Whitehurst v. Gotwalt

• Decision Date: 29 April 1925
• Docket Number: 13.
• Citation: Whitehurst v. Gotwalt, 189 N.C. 577, 127 S.E. 582 (N.C. 1925)
• Parties: WHITEHURST ET AL. v. GOTWALT ET AL.
• Court: North Carolina Supreme Court

127 S.E. 582

189 N.C. 577

WHITEHURST ET AL. v. GOTWALT ET AL.

No. 13.

Supreme Court of North Carolina

April 29, 1925

Appeal from Superior Court, Pasquotank County; Devin, Judge.

Petition for partition by Mary Whitehurst and others against Minerva Bradford Gotwalt and others. From an order declaring and adjusting interests of the parties, petitioners and certain defendants appeal. Affirmed.

Neutrals took no part of forfeited estate originally intended for caveators.

Thompson & Wilson and McMullan & Le Roy, all of Elizabeth City, for appellants.

Ehringhaus & Hall, of Elizabeth City, for appellees.

STACY C.J.

The case was heard on the evidence submitted and facts agreed with the stipulation that the court might find further facts from the evidence in the case, if necessary, to a final determination of the rights of the parties. A jury trial was expressly waived.

On the hearing, the interest and rights of the respective parties were properly made to depend, first upon the validity, and second, if valid, upon the rightful interpretation of the following clause in the will of D. B. Bradford:

"I do hereby and herein instruct and demand of my executrix, that if any attempt is made on the part of any of the beneficiaries herein named, to defeat, nullify, or contest in law or otherwise, the disposition or division of my property as herein made by me, that those so endeavoring to defeat, nullify or contest my wishes as herein expressed, shall not be entitled to the part I have intended for them, and shall only receive the sum of $10 each, and that part or portion of my estate herein set apart for them, shall revert to the other legatees or beneficiaries as may stand firmly by my wishes as herein expressed, and defend the distribution and disposal herein made by me of my property."

The locus in quo was devised by the testator to the petitioners and some of the respondents as tenants in common. We deem it unnecessary to set out the precise interest of each, as it would serve no useful purpose, under the view we take of the case.

There was a caveat filed to the will of D. B. Bradford, in which D. B. Fearing, J. B. Fearing, and J. B. Griggs each joined. Upon the issue of devisavit vel non, raised thereby, the will was sustained. 183 N.C. 6. His honor finds as a fact that the caveat was filed without probable cause, and that therefore all the interests of the caveators in the lands sought to be partitioned were forfeited under the above clause in the testator's will.

It was also found by the court below that the petitioner, Mary Whitehurst, and the respondents, Keith Fearing and Woodson Fearing, neither joined in said caveat proceeding nor assisted the propounders in the defense of the will, but that all remained neutral throughout the contest. Upon this finding it was adjudged that their interests, as devisees, were unaffected by the caveat proceeding.

It was further found as a fact that Minerva I. Gotwalt, Erskine Ehringhaus, Sr., Erskine Ehringhaus, Jr., Camille Ehringhaus Foster, William Ehringhaus, Shelby Ehringhaus Gill, Elizabeth Ehringhaus Johnson, and J. B. Culpepper, "legatees or beneficiaries" under the will, stood firmly by the wishes of the testator as therein expressed, and defended the distribution and disposal made therein by him of his property. Upon this finding, it was adjudged that the part or portion of the testator's estate set apart by him for the caveators should be divided equally (per stirpes) among the legatees or beneficiaries who stood firmly by the testator's wishes.

The parties to the present proceeding therefore are divided into three classes: (1) "Caveators," whose interests in the lands have been forfeited, under the terms of the will, because of their efforts to caveat same in the absence of probable cause for such proceeding; (2) "neutrals," who take their original interests under the will, unaffected by the caveat proceeding; and (3) "propounders," who stood firmly by the will, and whose devises are increased by an equal division among them (per stirpes) of the forfeited interests of the caveators.

The caveators and the neutrals appeal, contending (1) that the forfeiture is void; and (2) that, if valid, the forfeited shares of the caveators do not go over to the propounders, but "revert" to the testator's heirs generally.

First as to the validity of the forfeiture, it is the doctrine of the English courts that a condition subsequent, where the subject of disposition is personal property, is to be regarded as in terrorem only, and that a legacy will not be forfeited by a contest of the will, instituted by the legatee, unless by the terms of the will the legacy be given over to another, or be specifically directed to fall into the residue, upon breach of the condition. But this doctrine has never been applied to devises of real estate. 2 Jarman on Wills, § 682. The distinction seems to have crept into the English law from the fact that the ecclesiastical courts early adopted the rule of the civil law which, contrary to the common law, regarded such conditions as in terrorem only. Later, the courts of equity followed the ecclesiastical courts with respect to bequests or legacies of personal property, and the common law with respect to devises of land. Bradford v. Bradford, 19 Ohio St. 546, 2 Am. Rep. 419; Estate...