Ryan v. Wachovia Bank & Trust Co.
Decision Date | 21 May 1952 |
Docket Number | No. 670,670 |
Citation | 235 N.C. 585,70 S.E.2d 853 |
Court | North Carolina Supreme Court |
Parties | RYAN, v. WACHOVIA BANK & TRUST CO. (High Point Branch). |
Crissman & Bencini and Roberson, Haworth & Reese, all of High Point, for defendant, appellant.
Frazier & Frazier, Greensboro, for plaintiff, appellee.
Two questions are presented for consideration and determination. (1) Was the trial judge justified in finding as a fact that the plaintiff had probable cause for caveating her father's will and that in so doing she acted in good faith? (2) Does the finding that a caveator acted in good faith and with probable cause in caveating a will, entitle such caveator to take a legacy thereunder where the instrument contains a no-contest or forfeiture clause?
The first question must be resolved in favor of the plaintiff. Findings of fact by the trial judge, when authorized by law or consent of the parties, are as conclusive as when found by a jury, if there is any competent evidence to support them. There is evidence to support the finding of probable cause and good faith. Hence, such finding is binding on us. Matthews v. Fry, 143 N.C. 384, 55 S.E. 787; Caldwell County v. George, 176 N.C. 602, 97 S.E. 507; Eggers v. Stansbury, 177 N.C. 85, 97 S.E. 619; Tyer v. J. B. Blades Lumber Co., 188 N.C. 268, 124 S.E. 305; Tinker v. Rice Motors, Inc., 198 N.C. 73, 150 S.E. 701; Blades Lumber Co. v. Finance Co., 204 N.C. 285, 168 S.E. 219; Peoples Bank & Trust Co. v. Tar River Lumber Co., 221 N.C. 89, 19 S.E.2d 138; Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351; Radio Station v. Eitel-McCullough, 232 N.C. 287, 59 S.E.2d 779.
The second question has not been decided in this jurisdiction unless we consider what was said by way of dictum in Whitehurst v. Gotwalt, 189 N.C. 577, 127 S.E. 582, 584, as binding on us. In that case, the will involved contained a nocontest or forfeiture clause. A caveat was filed and upon the issue of devisavit vel non, raised thereby, the will was sustained. The court found as a fact that the caveat was filed without probable cause and that, therefore, all the caveators in the land devised were forfeited under the forfeiture clause in the testator's will. Stacy, C. J., in speaking for the Court, said:
In a number of jurisdictions it has been held that a clause in a will providing for forfeiture of the interest of any beneficiary contesting the instrument or its provisions, is valid and enforceable, even though such contest might have been instituted in good faith and with probable cause. In re Kitchen, 192 Cal. 384, 220 P. 301, 30 A.L.R. 1008; Rudd v. Searles, 262 Mass. 490, 160 N.E. 882, 58 A.L.R. 1548; Schiffer v. Brenton, 247 Mich. 512, 226 N.W. 253; Rossi v. Davis, 345 Mo. 362, 133 S.W.2d 363, 125 A.L.R. 1111; Bender v. Bateman, 33 Ohio App. 66, 168 N.E. 574; Barry v. American Security & T. Co., 77 U.S.App.D.C. 351, 135 F.2d 470, 146 A.L.R. 1204.
It seems, however, that the weight of authority in this country supports the view that a no-contest or forfeiture clause in a will is subject to the exception that where the contest or other opposition of the beneficiary is made in good faith and with probable cause, such clause is not binding and a forfeiture will not result under such circumstances. South Norwalk Trust Co. v. St. John, 92 Conn. 168, 101 A. 961, Ann.Cas.1918E, 1090; In re Cocklin's Estate, 236 Iowa 98, 17 N.W.2d 129, 157 A.L.R. 584; In re Kathan's Will, Sur., 141 N.Y.S. 705; Wadsworth v. Brigham, 125 Or. 428, 259 P. 299, 266 P. 875; In re Friend's Estate, 209 Pa. 442, 58 A. 853, 68 L.R.A. 447; Rouse v. Branch, 91 S.C. 111, 74 S.E. 133, 39 L.R.A.,N.S., 1160, Ann.Cas.1913E, 1296; Tate v. Camp, 147 Tenn. 137, 245 S.W. 839, 26 A.L.R. 755; Calvery v. Calvery, 122 Tex. 204, 55 S.W.2d 527; In re Chappell's Estate, 127 Wash. 638, 221 P. 336; Dutterer v. Logan, 103 W.Va. 216, 137 S.E. 1, 52 A.L.R. 83; In re Keenan's Will, 188 Wis. 163, 205 N.W. 1001, 42 A.L.R. 836. In our opinion, these authorities give sound and logical reasons for the adoption of the probable cause rule.
In the case of South Norwalk Trust Co. v. St. John, supra [92 Conn. 168, 101 A. 963], the Court said:
In In re Kathan's Will, supra , the Court said: 'We must remember that the statute of wills is a part of the public law, and a condition that an heir shall not be permitted to show testator's want of testamentary capacity or his other noncompliance with the statute of the state without...
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