In Re the Will of Goodson , 4 N.C. App. 257 ( 1969 )

166 S.E.2d 447 (1969) 4 N.C. App. 257

In the Matter of the WILL of Alice B. GOODSON, Deceased.

No. 6910SC12.

Court of Appeals of North Carolina.

April 2, 1969.

Yarborough, Blanchard, Tucker & Yarborough, by Irvin B. Tucker, Jr., Raleigh, for caveator appellants.

Douglass & Douglass, by Clyde A. Douglass, II, Raleigh, for propounder appellee.

BRITT, Judge.

The first question presented is whether the lower court erred in failing to charge the jury on the presumption of fraud arising from dealings within a fiduciary relationship. The caveators contend that Mrs. Partin was the general agent of the decedent, that the decedent relied upon Mrs. Partin to handle all her business affairs, and that, therefore, the burden was upon the propounder to show that the transaction was open, fair and honest.

On this point, caveators rely principally on the case of McNeill v. Mc Neill, 223 N.C. 178, 25 S.E.2d 615. It is clear that no presumption of fraud arises out of the parent-child relationship standing alone. Walters v. Bridgers, 251 N.C. 289, 111 S.E.2d 176; Gerringer v. Gerringer, 223 N.C. 818, 28 S.E.2d 501. As was stated in Davis v. Davis, 236 N.C. 208, 72 S.E.2d 414, we have here "a family relationship, not a fiduciary one." In the McNeill case, the beneficiary was not the child of the testatrix but was a cousin. Moreover, the testatrix had executed a written power of attorney to said cousin, Johnnie L. McNeill, and had also deeded large blocks of her property to him for little or no consideration. Also, there was clear evidence that Johnnie L. McNeill had acted as agent for and in behalf of the testatrix in the operation of her farm. In the case at hand, the evidence was that the beneficiary had moved to the deceased's home under an agreement with the other children that she have the income from the homeplace farm in return for staying with and looking after her mother. The evidence was that the beneficiary paid all expenses of said farm and kept the income, without recourse or explanation to the deceased. There was no evidence of procurement of the will by the beneficiary but only of the service and care which a parent might, in the main, expect and desire from her child.

We hold that the evidence of a fiduciary relationship was insufficient to require a charge on the presumption of fraud arising from such a relationship.

Caveators contend next that the trial court erred in its charge to the jury in defining and explaining undue influence. In their brief, they cite and quote from In Re Will of Thompson, 248 N.C. 588, 104 S.E.2d 280. In this opinion by Parker, J. (now C. J.), we find the following:

"The undue influence which renders a will invalid must be of a kind which operates on the mind of the testator at the very time the will is made, and causes its execution. Page on Wills, Lifetime Ed., Vol. 1, sec. 191, where many cases are cited; 94 C.J.S. Wills § 224, pp. 1071-1073. ``It is not material when the undue influence was exercised, if it was present and operating on the mind of the testator at the time the will was executed.' 57 Am.Jur., Wills, sec. 353.

Undue influence is frequently employed surreptitiously, and is chiefly shown by its results. When the issue of undue influence is raised, the question presented is usually one of the effect of a long course of conduct upon the mind of the testator at the time the will is made, and the evidence by which it is established is usually circumstantial. In Re Will of Lomax, 226 N.C. 498, 39 S.E.2d 388; In Re Stephens' Will, 189 N.C. 267, 126 S.E. 738; In Re Will of Everett, 153 N.C. 83, 68 S.E. 924."

Although the trial court in the instant case did not charge the exact words quoted from the THOMPSON opinion, we hold that the charge was in substantial compliance and was not prejudicial to the caveators.

Finally, the caveators contend that the charge was not in compliance with G.S. § 1-180 because of the failure to relate the law of undue influence to the facts of the case. The record reveals that after defining undue influence, the court enumerated some of the factors which might be considered by the jury in determining whether undue influence was exercised upon the deceased. In so doing, the court set out the factors in terms matching expressly the facts as the jury might have found them. We hold that the charge, considered contextually, was in substantial compliance with the statute.

We conclude that the caveators had a fair trial, free from prejudicial error.

No error.

MALLARD, C. J., and FRANK M. PARKER, J., concur.