Mansour v. Rabil

• Court: North Carolina Supreme Court
• Writing for the Court: MOORE
• Citation: Mansour v. Rabil, 277 N.C. 364, 177 S.E.2d 849 (N.C. 1970)
• Decision Date: 16 December 1970
• Docket Number: No. 26,26
• Parties: Virginia R. MANSOUR and B. D. Rabil, Jr., Plaintiffs, v. Sophie S. RABIL, Albert Rabil, Sr., George V. Safy, and Richard J. Rabil, Cynthia Ann Rabil and Robert Joseph Rabil, Minors, by their Guardian Ad Litem, M. Alexander Biggs, Lester Rabil, Thelma R. Lanhan, Pauline R. Kelly, MargaretR. Greenwood,and Alice S. Lewis, Defendants, and Peoples Bank & Trust Company, Executor of the Will of Susie Rabil, Deceased, Intervenor.

Page 849

177 S.E.2d 849

277 N.C. 364

Virginia R. MANSOUR and B. D. Rabil, Jr., Plaintiffs, v. Sophie S. RABIL, Albert Rabil, Sr., George V. Safy, and Richard J. Rabil, Cynthia Ann Rabil and Robert Joseph Rabil Minors, by their Guardian Ad Litem, M. Alexander Biggs Lester Rabil, Thelma R. Lanhan, Pauline R. Kelly, MargaretR Greenwood,and Alice S. Lewis, Defendants and Peoples Bank & Trust Company, Executor of the Will of Susie Rabil, Deceased, Intervenor.

No. 26.

Supreme Court of North Carolina.

Dec. 16, 1970.

Braswell, Strickland, Merritt & Rouse by Roland C. Braswell, Goldsboro, Boyce, Mitchell, Burns & Smith by G. Eugene Boyce, Raleigh, Farris & Thomas by Allen G. Thomas, Wilson, for plaintiff appellants and plaintiff appellees.

Thorp & Etheridge by William L. Thorp, Jr., Rocky Mount, for Albert Rabil and Sophie Rabil, defendant appellants and defendant appellees.

Weeks, Muse & Brown by T. Chandler Muse, Tarboro, for George Victor Safy, defendant appellant and defendant appellee.

M. Alexander Biggs, Rocky Mount, guardian ad litem for Richard J. Rabil, Cynthia Ann Rabil and Robert Joseph Rabil, defendant appellants and defendant appellees.

Defendants Alice S. Lewis, Lester Rabil, Thelma R. Lanhan, Pauline R. Kelly, and Margaret R. Greenwood elected not to file Answer, made no appearance in this action, were not represented by counsel, and did not appeal.

S. L. Arrington, Rocky Mount, for Peoples Bank & Trust Co., executor of the will of Susie Rabil, intervenor.

MOORE, Justice.

The first question is: Was the will of B. D. Rabil and Susie Rabil executed pursuant to a valid, binding contract? There is no evidence of any contract between B. D. and Susie outside the will itself, and the contract, if any, must be determined from the language of the will.

The will of B. D. and Susie contains the following language:

'We, Betrus D. Rabil and Susie Rabil, his wife * * * do hereby make, publish and declare the following to be our joint Last Will and Testament, and We and each of us contract to and with each other that the following is our joint Will and Testament and in every respect binding on both of us.' (Emphasis added.)

'This is contractual language. It is sufficient, in conjunction with the reciprocal devises and bequests, to show the existence of a contract between the husband and wife, pursuant to which the joint will was executed by them.' Olive v. Biggs, 276 N.C. 445, 173 S.E.2d 301. The trial court, however, found that this will was not executed pursuant to and in accordance with a contract between the parties because of the failure of consideration. 'A sufficient consideration for a contract between husband and wife to make wills containing reciprocal provisions and providing for the disposition to be made of their property on the death of the survivor may exist in the promises of the spouses to one another to execute such a will provided it appears that the consideration was mutual in the respect that each spouse promised in reliance upon the promise of the other.' 57 Am.Jur. § 699 (1948). Or, as stated in Annot., 169 A.L.R. 9, 32: 'The mutual promises of husband and wife may be a consideration to support their agreement to execute jointly a will containing reciprocal provisions.' Accord, Godwin v. Wachovia Bank & Trust Co., 259 N.C. 520, 131 S.E.2d 456. In Godwin our Court quoted with approval from Lawrence v. Ashba, 115 Ind.App. 485, 59 N.E.2d 568, as follows: 'It 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 will was sufficient consideration to bind the promisors.'

The signatures of B. D. and Susie are under seals. 'At common law a seal imports a good consideration for the instrument to which it is attached, and under the strict common law doctrine, a device constituting a technical seal is conclusive evidence of the existence of a consideration, and the absence thereof cannot be shown even by clear and indisputable evidence.' 47 Am.Jur., Seals § 13 (1943); Thomason v. Bescher, 176 N.C. 622, 97 S.E. 654.

