Johnson v. Stevenson, 457

• Decision Date: 20 January 1967
• Docket Number: No. 457,457
• Citation: 269 N.C. 200,152 S.E.2d 214
• Court: North Carolina Supreme Court
• Parties: Mattie Jones JOHNSON v. Woodrow W. STEVENSON, Kathlene Stevenson Kay, and Grace Stevenson.

Page 214

152 S.E.2d 214

269 N.C. 200

Mattie Jones JOHNSON v. Woodrow W. STEVENSON, Kathlene Stevenson Kay, and Grace Stevenson.

No. 457.

Supreme Court of North Carolina.

Jan. 20, 1967.

Jerry C. Wilson, High Point, for plaintiff appellant.

Walser, Brinkley, Walser & McGirt, Lexington, for defendant appellees.

BOBBITT, Justice.

Although plaintiff does not so allege in express terms, her allegations, and the exhibits attached to the complaint, clearly imply that the paper writing dated March 14, 1933, was probated in common form on December 9, 1940, as the last will and testament of Jno. C. Stevenson and his wife, Nannie C. Stevenson, before the Clerk of the Superior Court of Davidson County, North Carolina. Plaintiff's brief assumes this to be the fact. The gravamen of her complaint is that defendants hold the legal title they acquired under said will in trust for plaintiff to the extent of her interest as an heir of her parents. Hence, disposition of this appeal requires that this Court accept as fact for present purposes that said will was duly probated in common form on December 9, 1940.

'Under the statute now codified as G.S. § 31--19, the order of the Clerk admitting the paper writing to probate constitutes conclusive evidence that the paper writing is the valid will of the decedent until it is declared void by a competent tribunal on an issue of Devisavit vel non in a caveat proceeding.' Holt v. Holt, 232 N.C. 497, 61 S.E.2d 448; Hargrave v. Gardner, 264 N.C. 117, 141 S.E.2d 36. 'The attack must be direct and by Caveat. A collateral attack is not permitted.' In re Will of Charles, 263 N.C. 411, 415, 139 S.E.2d 588, 591, and cases cited.

Under the provisions of G.S. § 31--32, prior to the 1951 amendment (Session Laws of 1951, Chapter 496), plaintiff had seven years from December 9, 1940, to file a Caveat to said will. Nothing in the record before us indicates she filed such Caveat.

The only decision cited by plaintiff is Bohannon v. Trotman, 214 N.C. 706, 200 S.E. 852, in which this Court affirmed a judgment which, as part of a general family settlement, approved a compromise of the claim plaintiff had asserted in a prior action. In the prior action, Bohannon v. Wachovia Bank & Trust Co., 210 N.C. 679, 188 S.E. 390, this Court, as a basis for approval of an order for examination of an adverse party, held the plaintiff's affidavits alleged facts sufficient to disclose plaintiff had a cause of action. The plaintiff had asserted, Inter alia, that F. M. Bohannon, plaintiff's grandfather, 'had formed the fixed intention and settled purpose of providing for the plaintiff in the distribution of his estate, and would have carried out this intention and purpose but for the wrongful acts of Laura Webb Bohannon and Maude Bohannon Trotman,' who, 'by a conspiracy and false and fraudulent representations, deprived the plaintiff of a share in the estate of F. M. Bohannon,' by prevailing upon F. M. Bohannon 'to change a definite plan which he had made to leave to the plaintiff either by will or a trust instrument a large share in his estate.' These distinguishing facts are noted: (1) F. M. Bohannon, by reason of said false and fraudulent representations, was induced to abandon his Fixed intention to settle a large part of his estate on the plaintiff. (2) Since his father was living, plaintiff could not as heir Caveat his grandfather's will. Moreover, plaintiff would receive nothing from his grandfather's estate in the event it were adjudged his grandfather died intestate.

A factual situation more analogous to that presently under consideration was involved in Holt v. Holt, supra, a decision cited and stressed by defendants. In Holt, separate actions were instituted by each of two sons of A. F. Holt, Sr., to recover damages on the ground their brothers, the defendants, by means of undue influence they exerted upon him, had induced the father to execute certain conveyances and a will in which the defendants were named as grantees and as devisees. It was held the will could be attacked only by Caveat; and that, unless and until the will was declared invalid in a Caveat proceeding, all rights existing in A. F. Holt, Sr., at the time of his death, to attack conveyances he had made, vested in the defendants as beneficiaries under the will. Although the sole relief sought by the plaintiffs was damages for alleged tortious conduct, the thrust of the decision is in accord with the conclusion stated below.

Here plaintiff seeks to establish a constructive trust. 'A constructive trust is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee.' Cardozo, J., in Beatty v. Guggenheim Exploration Co., 225 N.Y. 380, 386, 122 N.E. 378, 380, quoted with approval in Atkinson v. Atkinson, 225 N.C. 120, 127, 33 S.E.2d 666, 671. 'The forms and varieties of these (constructive) trusts, which are termed Exmaleficio or Ex delicto, are practically without limit.' 4 Pomeroy's Eq. Jurisprudence (Fifth Edition), § 1053. This statement is quoted with approval in Bryant v. Bryant, 193 N.C. 372, 377, 137 S.E. 188, 190, 51 A.L.R. 1100.

The position most favorable to plaintiff is stated by Curtis, J., in Caldwell v. Taylor, 218 Cal. 471, 23 P.2d 758, 88 A.L.R. 1194, as follows: 'Since the probate of a will is a matter exclusively within the jurisdiction of the probate court equity may not set aside the probate, but it may declare the beneficiary a trustee for those who have been defrauded. (Citations) And such character of relief is common. The judgment, order, or decree from the effect of which relief is sought cannot constitute a bar to equitable relief. A proceeding for equitable relief is not a collateral attack, and since its sole aim and purpose is to avoid the effect of said judgment, the doctrine of res judicata can have no application to such judgment. (Citations).' Even so, a constructive trust engrafted upon a devisee's legal title changes radically the legal significance and consequences of the...