Reese v. Carson , 3 N.C. App. 99 ( 1968 )

164 S.E.2d 99 (1968) 3 N.C. App. 99

Mrs. Sol REESE, Mary Ring, Sue McCall, Eula Ball, Edith McIntyre and Bud McCullough
v.
Louise CARSON, Herman McCullough, and Joel H. Walker, Individually and as Executor of the Estate of Erline Duncan Walker, Deceased.

No. 6828SC419.

Court of Appeals of North Carolina.

November 20, 1968.

Loftin & Loftin, by E. L. Loftin, Asheville, for plaintiff appellants.

Landon Roberts, Asheville, for Louise Carson and Herman McCullough, defendant appellants.

Harold K. Bennett, Asheville, for Joel H. Walker, defendant appellee.

BROCK, Judge.

Appellants concede, and properly so, that the failure of Erline Duncan Walker to file a final account in the Superior Court before her death would not preclude a determination that there had been a complete distribution of the estate of William T. Duncan. Their contention is that a complete distribution was not accomplished because the $4,000.00 bequest to Joel H. Walker, as provided in the Will of William T. Duncan, was never paid.

Each of the checks in payment of the specific bequests of cash under the Will of William T. Duncan, including the one payable to Joel H. Walker for his specific bequest, was dated and signed by Erline Duncan Walker on 29 November 1963, almost a year before her death. Each of these checks was drawn on the joint bank account of Erline Duncan Walker and her husband, Joel H. Walker, wherein the personal funds of both were on deposit. Each of these checks, with the exception of the one payable to Joel H. Walker, was subsequently negotiated and charged by the bank against the joint account of Erline Duncan Walker and Joel H. Walker.

Joel H. Walker, the only witness called to testify by either side, testified that he and his wife were with the co-executors in the office of Mr. Pennell, attorney for the co-executors, when the checks for the specific bequests were prepared and signed. He testified there was some discussion concerning the check drawn payable to him, and that Mr. Pennell advised him that "there wasn't any use to cash this check and draw my own money out of the bank and put it right back in bank again under the circumstances." He further testified that he agreed not to present the check to the bank, and that he has never presented it to the bank.

It is quite clear that the agreement of Erline Duncan Walker to pay the bequests, costs, commissions, and taxes from her and her husband's personal funds was for the purpose of avoiding the necessity of a sale of the real estate which was a part of the residue of the estate that would pass to her. This agreement was in the nature of a family settlement. "Family settlements for distribution of estates contrary to testamentary dispositions are almost universally approved, upheld and enforced, where the rights of creditors are not impaired and in the absence of fraud." In re Will of Pendergrass, 251 N.C. 737, 112 S.E.2d 562. Joel H. Walker, by his conduct, concurred in this arrangement. On 3 May 1966 the co-executors were discharged by the court from further responsibility.

"The right of a testamentary beneficiary to renounce or decline a devise or bequest in his favor is generally recognized. The law does not compel a devisee to accept a devise against his consent, and, as is sometimes said, it is optional with a devisee whether to accept or decline the devise however beneficial it may be to him. The motives of the donee in declining the gift are immaterial, at least so long as he receives no fraudulent benefit for the renunciation." 57 Am.Jur., Wills, § 1566, p. 1070; In re Will of Pendergrass, supra; Perkins v. Isley, 224 N.C. 793, 32 S.E.2d 588. Clearly the conduct on the part of Joel H. Walker in this case was to accomplish the same purpose as the contract negotiated by the co-executors with his wife, i. e., to prevent the necessity of sale of the real estate for the purpose of paying the cash bequests. No fraudulent benefit was gained by him in his conduct.

"The view that the renunciation of a devise or bequest need not be made in writing, but may be effected by parol, has been recognized in a number of cases." Annotation: 93 A.L.R.2d 71 (1964). "In a number of cases an effective renunciation of a devise or bequest was found, solely or primarily, from the fact that the beneficiary, although not expressly renouncing the gift, deliberately refused to enter into possession of the devised or bequeathed property, or to exercise control over it, or to assert the rights or interest to be acquired therein." Annotation: 93 A.L.R.2d 72 (1964). "In North Carolina a devisee or legatee may disclaim or renounce his right under a will." In re Will of Pendergrass, supra.

We hold that, under the circumstances of this case, by agreeing not to negotiate the check, coupled with his conduct in not negotiating the check, Joel H. Walker effectively renounced the bequest to him and that a complete distribution of the estate of William T. Duncan was accomplished before the death of Erline Duncan Walker; and that, under the terms of the Will, the residue of the estate of William T. Duncan vested in Erline Duncan Walker prior to her death. It follows that Item IX of the Will of William T. Duncan is not operative and the beneficiaries named therein are not entitled to receive any devise or bequest under its provisions.

If the correct result has been reached by the trial court, its judgment should not be disturbed even though some of the reasons assigned therefor may not be correct. State ex rel. East Lenoir Sanitary District v. City of Lenoir, 249 N.C. 96, 105 S.E.2d 411.

The judgment of the trial court is

Affirmed.

BRITT and FRANK M. PARKER, JJ., concur.