We hold there was sufficient consideration to support a contract between the parties to the will and that the trial court erred in its finding of fact No. 8, 'that Exhibit 'A' was not executed by Betrus D. Rabil and Susie Rabil pursuant to and in accordance with a contract between the parties based upon a valid consideration.'

An indivisible contract to devise real and personal property comes within the purview of G.S. § 22--2, Statute of Frauds. Pickelsimer v. Pickelsimer, 257 N.C. 696, 127 S.E.2d 557; Humphrey v. Faison, 247 N.C. 127, 100 S.E.2d 524; Jamerson v. Logan, 228 N.C. 540, 46 S.E.2d 561. But a joint will may itself be a sufficient memorandum of such contract to satisfy the Statute of Frauds. Olive v. Biggs, Supra; Godwin v. Wachovia Bank & Trust Co., Supra. This being true, the requirement of the statute is met. There was a valid contract between B. D. and Susie based upon sufficient consideration unless the contract is void because it was not executed as required by G.S. § 52--6.

The trial court held that the provisions of G.S. § 52--6 did not apply since there was no contract between the parties for want of a proper consideration. This Court having overruled that finding, the applicability of G.S. § 52--6 becomes germane. The pertinent provisions of G.S. § 52--6 are as follows:

'(a) No contract between husband and wife made during their coverture shall be valid to affect or change any part of the real estate of the wife, or the accruing income thereof for a longer time than three years next ensuing the making of such contract, nor shall any separation agreement between husband and wife be valid for any purpose, unless such contract or separation agreement is in writing, and is acknowledged before a certifying officer who shall make a private examination of the wife according to the requirements formerly prevailing for conveyance of land.

'(b) The certifying officer examining the wife shall incorporate in his certificate a statement of his conclusions and findings of fact as to whether or not said contract is unreasonable or injurious to the wife. The certificate of the officer shall be conclusive of the facts therein stated but may be impeached for fraud as other judgments may be.'

In Olive v. Biggs, Supra, our Court stated:

'* * * A contract by which one binds himself to make a specified testamentary disposition of his real property is a contract affecting that property. Consequently, a contract between husband and wife prescribing the testamentary disposition of their properties is not binding upon the wife unless the procedure prescribed by G.S. § 52--6 is followed.'

If G.S. § 52--6 is applicable, plaintiffs contend that G.S. § 52--8 and G.S. § 39--13.1(b) (curative statutes) would take this case out of the operation of G.S. § 52--6.

G.S. § 52--8 provides:

'Any contract between husband and wife coming within the provisions of G.S. 52--6 executed between January 1, 1930, and June 20, 1963, 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. This section shall not affect pending litigation.' (Emphasis added.)

G.S. § 39--13.1(b) provides:

'(b) Any deed, contract, conveyance, lease or other instrument executed prior to February 7, 1945, which is In all other respects regular except for the failure to take the private examination of a married woman who is a party to such deed, contract, conveyance, lease or other instrument is hereby validated and confirmed to the same extent as if such private examination had been taken, provided that this section shall not apply to any instruments now involved in any pending litigation.' (Emphasis added.)

G.S. § 52--8 was amended in 1967 substituting 'January 1, 1930' for 'October 1, 1954,' and G.S. § 39--13.1(b) was passed in 1969. The will in question was executed October 3, 1939, and the rights of the parties vested in 1964 upon the death of B. D. Rabil. Both G.S. § 52--8 and G.S. § 39--13.1(b) were enacted by the Legislature subsequent to 1964. A void contract cannot be validated by a subsequent act, and the Legislature has no power to pass acts affecting vested rights. Booth v. Hairston, 193 N.C. 278, 136 S.E. 879; Foster v. Williams, 182 N.C. 632, 109 S.E. 834; 7 Strong's N.C. Index 2d, Statutes § 8; 7 Strong's N.C. Index 2d, Curative Statutes § 9. It is also noted that each of the curative statutes provides that an instrument which is In all other respects regular except for the failure to take the private examination of a married woman who is a party to such instrument is validated to the same extent as if such private examination had been taken. In this case, not only was the private examination of Susie not taken but there was no finding by the certifying officer of his conclusions and findings of fact as to whether or not said contract was unreasonable or injurious to the wife as required by G.S. § 52--6(b) and no acknowledgment was taken before an officer as required by G.S. § 52--6(b).

We hold that under the provisions of G.S. § 52--6 the contract to make a will was void as to Susie and that this was not affected by the curative statutes, G.S. § 52--8 and G.S. § 39--13.1(b).

In the absence of a valid contract to the contrary, either signer of a joint will may revoke it in any manner permitted by statute during the life of all the persons signing as testators, but upon the death of one of the persons so signing without a valid revocation by that person, the will may be probated and given effect as his or her will. Thus, upon the death of B. D., the will in question was properly...