Mansour v. Rabil

177 S.E.2d 849 (1970) 277 N.C. 364

Virginia R. MANSOUR and B. D. Rabil, Jr., Plaintiffs,
v.
Sophie S. RABIL, Albert Rabil, Sr., George V. Safy, and Richard J. Rabil, Cynthia Ann Rabil and Robert Joseph Rabil, Minors, by their Guardian Ad Litem, M. Alexander Biggs, Lester Rabil, Thelma R. Lanhan, Pauline R. Kelly, Margaret R. Greenwood, and Alice S. Lewis, Defendants, and
Peoples Bank & Trust Company, Executor of the Will of Susie Rabil, Deceased, Intervenor.

No. 26.

Supreme Court of North Carolina.

December 16, 1970.

Braswell, Strickland, Merritt & Rouse by Roland C. Braswell, Goldsboro, Boyce, Mitchell, Burns & Smith by G. Eugene Boyce, Raleigh, Farris & Thomas by Allen G. Thomas, Wilson, for plaintiff appellants and plaintiff appellees.

Thorp & Etheridge by William L. Thorp, Jr., Rocky Mount, for Albert Rabil and Sophie Rabil, defendant appellants and defendant appellees.

Weeks, Muse & Brown by T. Chandler Muse, Tarboro, for George Victor Safy, defendant appellant and defendant appellee.

M. Alexander Biggs, Rocky Mount, guardian ad litem for Richard J. Rabil, Cynthia Ann Rabil and Robert Joseph Rabil, defendant appellants and defendant appellees.

Defendants Alice S. Lewis, Lester Rabil, Thelma R. Lanhan, Pauline R. Kelly, and Margaret R. Greenwood elected not to file Answer, made no appearance in this action, were not represented by counsel, and did not appeal.

S. L. Arrington, Rocky Mount, for Peoples Bank & Trust Co., executor of the will of Susie Rabil, intervenor.

MOORE, Justice.

The first question is: Was the will of B. D. Rabil and Susie Rabil executed pursuant to a valid, binding contract? There is no evidence of any contract between B. D. and Susie outside the will itself, and the contract, if any, must be determined from the language of the will.

The will of B. D. and Susie contains the following language:

"We, Betrus D. Rabil and Susie Rabil, his wife * * * do hereby make, publish and declare the following to be our joint Last Will and Testament, and we and each of us contract to and with each other that the following is our joint Will and Testament and in every respect binding on both of us." (Emphasis added.)

"This is contractual language. It is sufficient, in conjunction with the reciprocal devises and bequests, to show the existence of a contract between the husband and wife, pursuant to which the joint will was executed by them." Olive v. Biggs, 276 N.C. 445, 173 S.E.2d 301. The trial court, however, found that this will was not executed pursuant to and in accordance with a contract between the parties because of the failure of consideration. "A sufficient consideration for a contract between husband and wife to make wills containing reciprocal provisions and providing for the disposition to be made of their property on the death of the survivor may exist in the promises of the spouses to one another to execute such a will provided it appears that the consideration was mutual in the respect that each spouse promised in reliance upon the promise of the other." 57 Am.Jur. § 699 (1948). Or, as stated in Annot., 169 A.L.R. 9, 32: "The mutual promises of husband and wife may be a consideration to support their agreement to execute jointly a will containing reciprocal provisions." Accord, Godwin v. Wachovia Bank & Trust Co., 259 N.C. 520, 131 S.E.2d 456. In Godwin our Court quoted with approval from Lawrence v. Ashba, 115 Ind.App. 485, 59 N.E.2d 568, as follows: "It is apparent, however, that their minds did meet on a particular testamentary disposition of the property to accomplish a particular purpose, and that they intended the wills made pursuant thereto to remain unrevoked at their death. The mutual agreement of the makers of the will was sufficient consideration to bind the promisors."

The signatures of B. D. and Susie are under seals. "At common law a seal imports a good consideration for the instrument to which it is attached, and under the strict common law doctrine, a device constituting a technical seal is conclusive evidence of the existence of a consideration, and the absence thereof cannot be shown even by clear and indisputable evidence." 47 Am.Jur., Seals § 13 (1943); Thomason v. Bescher, 176 N.C. 622, 97 S.E. 654.

