In re Lloyd's Will

• Citation: 77 S.E. 955,161 N.C. 557
• Parties: In re LLOYD'S WILL.
• Decision Date: 09 April 1913
• Court: United States State Supreme Court of North Carolina

77 S.E. 955

161 N.C. 557

In re LLOYD'S WILL.

Supreme Court of North Carolina

April 9, 1913

Appeal from Superior Court, Orange County; Whedbee, Judge.

In the matter of the will of Thomas F. Lloyd. Caveat to probate by W. P. Lloyd. From a judgment sustaining probate, caveator appeals. Affirmed.

Where an heir and beneficiary under a will was made a party to a proceeding to construe a will, his failure to deny the complaint, which averred the validity of the will, or to ask that judgment be suspended on the other allegations until his caveat should be adjudicated, precludes him from attacking the validity of the will after decree is entered, and the property sold and distributed.

While a caveat to a will is not barred by the statute of limitations until after the lapse of seven years from probate in common form, this does not prevent the application of the principle of res judicata in favor of a judgment construing the will and ordering the sale and distribution of the property.

Stern & Duncan, of Greensboro, and S. M. Gattis, of Hillsboro, for caveator.

John W Graham, of Hillsboro, Mangum & Woltz, of Gastonia, and Victor S. Bryant, of Durham, for propounders.

CLARK C.J.

This is an action by W. P. Lloyd to set aside the will of Thomas F Lloyd, who died in 1911, leaving a will which was duly probated. He was survived by a widow and several brothers among them the caveator, W. P. Lloyd. The widow of the testator, Caroline Lloyd, within the time prescribed by law dissented from the will. The executors brought action in September, 1911, in which the complaint alleged that Thomas F. Lloyd had left a will which had been duly admitted to probate and recorded, annexing a copy thereof as a part of the complaint, that the executors had duly qualified, that the widow had dissented, and asking that her dower should be allotted and for a construction of the will. The complaint also set out the realty and other property of the decedent, and asked that the property be sold and for such orders and decrees as might be necessary. In that proceeding all the heirs at law and devisees were made parties defendant, except these that were named as plaintiffs. The plaintiff in this action accepted service of the summons therein. A decree was entered in said action construing the will, directing the allotment of dower, the sale of realty, confirming the sale, and directing disposition of proceeds, in accordance with the prayers of the complaint.

The proceedings and judgment in the above action are pleaded as an estoppel against this proceeding to caveat the will. This plea was sustained, and the caveator W. P. Lloyd appealed. His honor properly held: "The said W. Pinkney Lloyd was estopped by the judgment and decree rendered in said action defining his rights as heir at law and next of kin of the said Thomas F. Lloyd, and, as he raised no question as to the validity and execution of the will of said Thomas F. Lloyd filed as a part of the complaint in that action, he cannot now be heard to do so. And it is therefore ordered and adjudged that the caveat filed by him be dismissed at his cost."

W. P. Lloyd, the plaintiff in this proceeding, was a party to the former action, in which the will was set out in full, its validity averred, and in which it was asked that the will be construed, the realty sold, dower allotted, and the executors instructed as to the disposition of the estate. He made no objection or exception, though he accepted service of the summons therein. All the parties were before the courts, the validity of the will was averred, and he could have made it an issue by his denial of such averment. But he did not choose to do so, and is now estopped by the judgment and decreed in that action. It may be that W. P. Lloyd, a defendant in that action and the plaintiff in this, could have treated that action as a proceeding to prove the will in solemn form. But, however that may be, he could certainly have denied the first paragraph of the complaint, which alleged the validity of the will, and have asked that the other allegations of the complaint be not passed upon until the caveat which he had filed, or would file, was adjudicated. He chose to do none of these things, and cannot now be heard to raise a contest as to the validity of the will, which he admitted by his failure to take any action.

Among the cases which sustain the judgment of the court in this matter are Fisher v. Boyce, 81 Md. 52, 31 A. 707, in which the court held that, where the executors had filed a petition to have the will construed and in which a decree was entered, the parties to that action would be estopped afterwards to allege the invalidity of the will because of duress or fraud. The court said: "With respect to the question of estoppel which is the second question raised by the appeal, we think in the present state of the record the appellees have by their conduct denied themselves the right to institute these proceedings. A party cannot either in the course of litigation or in dealings in pais occupy inconsistent positions, and, where one has an election between several inconsistent courses of action, he will be confined to that which he first adopts. Any decisive act of the party done with knowledge of his rights and the facts determines his election, and works an estoppel. It is an old rule of equity that one who has taken a beneficial interest under a will is thereby held to have confirmed and ratified every other part of the will, and he will not be permitted to set up any right or claim of his own, however legal and well founded it may otherwise have been, which would defeat, or in any way,...