In Re the Will of Peacock

197 S.E.2d 254 (1973) 18 N.C. App. 554

In the Matter of the WILL of Sallie K. PEACOCK, Deceased.

No. 7311SC292.

Court of Appeals of North Carolina.

June 27, 1973.

L. Austin Stevens and Wiley Narron, Smithfield, for caveator appellant.

Albert A. Corbett, Jr., Smithfield, and P. D. Grady, Jr., Kenly, for propounder appellees.

PARKER, Judge.

Under certain circumstances, one who accepts and retains benefits under a will may thereby become estopped to attack its validity. Annot: Will Contest-Estoppel, 28 A.L.R. 2d 116. Such is not the present case. One cannot be estopped by accepting that which he would be legally entitled to receive in any event. 28 Am. Jur. 2d, Estoppel and Waiver, § 60, p. 680. Should the will be set aside in the present case, appellant will be entitled to a full one-third of his mother's estate. His acceptance of a check for less than that amount could in no way prejudice his sisters in event probate of the will is subsequently set aside. Nothing in the circumstances indicates any reason why it would by inequitable for appellant to proceed with his caveat. Should he succeed, he will ultimately receive no more than the law will allot him; should he fail, he will receive no more than the trustees in proper performance of their duties under his mother's will may distribute to him. His caveat having been timely filed under G.S. § 31-32 and no sufficient grounds for estoppel being shown, the summary judgment dismissing this proceeding is

Reversed.

BROCK and MORRIS, JJ., concur.