Ryan v. Wachovia Bank & Trust Co., No. 670

Docket NºNo. 670
Citation235 N.C. 585, 70 S.E.2d 853
Case DateMay 21, 1952
CourtUnited States State Supreme Court of North Carolina

Page 853

70 S.E.2d 853
235 N.C. 585
RYAN,
v.
WACHOVIA BANK & TRUST CO. (High Point Branch).
No. 670
Supreme Court of North Carolina.
May 21, 1952

Crissman & Bencini and Roberson, Haworth & Reese, all of High Point, for defendant, appellant.

Frazier & Frazier, Greensboro, for plaintiff, appellee.

DENNY, Justice.

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

Page 855

was filed without probable cause and that, therefore, all the caveators in the land devised [235 N.C. 588] were forfeited under the forfeiture clause in the testator's will. Stacy, C. J., in speaking for the Court, said: '* * * by the clear weight of authority, both in England and in this country, a condition of forfeiture, if the devisee shall dispute the will, is valid in law. Cooke v. Turner, 15 M. & W. (Eng.) 735; Perry v. Rogers, 52 Tex.Civ.App. 594, 114 S.W. 897; Donegan v. Wade, 70 Ala. 501; Hoit v. Hoit, 42 N.J.Eq. 388, 7 A. 856; Thompson v. Gaut, Tenn. 314; 28 R.C.L., 315, and cases there cited.

'It is further held that, where there exists probalis causa litigandi, that is, a probable or plausible ground for the litigation, a condition in a will that a legatee shall forfeit his legacy by contesting the will is not binding, and under such circumstances a contest does not work a forfeiture. Morris v. Burroughs, 1 Atk. (Eng.) 399; Powell v. Morgan, 2 Vern. (Eng.) 90; In re Friend's Estate, 209 Pa. 442, 58 A. 853, 68 L.R.A. 447; Smithsonian Institution v. Meech, 169 U.S. 398, 18 S.Ct. 396, 42 L. Ed. 793. But here it is found as a fact that no probable cause existed for the filing of the caveat.'

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...

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12 practice notes
  • Haynes v. First Nat. State Bank of New Jersey
    • United States
    • United States State Supreme Court (New Jersey)
    • July 22, 1981
    ...Estate, 190 Kan. 498, 376 P.2d 784 (1963); In re Hartz's Estate, 247 Minn. 362, 77 N.W.2d 169 (1956); Ryan v. Wachovia Bank & Trust Co., 235 N.C. 585, 70 S.E.2d 853 (1952); Wadsworth v. Brigham, 125 Or. 428, 259 P. 299 (1927); In re Friend's Estate, 209 Pa. 442, 58 A. 853 (1904); Rouse v. B......
  • Rape v. Lyerly, No. 94
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • June 26, 1975
    ...affirmative answer to the fourth issue, a finding that this action was brought in good faith. In this connection, see Ryan v. Trust Co., 235 N.C. 585, 588, 70 S.E.2d 853, 855 (1952); and Haley v. Pickelsimer, 261 N.C. 293, 134 S.E.2d 697 Defendants further contend plaintiffs did not commenc......
  • Womble v. Gunter, Nos. 4584
    • United States
    • Virginia Supreme Court of Virginia
    • November 26, 1956
    ...81 Penn. Law Review, 267; 3 Washington Law Review, 45; I Roper on Legacies, p. 795; 8 Ala. Lawyer, 144; Ryan v. Wachovia Bank & Trust Co., 235 N.C. 585, 70 S.E.2d Some authorities maintain that in passing upon the defense of good faith and probable cause to a 'no contest' provision in a wil......
  • Duncan v. Rawls, A17A2052
    • United States
    • United States Court of Appeals (Georgia)
    • March 16, 2018
    ...§ 72–2–537 ; Nev. Rev. Stat. 137.005 (4), 163.00195 (4) ; NJ Stat 3B:3–47 ; N.M. Stat. § 45–2–517 ; Ryan v. Wachovia Bank & Trust Co. , 235 N.C. 585, 588, 70 S.E.2d 853 (1952) ; N.D. Cent. Code § 30.1–20–05 ; Barr v. Dawson , 158 P.3d 1073, 1076 (Okla. Civ. App. 2007) ; 20 Pa. Cons. Stat. §......
  • Request a trial to view additional results
12 cases
  • Haynes v. First Nat. State Bank of New Jersey
    • United States
    • United States State Supreme Court (New Jersey)
    • July 22, 1981
    ...Estate, 190 Kan. 498, 376 P.2d 784 (1963); In re Hartz's Estate, 247 Minn. 362, 77 N.W.2d 169 (1956); Ryan v. Wachovia Bank & Trust Co., 235 N.C. 585, 70 S.E.2d 853 (1952); Wadsworth v. Brigham, 125 Or. 428, 259 P. 299 (1927); In re Friend's Estate, 209 Pa. 442, 58 A. 853 (1904); Rouse v. B......
  • Rape v. Lyerly, No. 94
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • June 26, 1975
    ...affirmative answer to the fourth issue, a finding that this action was brought in good faith. In this connection, see Ryan v. Trust Co., 235 N.C. 585, 588, 70 S.E.2d 853, 855 (1952); and Haley v. Pickelsimer, 261 N.C. 293, 134 S.E.2d 697 Defendants further contend plaintiffs did not commenc......
  • Womble v. Gunter, Nos. 4584
    • United States
    • Virginia Supreme Court of Virginia
    • November 26, 1956
    ...81 Penn. Law Review, 267; 3 Washington Law Review, 45; I Roper on Legacies, p. 795; 8 Ala. Lawyer, 144; Ryan v. Wachovia Bank & Trust Co., 235 N.C. 585, 70 S.E.2d Some authorities maintain that in passing upon the defense of good faith and probable cause to a 'no contest' provision in a wil......
  • Duncan v. Rawls, A17A2052
    • United States
    • United States Court of Appeals (Georgia)
    • March 16, 2018
    ...§ 72–2–537 ; Nev. Rev. Stat. 137.005 (4), 163.00195 (4) ; NJ Stat 3B:3–47 ; N.M. Stat. § 45–2–517 ; Ryan v. Wachovia Bank & Trust Co. , 235 N.C. 585, 588, 70 S.E.2d 853 (1952) ; N.D. Cent. Code § 30.1–20–05 ; Barr v. Dawson , 158 P.3d 1073, 1076 (Okla. Civ. App. 2007) ; 20 Pa. Cons. Stat. §......
  • Request a trial to view additional results

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