Pendergrass' Will, In re
| Decision Date | 29 January 1960 |
| Docket Number | No. 400,400 |
| Citation | 251 N.C. 737,112 S.E.2d 562 |
| Parties | In the Matter of the WILL OF Mary T. PENDERGRASS, Deceased. |
| Court | North Carolina Supreme Court |
Banzet & Banzet, Warrenton, for propounders, appellants.
A. A. Bunn, Gholson & Gholson, Henderson, John Kerr, Jr., William W. Taylor, Jr., and Charles T. Johnson, Jr., Warrenton, for caveators, appellees. MOORE, Justice.
Propounders insist a new trial should be granted and assign three reasons therefor: (1) That the court erred in admitting in evidence the consent judgment of 1948 and ruling, in effect, that propounders were estopped thereby to probate the will of Mary T. Pendergrass, for that 'a contract, cast in the form of a consent judgment, among children of a living mother to nullify her will is contrary to the public policy of the State' and void, and, if otherwise valid, is void as to Sally Read Pendergrass for want of consideration; (2) that there was error in the holding that propounders were concluded on the issue of mental capacity by the consent judgment, in that an adjudication of incompetency is only evidence of mental incapacity in another and different action; and (3) that in its charge to the jury the court erroneously directed a verdict in favor of caveators who had the burden of proof on the issue of mental capacity and undue influence.
It is against the public policy of North Carolina to fraudulently suppress, withhold, conceal or destroy a will. The destruction or concealment of a will, for a fraudulent purpose, has by statute been made a misdemeanor. G.S. § 14-77. If an executor fails to apply for probate of a will, any devisee, legatee or other interested party may make application after a limited time. G.S. § 31-13. Every clerk of the court has authority to compel the production of a will withheld or concealed. G.S. § 31-15. '* * * (I)t is the policy of the law that wills should be probated, and that the rights of the parties in cases of dispute should be openly arrived at, according to the orderly process of law.' Wells v. Odum, 207 N.C. 226, 228, 173 S.E.563, 564.
'It is a settled principle of law in this State that a consent judgment is the contract of the parties entered upon the records with the approval and sanction of a court of competent jurisdiction, and that such contracts cannot be nullified or set aside without the consent of the parties thereto, except for fraud or mistake, and that in order to vacate such judgment an independent action must be instituted.' Spruill v. Nixon, 238 N.C. 523, 526, 78 S.E.2d 323, 326. If not against public policy, the consent judgment admitted in evidence in the case at bar is a valid and subsisting contract and binding upon the propounders and caveators as well.
It is our opinion, and we so hold, that the consent judgment was a family settlement. Tise v. Hicks, 191 N.C. 609, 613, 132 S.E. 560, 562. Our Superior Courts will exercise their equity jurisdiction to affirm and approve family agreements when fairly and openly made. Reynolds v. Reynolds, 208 N. C. 578, 622, 182 S.E. 341. Our Court is in accord with the holdings in other jurisdictions. Family settlements are almost universally approved. Annotation, 97 A.L.R., Will, Agreement among beneficiaries, section II, at pages 469-470. Wisconsin seems to be the only jurisdiction that holds a directly contrary view. Graef v. Kanouse, 1931, 205 Wis. 597, 238 N.W. 377.
Equity regards substance, not form, and is not bound by names parties give their transactions. Schumaker v. Eastern Bank & Trust Co., 4 Cir., 1931, 52 F.2d 925. W. H. Pendergrass in open court solemnly agreed that the jury should find that his mother was mentally incompetent (a fact to which four physicians and eight lay witnesses attested), that he knew she was incompetent when he made the contract with her and procured from her a conveyance of her land, and that the consideration given her by him was inadequate. In substance this was an admission of fraud. There are reasonable inferences which may be drawn from the record, that he and his wife had closed their doors to other members of the family and would not permit the other children to see their mother, and that he knew that the purported will had been executed pending the trial of the cause in which the consent judgment was entered. By the terms of the consent judgment he was released from any accounting of his transactions with his mother and from payment of rent. He and his wife, together with all the other children of Mary T. Pendergrass and their spouses, consented and agreed in writing, with the approval of the court, 'that any will or wills which she (Mary T. Pendergrass) has made in the past shall not be offered for probate' and if offered for probate shall be 'caveated and this judgment will be res adjudicata of the mental incapacity of Mary T. Pendergrass,' that they shall be fully bound by the judgment and it shall 'operate as an estoppel.' The agreement recites it was to settle all matters in controversy between the children and prevent any future controversy, that there might be peace and harmony among them. Yet, W. H. Pendergrass and wife, Sally Read Pendergrass, seek to probate the will and take the property in contravention of their solemn engagement.
The sense and intent of the agreement is that the children and their spouses put an end to controversy, avoid further litigation, live in peace, harmony, mutual respect and natural affection as befits a family, and upon death of the mother share equally in her estate, if any she has.
In North Carolina a devisee or legatee may disclaim or renounce his right under a will. Perkins v. Isley, 224 N.C. 793, 797, 32 S.E.2d 588. An agreement in writing between the widow and heirs of a decedent to share in and distribute his estate in a different manner from that provided in his will has been upheld. Kirkman v. Hodgin, 151 N.C. 588, 66 S.E. 616. Our Court declines to "make a will' for the decedent, agreeable to the desire of the parties interested; In re Will of Westfeldt, 188 N.C. 702, 125...
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