for defendants, appellees.

ERVIN, Justice.

The answers deny the material allegations of the complaints, plead various statutes of limitation, and assert a want of capacity in plaintiffs to prosecute the suits. In consequence, the establishment of three distinct propositions is indispensable to the causes of action alleged by plaintiffs. These are: (1) That the decedent, A. F. Holt, Sr., was induced to execute the conveyances in controversy by fraud or undue influence of the defendants and their alleged co-conspirator, Clifton G. Holt; (2) that the cause of action arising out of this wrong existed in A. F. Holt, Sr., at the time of his death; and (3) that such cause of action thereupon passed to the plaintiffs in their capacities as heirs and next of kin of A. F. Holt, Sr.

The soundness of this observation becomes manifest when due heed is paid to relevant things. To create civil liability for conspiracy, a wrongful act resulting in injury to another must be done by one or more of the conspirators pursuant to the common scheme and in furtherance of the common object. The gravamen of the action is the resultant wrong, and not the conspiracy itself. Ordinarily the conspiracy is important only because of its bearing upon rules of evidence, or the persons liable. 11 Am.Jur., Conspiracy, section 45.

In the last analysis, the wrong charged in the instant cases is that of procuring property from the decedent, A. F. Holt, Sr., by fraud or undue influence. As we shall see, this was a wrong against the decedent, and not a wrong against the plaintiffs. Hence the plaintiffs are asserting alleged rights which are essentially derivatives from their ancestor. The significance of this fact must not be obscured in any degree by the allegations of the complaints that the alleged conspirators procured the conveyances from A. F. Holt, Sr., to deprive the plaintiffs of their rights of inheritance as prospective heirs and distributees of their then living ancestor.

A child possesses no interest whatever in the property of a living parent. He has a mere intangible hope of succession. Allen v. Allen, 213 N.C. 264, 195 S.E. 801. His right to inherit the property of his parent does not even exist during the lifetime of the latter. Whitley v. Arenson, 219 N.C. 121, 12 S.E.2d 906; Bemis v. Waters, 170 S.C. 432, 170 S.E. 475. Such right arises on the parent's death, and entitles the child to take as heir or distributee nothing except the undivised property left by the deceased parent. Chinnis v. Cobb, 210 N.C. 104, 185 S.E. 638; Gosney v. McCullers, 202 N.C. 326, 162 S.E. 746.

In so far as his children are concerned, a parent has an absolute right to dispose of his property by gift or otherwise as he pleases. He may make an unequal distribution of his property among his children with or without reason. These things being true, a child has no standing at law or in equity either before or after the death of his parent to attack a conveyance by the parent as being without consideration, or in deprivation of his right of inheritance. Wootton v. Keaton, 168 Ark. 981, 272 S.W. 869; Ehrlich v. Tritt, 316 Ill. 221, 147 N.E. 40; Childress v. Childress, 298 Ill. 185, 131 N.E. 586; Rhodes v. Meredith, 260 Ill. 138, 102 N.E. 1063, Ann.Cas.1914D, 416; McLaughlin v. McLaughlin, 241 Ill. 366, 89 N.E. 645; Jones v. Jones, 213 Ill. 228, 72 N.E. 695; Thorne v. Cosand, 160 Ind. 566, 67 N.E. 257; Lefebure v. Lefebure, 143 Iowa 293, 121 N.W. 1025; Clester v. Clester, 90 Kan. 638, 135 P. 996, L.R.A.1915E, 648; Doty v. Dickey, 96 S.W. 544, 29 Ky.Law. Rep. 900; Rossi v. Davis, 345 Mo. 362, 133 S.W.2d 363, 125 A.L.R. 1111; Brashears v. State ex rel. Oklahoma Public Welfare Commission, 194 Okl. 663, 154 P.2d 101; Mandel v. Bron, 270 Pa. 566, 113 A. 834; Hanes v. Hanes, Tex.Com.App., 239 S.W. 190, overuling motion for rehearing 234 S.W. 1078; In re Eckert's Estate, 14 Wash. 2d 497, 128 P.2d 656; In re Peterson's Estate, 12 Wash.2d 686, 123 P.2d 733; Roy v. Roy, 113 Wash. 609, 194 P. 590; Schumacher v. Draeger, 137 Wis. 618, 119 N.W. 305.