We hold there was sufficient consideration to support a contract between the parties to the will and that the trial court erred in its finding of fact No. 8, "that Exhibit `A' was not executed by Betrus D. Rabil and Susie Rabil pursuant to and in accordance with a contract between the parties based upon a valid consideration."

An indivisible contract to devise real and personal property comes within the purview of G.S. § 22-2, Statute of Frauds. Pickelsimer v. Pickelsimer, 257 N.C. 696, 127 S.E.2d 557; Humphrey v. Faison, 247 N.C. 127, 100 S.E.2d 524; Jamerson v. Logan, 228 N.C. 540, 46 S.E.2d 561. But a joint will may itself be a sufficient memorandum of such contract to satisfy the Statute of Frauds. Olive v. Biggs, supra; Godwin v. Wachovia Bank & Trust Co., supra. This being true, the requirement of the statute is met. There was a valid contract between B. D. and Susie based upon sufficient consideration unless the contract is void because it was not executed as required by G.S. § 52-6.

The trial court held that the provisions of G.S. § 52-6 did not apply since there was no contract between the parties for want of a proper consideration. This Court having overruled that finding, the applicability of G.S. § 52-6 becomes germane. The pertinent provisions of G.S. § 52-6 are as follows:

"(a) No contract between husband and wife made during their coverture shall be valid to affect or change any part of the real estate of the wife, or the accruing income thereof for a longer time than three years next ensuing the making of such contract, nor shall any separation agreement between husband and wife be valid for any purpose, unless such contract or separation agreement is in writing, and is acknowledged before a certifying officer who shall make a private examination of the wife according to the requirements formerly prevailing for conveyance of land.

"(b) The certifying officer examining the wife shall incorporate in his certificate a statement of his conclusions and findings of fact as to whether or not said contract is unreasonable or injurious to the wife. The certificate of the officer shall be conclusive of the facts therein stated but may be impeached for fraud as other judgments may be."

In Olive v. Biggs, supra, our Court stated:

"* * * A contract by which one binds himself to make a specified testamentary disposition of his real property is a contract affecting that property. Consequently, a contract between husband and wife prescribing the testamentary disposition of their properties is not binding upon the wife unless the procedure prescribed by G.S. § 52-6 is followed."

If G.S. § 52-6 is applicable, plaintiffs contend that G.S. § 52-8 and G.S. § 39-13.1(b) (curative statutes) would take this case out of the operation of G.S. § 52-6.

G.S. § 52-8 provides:

"Any contract between husband and wife coming within the provisions of G.S. 52-6 executed between January 1, 1930, and June 20, 1963, which does not comply with the requirement of a private examination of the wife and which is in all other respects regular is hereby validated and confirmed to the same extent as if the examination of the wife had been separate and apart from the husband. This section shall not affect pending litigation." (Emphasis added.)

G.S. § 39-13.1(b) provides:

"(b) Any deed, contract, conveyance, lease or other instrument executed prior to February 7, 1945, which is in all other respects regular except for the failure to take the private examination of a married woman who is a party to such deed, contract, conveyance, lease or other instrument is hereby validated and confirmed to the same extent as if such private examination had been taken, provided that this section shall not apply to any instruments now involved in any pending litigation." (Emphasis added.)

G.S. § 52-8 was amended in 1967 substituting "January 1, 1930" for "October 1, 1954," and G.S. § 39-13.1 (b) was passed in 1969. The will in question was executed October 3, 1939, and the rights of the parties vested in 1964 upon the death of B. D. Rabil. Both G.S. § 52-8 and G.S. § 39-13.1 (b) were enacted by the Legislature subsequent to 1964. A void contract cannot be validated by a subsequent act, and the Legislature has no power to pass acts affecting vested rights. Booth v. Hairston, 193 N.C. 278, 136 S.E. 879; Foster v. Williams, 182 N.C. 632, 109 S.E. 834; 7 Strong's N.C. Index 2d, Statutes § 8; 7 Strong's N.C. Index 2d, Curative Statutes § 9. It is also noted that each of the curative statutes provides that an instrument which is in all other respects regular except for the failure to take the private examination of a married woman who is a party to such instrument is validated to the same extent as if such private examination had been taken. In this case, not only was the private examination of Susie not taken but there was no finding by the certifying officer of his conclusions and findings of fact as to whether or not said contract was unreasonable or injurious to the wife as required by G.S. § 52-6(b) and no acknowledgment was taken before an officer as required by G.S. § 52-6(c).

