Lenoir Rhyne College v. Thorne

• Decision Date: 15 December 1971
• Docket Number: No. 7126SC689,7126SC689
• Citation: 185 S.E.2d 303,13 N.C.App. 27
• Court: North Carolina Court of Appeals
• Parties: LENOIR RHYNE COLLEGE et al. v. Eleanor Galloway THORNE, Guardian ad litem for Nancy Beth Thorne, Minor, andFirst Union National Bank of North Carolina, Executor of the Will and Estate ofHelen L. Riegel, Deceased.

Page 303

185 S.E.2d 303

13 N.C.App. 27

LENOIR RHYNE COLLEGE et al. v. Eleanor Galloway THORNE, Guardian ad litem for Nancy Beth Thorne, Minor, andFirst Union National Bank of North Carolina, Executor of the Will and Estate ofHelen L. Riegel, Deceased.

No. 7126SC689.

Court of Appeals of North Carolina.

Dec. 15, 1971 Certiorari Denied by Supreme Court March 7, 1972.

Sigmon & Sigmon by Jesse C. Sigmon, Jr., Newton, for Lenoir Rhyne College; and Farris & Mallard by E. Lynwood Mallard, Charlotte, for Myrtice C. Lochmann, plaintiffs appellees.

Helms, Mulliss & Johnston by E. Osborne Ayscue, Jr., and Robert B. Cordle, Charlotte, for First Union National Bank; and John E. McDonald, Jr., Charlotte, for Eleanor Galloway Thorne, Guardian Ad Litem, defendants appellants.

PARKER, Judge.

The sole exception in the record is to the entry of the judgment. 'This exception presents the single question whether the facts found by the court are sufficient to support the judgment, or, stated differently, whether the court correctly applied the law to the facts found.' Redwine v. Clodfelter, 226 N.C. 366, 38 S.E.2d 203.

The courts have generally looked with favor upon family settlement agreements whereby a will contest is avoided or the settlement and distribution of an estate is promoted. Annotation, 29 A.L.R.3d 8. Such agreements are said to be 'bottomed on a sound public policy which seeks to preserve estates and to promote and encourage family accord.' Fish v. Hanson, 223 N.C. 143, 25 S.E.2d 461, and 'when fairly made, and when they do not prejudice the rights of creditors, are favorites of the law.' Tise v. Hicks, 191 N.C. 609, 132 S.E. 560. 'But such agreements will not be approved if the rights of infants are prejudiced thereby. Neither will the terms of a testamentary trust be modified merely because the beneficiaries thereof dislike its provisions. The modification of the terms of such a trust will be approved only when such modification is deemed necessary in order to preserve the trust.' Rice v. Wachovia Bank & Trust Co., 232 N.C. 222, 59 S.E.2d 803.

In O'Neil v. O'Neil, 271 N.C. 106, 155 S.E.2d 495, a case involving both rights of infants and modification of the dispositive provisions of a testamentary trust, Bobbitt, J. (now C.J.), speaking for our Supreme Court, said:

'The provisions of a will or testamentary trust may be modified by a family settlement agreement only where there exists some exigency or emergency not contemplated by the testator. . . .

The mere fact that a caveat has been field, standing alone, is not sufficient ground for modification of the dispositive provision of the will. The outcome of the litigation must be in doubt to such extent that it is advisable for persons affected to accept the proposed modifications rather than run the risk of the more serious consequences that would result from an adverse verdict.'

Tested by the foregoing principles, the trial court was clearly correct in approving...