Beck v. Beck , 36 N.C. App. 774 ( 1978 )

245 S.E.2d 199 (1978) 36 N.C. App. 774

Coy E. BECK, Administrator of the Estate of Blanche K. Beck, and Coy E. Beck, Individually
v.
Paul C. BECK, Peggy B. Maness, Polly B. Doby, Bobby Ray Beck, and Thomasville City Board of Education.

No. 7722SC753.

Court of Appeals of North Carolina.

June 20, 1978.

Ottway Burton, Asheboro, for plaintiff-appellant.

John T. Weigel, Jr., Greensboro, for defendants-appellees.

PARKER, Judge.

Plaintiff first contends that the trial court erred in concluding that it had no jurisdiction to hear plaintiff's claim for recovery of administrator's fees and certain expenses he incurred on behalf of the estate of Blanche K. Beck. He argues that the clerk of superior court has no jurisdiction to hear his claim for fees and expenses. The statutes provide otherwise. G.S. 28A-2-1 provides that the clerk of superior court has "jurisdiction of the administration, settlement, and distribution of estates of decedents." Except for situations in which the clerk is disqualified to act, G.S. 28A-2-3, the clerk's probate jurisdiction is original and exclusive, and a superior court judge may hear such cases only upon appeal from the clerk. G.S. 7A-241; In re Estate of Adamee, 291 N.C. 386, 230 S.E.2d 541 (1976). In the present case there was no allegation that the clerk was disqualified to act, and there have been no proceedings before the clerk on plaintiff's claims against his wife's estate. Therefore, the superior court judge properly concluded that he lacked jurisdiction to hear plaintiff's claims for recovery of fees and expenses relating to administration of his deceased wife's estate.

Turning now to plaintiff's claim to have the family settlement agreement set aside, we note that he alleged, as the grounds for his claim, that the family settlement agreement "was signed by the plaintiff without benefit of counsel and he was not aware of the full legal effects of his signing of said instrument . . . and that said agreement failed to protect the plaintiff's individual interests and the interests of the estate." Plaintiff further alleged that the agreement "was null and void, he being without counsel when he executed the said agreement and he relied upon the defendants other than the Thomasville City Board of Education to his detriment." We agree with the trial court's conclusion that these allegations fail to state a claim upon which relief can be granted.

Family settlement agreements providing for distribution of estates are favored and will be upheld if all beneficiaries are properly accounted for, if creditors are not prejudiced, and in the absence of fraud, misrepresentation, or mistake. In re Pendergrass, 251 N.C. 737, 112 S.E.2d 562 (1960); Tise v. Hicks, 191 N.C. 609, 132 S.E. 560 (1926); Reese v. Carson, 3 N.C.App. 99, 164 S.E.2d 99 (1968). Other possible grounds for setting aside a family settlement agreement include undue influence, duress, or breach of confidential or fiduciary relationship. Annot., 29 A.L.R. 3d 174 (1970); Annot., 29 A.L.R. 3d 8 (1970).

Even when viewed with the liberality required under the notice theory of pleading, plaintiff's complaint fails to allege any legally sufficient basis for setting aside the family settlement agreement in this case. No specific formalities are required for execution of a family settlement, Tise v. Hicks, supra, and absence of counsel will not defeat an otherwise valid family settlement. Plaintiff alleged that he "was not aware of the full legal effects" of the agreement, but there is no allegation that he was either unable or was denied an opportunity to read the agreement. Plaintiff alleged that he "relied upon the defendants . . . to his detriment," but there is no allegation that defendants gave him any false or misleading information. Therefore, plaintiff's second assignment of error is overruled.

In open court at the hearing on the individual defendants' motion for judgment on the pleadings, plaintiff made a motion to amend his complaint to allege that his execution of the family settlement agreement was procured by misrepresentation by the defendants. The court denied plaintiff's motion, and this denial is the basis of plaintiff's third assignment of error. Plaintiff's motion was not made until a year and a half after his complaint was filed and long after responsive pleadings had been served. Under such circumstances, "[a] motion to amend is addressed to the discretion of the court, and its decision thereon is not subject to review except in case of manifest abuse." Calloway v. Motor Co., 281 N.C. 496, 501, 189 S.E.2d 484, 488 (1972). Plaintiff has failed to show any facts or circumstances that would indicate an abuse of discretion. Therefore, this assignment of error is overruled.

The court's order dismissing plaintiff's action against the individual defendants is

Affirmed.

HEDRICK and MITCHELL, JJ., concur.