We hold that under the provisions of G.S. § 52-6 the contract to make a will was void as to Susie and that this was not affected by the curative statutes, G.S. § 52-8 and G.S. § 39-13.1 (b).

In the absence of a valid contract to the contrary, either signer of a joint will may revoke it in any manner permitted by statute during the life of all the persons signing as testators, but upon the death of one of the persons so signing without a valid revocation by that person, the will may be probated and given effect as his or her will. Thus, upon the death of B. D., the will in question was properly probated as his will. Olive v. Biggs, supra; In re Will of Watson, 213 N.C. 309, 195 S.E. 772; In re Davis' Will, 120 N.C. 9, 26 S.E. 636. Had Susie done nothing to revoke the joint will, at her death it could have been probated as her will. However, since Susie revoked the joint will by the execution of a subsequent will (G.S. § 31-5.1(1)), the joint will cannot be probated as the will of Susie, and the subsequent will of Susie, if in all other respects valid, could properly be probated as her last will and testament.

Plaintiffs further contend that since Suzie enjoyed the benefits of the contract and ratified it by going into possession of the property under the will of B. D. that her heirs should be estopped from contending that the contract is void even if it was not executed in accordance with G. S. § 52-6. The general rule is that one who accepts benefits under a will is estopped to contest it or attack its validity. Poplin v. Hatley, 170 N.C. 163, 86 S.E. 1028; Annot., 28 A.L.R.2d 121, 144. Where a party would be estopped persons in privity with such party, including heirs and devisees, are estopped. Hayes v. Ricard, 244 N.C. 313, 93 S.E.2d 540; 3 Strong's N.C. Index 2d, Estoppel § 5. However, a void contract will not work as an estoppel. Bolin v. Bolin, 246 N.C. 666, 99 S.E.2d 920; Daughtry v. Daughtry, 225 N.C. 358, 34 S.E.2d 435; Fisher v. Fisher, 218 N.C. 42, 9 S.E.2d 493. Therefore neither Susie nor her heirs were estopped by the contract. Nor were they estopped by B. D.'s will. At B. D.'s death Susie did only what his will authorized her to do; that is, to take possession of all the real and personal property belonging to B. D. with the right to use it and eyen dispose of it if she desired during her lifetime. She was not put to any election under contradictory terms in the will, or forced to make a choice between inconsistent benefits. She was not then estopped under the will from disposing of the property belonging to her as she saw fit. For as this Court stated in Burch v. Sutton, 266 N.C. 333, 335, 145 S.E.2d 849:

"The doctrine of equitable election is in derogation of the property right of the true owner. Hence, the intention to put a beneficiary to an election must appear plainly from the terms of the will. Lamb v. Lamb, 226 N.C. 662, 40 S.E.2d 29; [Commercial Nat.] Bank [of Charlotte] v. Misenheimer, 211 N.C. 519, 191 S.E. 14; Rich v. Morisey, 149 N.C. 37, 62 S.E. 762; Walston v. [Atlantic Christian] College, [Inc.,], 258 N.C. 130, 128 S.E.2d 134. `An election is required only when the will confronts a beneficiary with a choice between two benefits which are inconsistent with each other.' Honeycutt v. [Citizens Nat.] Bank, [in Gastonia], 242 N.C. 734, 89 S.E.2d 598. An election is required only if the will discloses it was the testator's manifest purpose to put the beneficiary to an election. [North Carolina Nat.] Bank v. Barbee, 260 N.C. 106, 110, 131 S.E.2d 666."

