Lenoir Rhyne College v. Thorne , 13 N.C. App. 27 ( 1971 )

PARKER, Judge.

The sole exception in the record is to the entry of the judgment. “This exception presents the single question whether the facts found by the court are sufficient to support the judgment, or, stated differently, whether the court correctly applied the law to the facts found.” Redwine v. Clodfelter, 226 N.C. 366, 38 S.E. 2d 203.

The courts have generally looked with favor upon family settlement agreements whereby a will contest is avoided or the settlement and distribution of an estate is promoted. Annotation, 29 A.L.R. 3d 8. Such agreements are said to be “bottomed on a sound public policy which seeks to preserve estates and to promote and encourage family accord,” Fish v. Hanson, 223 N.C. 143, 25 S.E. 2d 461, and “when fairly made, and when they do not prejudice the rights of creditors, are favorites of the law.” Tise v. Hicks, 191 N.C. 609, 132 S.E. 560. “But such agreements will not be approved if the rights of infants are prejudiced thereby. Neither will the terms of a testamentary trust be modified merely because the beneficiaries thereof dislike its provisions. The modification of the terms of such a trust will be approved only when such modification is deemed necessary in order to preserve the trust.” Rice v. Trust Co., 232 N.C. 222, 59 S.E. 2d 803.

In O’Neil v. O’Neil, 271 N.C. 106, 155 S.E. 2d 495, a case involving both rights of infants and modification of the dis-positive provisions of a testamentary trust, Bobbitt, J. (now C.J.), speaking for our Supreme Court, said:

“The provisions of a will or testamentary trust may be modified by a family settlement agreement only where there exists some exigency or emergency not contemplated by the testator. . . .

The mere fact that a caveat has been filed, standing alone, is not sufficient ground for modification of the dispositive provisions of the will. The outcome of the litigation must be in doubt to such extent that it is advisable for persons affected to accept the proposed modifications rather than run the risk of the more serious consequences that would result from an adverse verdict.”

Tested by the foregoing principles, the trial court was clearly correct in approving the settlement agreement with which we are here concerned. A bona fide controversy existed as to whether the holographic document being offered for probate was a valid codicil to the will of the testatrix. Counsel equally learned in the law could well differ as to whether it was found among the “valuable papers1 and effects” of the testatrix or under such other circumstances as to make it a valid holographic will under G.S. 31-3.4. On its face the possibility is suggested that its execution may have been procured by misrepresentation or undue influence, and the outcome of a jury verdict on the issue of devisavit vel non would have clearly been in doubt. The only thing which could have been certain to result from continued efforts to probate in the face of a caveat would have been substantial expense to the estate, protracted delay in its settlement, and complete disruption of family harmony. Under these circumstances all parties were well and prudently advised by their counsel to seek an agreement. The agreement finally arrived at by arms-length negotiations was fair to all concerned. Rights of creditors and of beneficiaries of the estate not parties to the agreement were in nowise affected. The best interests of the minor beneficiary were well served. By the settlement agreement she gave up the right to receive the principal of the $10,000.00 bequest, but she retained the income therefrom until she becomes twenty-one years of age or until her earlier death. Otherwise her ultimate share in the estate was reduced only by $1,525.32 (being one-third of the sum of $4,575.95 paid from the residuary estate to Myrtice C. Lochmann under the agreement.) Had these relatively minor concessions not been made and no settlement agreement been reached, the entire and very substantial interests of the infant in the estate would have been jeopardized. All parties to the settlement agreement other than the infant were mi juris, and they were, as was the infant and her guardian, well represented by competent counsel. In arriving at the agreement all parties and their counsel are to be commended.

The judgment approving the agreement is

Affirmed.

Judges Britt and Morris concur.