Wagner v. Honbaier

103 S.E.2d 474 (1958) 248 N.C. 363

Victor Berton WAGNER, Jesse Lee Wilson and Carl Winfred Wilson, Co-Executors under the will of Love Honbaier, deceased; Jesse Ray Honbaier, Sr., and wife, Ester Verona Honbaler; Jesse Ray Honbaler, Jr., and wife, Ella Louise Burr Honbaier; Sadie Ida Honbaier Shepherd and husband, Baxter Clay Shepherd; Katie Ester Honbaier Shoaf and husband, William Clay Shoaf; Minnie Frances Honbaier Burleson and husband, U. S. Burleson, Jr.; Dora Honbaier Greene and husband, J. Edward Greene; Vivian Ray Deal Barnette and husband, Andrew Barnette, Sr.; Ida Rachel Greene Tilley and husband, Arthur Wayne Tilley; Mary Edna Greene Phifer; Katie Lee Greene Swaringen and husband, Marshall L. Swaringen; Tommie Lee Honbaier, Sr., and wife, Pansy Honbaier; Tommie Lee Honbaier, Jr., and wife, Betty Bell Honbaier; Katie Honbaier Wagner and husband, Victor Berton Wagner, individually; Nancy Lee Wagner Thompson and husband, William T. Thompson; Minnie Honbaier Warren and husband, C. R. Warren; Addie Honbaier Lyerly and husband, Gerry J. Lyerly; Clara Honbaier Taylor and husband, James Haskel Taylor, and Carl Winfred Wilson, individually, and wife, Frances Wilson,
v.
Stephen Wayne HONBAIER, Verona Kate Shoaf, William Clay Shoaf, Jr., Terry Wayne Burleson, Patsy Ann Burleson, Jack Donald Burleson, James Edward Love Greene, Andrew Barnette, Jr., Curtis Barnette, Sylvia Barnette, Mary Anne Coveno, B. R. Phifer, Jr., Gregory Carlton Honbaier, Carolyn Fay Wagner Johnston, and Vicki Lynn Thompson, all of whom are minors; and Julian C. Johnston, husband of Carolyn Fay Wagner Johnston; the unborn issue or the unborn lineal descendants of the blood of Jesse Ray Honbaier, Sr., Dora Honbaier Greene, Tommie Lee Honbaier, Sr., and Katie Honbaier Wagner; and the unborn issue or the unborn lineal descendants of the blood of Minnie Honbaier Warren; Addie Honbaier Lyerly, Clara Honbaier Taylor and Carl Winfred Wilson.

No. 531.

Supreme Court of North Carolina.

May 21, 1958.

Graham M. Carlton, W. T. Shuford, Salisbury, Paul G. Stoner, and J. Lee Wilson, Lexington, for plaintiffs-appellee.

Charles E. Williams, Jr., T. H. Suddarth, Jr., and Hubert E. Olive, Jr., Lexington, guardians ad litem for appellants.

DENNY, Justice.

The only exceptions in the record are those noted by the guardians ad litem to the signing of the judgment. These exceptions present the single question whether the facts found by the court below are sufficient to support the judgment. Merrell v. Jenkins, 242 N.C. 636, 89 S.E.2d 242; Beaver v. Crawford Paint Co., 240 N.C. 328, 82 S.E.2d 113; Halifax Paper Co. v. Roanoke Rapids Sanitary District, 232 N.C. 421, 61 S.E.2d 378; Redwine v. Clodfelter, 226 N.C. 366, 38 S.E.2d 203, 205.

"Family agreements looking to the advantageous settlement of estates or to the adjustment of family differences, disputes or controversies, when approved by the court, are valid and binding. They are bottomed on a sound public policy which seeks to preserve estates and to promote and encourage family accord. Spencer v. McCleneghan, 202 N.C. 662, 163 S.E. 753; In re Estate of Wright, 204 N.C. 465, 168 S.E. 664; Reynolds v. Reynolds, 208 N.C. 578, 182 S.E. 341; Bohannon v. Trotman, 214 N.C. 706, 200 S.E. 852; Schouler, Wills, Executors and Administrators, 6th Ed., § 3103." Redwine v. Clodfelter, supra; Fish v. Hanson, 223 N.C. 143, 25 S.E.2d 461; Bailey v. McLain, 215 N.C. 150, 1 S.E.2d 372, 120 A.L.R. 1487; In re Will of McLelland, 207 N.C. 375, 177 S.E. 19; Tise v. Hicks, 191 N.C. 609, 132 S.E. 560.

A will is not an instrument, however, to be amended or revoked at the instance of devisees who are merely dissatisfied with its provisions. Rice v. Wachovia Bank & Trust Co., 232 N.C. 222, 59 S.E.2d 803.

The rule that the law looks with favor upon family agreements does not prevail if the rights of infants are unfavorably affected. In re Reynolds, 206 N.C. 276, 173 S.E. 789. Ordinarily, the rights and interest of infants are the guiding star in determining the reasonableness and validity of such instruments. Redwine v. Clodfelter, supra. However, as stated in Tise v. Hicks, supra [191 N.C. 609, 132 S.E. 562], "Family settlements, * * * when fairly made, * * * are favorites of the law. * * * They proceed from a desire on the part of all who participate in them to adjust property rights, not upon strict legal principles, however just, but upon such terms as will prevent possible family dissensions, and will tend to strengthen the ties of family affection. The law ought to, and does, respect such settlements; it does not require that they shall be made in accord with strict rules of law; nor will they be set aside because of objections based upon mere technicalities."

It is not practical, in the instant case, to set out all the findings of fact found by the court below. These findings, conclusions of law, and the judgment of the court, cover 39 pages of the record. However, upon a careful review of the record, it is evident that it is extremely doubtful that Love Honbaier possessed sufficient mental capacity to make a will on 23 November 1953.

The amount of the trust fund set up for the grandchildren would seem to be rather small; even so, all thirteen of them, except two who are minors, have signed the agreement. There can be no doubt about the legal right of the seven living children of Love Honbaier, and his eleven grandchildren who are sui juris, to bind themselves by the proposed family settlement. Hunter v. American Trust Co., 232 N.C. 69, 59 S.E.2d 213. Furthermore, in light of the doubtfulness of the last will and testament of Love Honbaier to withstand a caveat, it would seem to be for the best interest of the minors in esse, as well as for those in posse, who are represented by guardians ad litem in this action, to approve the proposed family settlement agreement.

In the case of Bailey v. Wilson, 21 N.C. 182, Gaston, J., in speaking for the Court, said: "It is objected that the agreement of compromise was wholly voluntary, and that a court of Equity will not enforce its specific execution. Where there is a fair doubt as to the rights of parties, an agreement entered into without fraud, for the compromise of those rights, is not a voluntary agreement, and is a fit subject for the jurisdiction of a court of Equity. * * * Such arrangements are upheld by considerations, affecting the interests of all the parties, often far more weighty than any considerations simply pecuniary."

The judgment of the court below is in all respects

Affirmed.