Under the stipulations entered into by the parties, the only remaining matter for the consideration and determination by the court is the construction of the B. D. Rabil will. In Olive v. Biggs, supra, the Court said:

"* * * [T]he cardinal principle in the construction of a will is to give effect to the intent of the testator as it appears from the language used in the instrument itself, insofar as that can be done within the limits of rules of law fixed by statute or by the decisions of this Court. Raines v. Osborne, 184 N.C. 599, 114 S.E. 849. The intent of the testator is to be determined from the entire instrument so as to harmonize, if possible, provisions which would otherwise be inconsistent. Clark v. Connor, 253 N.C. 515, 117 S.E. 2d 465; Andrews v. Andrews, 253 N.C. 139, 116 S.E.2d 436; Gatling v. Gatling, 239 N.C. 215, 79 S.E.2d 466."

As Justice Bobbitt (now Chief Justice) said in Wachovia Bank & Trust Co. v. Wolfe, 245 N.C. 535, 96 S.E.2d 690:

"When undertaking to reconcile apparently conflicting provisions `greater regard must be given to the dominant purpose of a testator than to the use of any particular words.' [Wachovia Bank &] Trust Co. v. Waddell, 234 N.C. 454, 461, 67 S.E.2d 651, 657. If it may reasonably be done, apparently inconsistent subordinate provisions must be given effect in accordance with the general prevailing purpose of the testator, Schaeffer v. Haseltine, supra [228 N.C. 484, 489, 46 S.E.2d 463]; Coppedge v. Coppedge, supra [234 N.C. 173, 176, 66 S.E.2d 777]."

The will in paragraph 3 provides: "We devise and bequeath unto our beloved children, Virginia and B. D. Rabil, Jr., subject always to our life estate therein and further subject to the limitations and conditions, hereinafter set out, all of the real and personal property of every nature and kind and wheresoever situated that we, or either of us, now own or may hereafter own prior to the death of the survivor," and in paragraph 5 provides that "* * * in the event of the death of Betrus D. Rabil prior to the death of Susie Rabil, that Susie Rabil in her life time, if she thinks best to do so, is hereby authorized and fully empowered to sell, rent out, convey by deed, mortgage, or deed in trust, all or any part of the real estate owned by us or either of us to make deed in fee simple for property so sold or make conveyance in fee of all or any part of said property now owned or hereafter owned by us, or either of us, whether real or personal in just as full and ample a manner as if she, the said Susie Rabil was the absolute owner in fee simple thereof." (Emphasis added.) Considering these provisions and the will in its entirety, we think it apparent that the intent of B. D. was that his wife would not acquire title in fee to his property, but if she survived him his property was to pass to her for life with the right to dispose of it, if she so desired, during her lifetime. In the real estate owned by B. D. she acquired a life estate with the right to dispose of it during her lifetime. The same was true of any personal property owned by B. D. Land owned by B. D. and wife, Susie, by the entirety, passed to Susie upon the death of her husband by right of purchase under the original grant or devise and by virtue of survivorship and not otherwise. In this property B. D. had no estate which was descendible or devisable. Isaacs v. Clayton, Commissioner of Revenue, 270 N.C. 424, 154 S.E.2d 532; Honeycutt v. Citizens National Bank in Gastonia, 242 N.C. 734, 89 S.E.2d 598; Davis v. Bass, 188 N.C. 200, 124 S.E. 566. Consequently, we hold that the real and personal property owned by B. D. Rabil and not disposed of by Susie during her lifetime passed under his will to Virginia Rabil and B. D. Rabil, Jr., as tenants in common, absolutely and in fee simple; that the real property owned by B. D. Rabil and Susie Rabil as tenants by the entirety passed to Susie Rabil by operation of law; and that consequently any real property owned by B. D. Rabil and Susie Rabil by the entirety and any personal property owned by her individually and any personal property jointly owned by B. D. Rabil and Susie Rabil with right of survivorship by contract was subject to be devised and bequeathed by her subsequent will. The attempt by her to devise and bequeath real estate and personal property remaining in the estate of B. D. at her death was void as she only had a life estate therein, and at her death this passed to Virginia and B. D. Rabil, Jr., under the will of B. D. Rabil.

The judgment of the trial court is modified in accordance with this opinion.

Modified and affirmed.