When a person is induced by fraud or undue influence to make a conveyance of his property, a cause of action arises in his favor, entitling him, at his election, either to sue to have the conveyance set aside, or to sue to recover the damages for the pecuniary injury inflicted upon him by the wrong. Van Gilder v. Bullen, 159 N.C. 291, 74 S.E. 1059; Modlin v. Roanoke Railroad & Nav. Co., 145 N.C. 218, 58 S.E. 1075. But no cause of action arises in such case in favor of the child of the person making the conveyance for the very simple reason that the child has no interest in the property conveyed and consequently suffers no legal wrong as a result of the conveyance. Carter v. McNeal, 86 Ark. 150, 110 S.W. 222; Moss v. Edwards, 146 Ga. 686, 92 S.E. 213; Pidcock v. Reid, 145 Ga. 103, 88 S.E. 564; Huffman v. Beamer, 191 Iowa 893, 179 N.W. 543; Seager v. Tholens, 182 App.Div. 317, 170 N.Y.S. 482; Doson v. Kuykendall, Tex.Civ.App., 127 S.W.2d 348.

The person making the conveyance may put an end to his cause of action during his lifetime by reducing it to judgment, or by ratifying the conveyance after the fraud has been discovered or the undue influence has ceased to operate. 26 C.J.S., Deeds, § 67. Besides, the cause of action may become barred by an applicable statute of limitation. G.S. § 1-52, subd. 9; Little v. Bank of Wadesboro, 187 N.C. 1, 121 S.E. 185; Muse v. Hathaway, 193 N.C. 227, 136 S.E. 633. But if the cause of action still exists in the person making the conveyance at the time of his death, it passes to those who then succeed to his rights. 18 C.J., Deeds, § 180; 26 C.J.S., Descent and Distribution, § 85. See, also in this connection: Ellis v. Barnes, 181 N.C. 476, 106 S.E. 29; Plemmons v. Murphy, 176 N.C. 671, 97 S.E. 648; Brown v. Brown, 171 N. C. 649, 88 S.E. 870.

The persons succeeding to the unimpaired right of a decedent to ratify or repudiate a conveyance for fraud or undue influence vary, depending upon whether the decedent died testate or intestate, and whether the property involved is real or personal. When the property is realty, the right passes to the heirs in case of intestacy, Pritchard v. Smith, 160 N.C. 79, 75 S.E. 803, and to the devisees in case the grantor leaves a will. Flythe v. Lassiter, 199 N.C. 804, 153 S.E. 844; Speed v. Perry, 167 N.C. 122, 83 S.E. 176. As a rule, actions to impeach transfers of personalty made by a decedent in his lifetime must be brought by his personal representative, and not by his legatees or distributees. In re Acken's Estate, 144 Iowa 519, 123 N.W. 187, Ann.Cas.1912A, 1166; 21 Am.Jur., Executors and Administrators, section 908. The legatees or distributees may sue, however, to recover personal assets of an estate when fraud, collusion, or a refusal to sue on the part of the personal representative renders such action necessary for the protection of ultimate rights accruing to them under a will or the statute of distribution. 26 C.J.S., Descent and Distribution, § 85; 34 C.J.S., Executors and Administrators, § 739.

The plaintiffs claim succession to the right to prosecute these actions as heirs and next of kin of their ancestor, A. F. Holt, Sr. Their testimony reveals, however, that the Clerk of the Superior Court of Johnston County has admitted to probate in common form as the last will of A. F. Holt, Sr., a certain paper writing, which is sufficient in form and substance to vest in the defendants all rights existing in A. F. Holt, Sr., at the time of his death. To be...