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      "BON C. HINSON, JR. v. HARRY LEE HINSON and wife, CAROL HINSON"
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        "text": "WHICHARD, Judge.\nI.\nThe sole question is whether the court erred in granting defendants\u2019 motion for summary judgment. Defendants are entitled to summary judgment pursuant to N.C. Gen. Stat. 1A-1, Rule 56 if the record shows \u201cthat there is no genuine issue as to any material fact and that [defendants are] entitled to a judgment as a matter of law.\u201d In ruling on a motion for summary judgment the evidence is viewed in the light most favorable to the non-moving party. Valdese General Hosp., Inc. v. Burns, 79 N.C. App. 163, 164, 339 S.E. 2d 23, 25 (1986).\nWe hold that the evidence, viewed in the light most favorable to plaintiff, raises genuine issues of material fact. Accordingly, we reverse.\nII.\nThe forecast of evidence, viewed in the light most favorable to plaintiff, Burns, supra, tends to establish the following:\nIn 1973 defendant-husband began to \u201cmanage\u201d the Greenway Avenue property for plaintiff. According to plaintiffs affidavit, \u201c[h]e was to collect the rents, pay the mortgage payments and generally keep the property up.\u201d\nPlaintiffs business failed, and as of 31 January 1974 judgments totalling $64,973.30 had been entered against him personally. In addition to his financial problems plaintiff was physically ill. He and his wife, then residents of Mecklenburg County, decided to move to Greenville, South Carolina.\nThe Greenway Avenue property was in disrepair. Defendant-husband, apparently concerned about preserving his interest in the property and the money he would have to advance to maintain the property, informed plaintiff that he could not continue to manage the property unless plaintiff renounced the interest he had received under'- his mother\u2019s will. While plaintiff was aware that the effect of the renunciation, if valid, would be to defeat any rights his creditors had to the property, he thought he had sufficient assets to satisfy his debts. Plaintiff, concerned about finding someone else to manage the property and wanting to move, agreed to sign the \u201cPetition to Renounce.\u201d\nPrior to signing the renunciation, however, plaintiff and defendant-husband orally agreed that defendant-husband would hold the property in trust for plaintiff and in ten years, when the judgments expired \u201cor whatever happened,\u201d they would have an accounting and defendant-husband would get half the property. Plaintiff signed the \u201cPetition to Renounce\u201d and an \u201cOrder of Renunciation\u201d was obtained. It is not clear from the record whether the judgments against plaintiff ultimately were paid, were renewed, or have expired.\nShortly before 24 October 1975, defendant-husband informed plaintiff that he needed to obtain a loan using the property as collateral in order to finance needed repairs on the roof. Relying on defendant-husband\u2019s representations, plaintiff signed a quitclaim deed to defendant-husband, not for the purpose of vesting ownership in him, but to make it possible for defendant-husband to obtain a loan. Plaintiff subsequently discovered that prior to defendant-husband\u2019s request for a quitclaim deed a new roof had already been put on the property.\nIII.\nRenunciation\nPlaintiff sought and obtained an order allowing him to renounce all interest in the property bequeathed to him under his mother\u2019s will and instructing the executor of her estate \u201cto hold and administer said estate as if [plaintiff] had died immediately preceding [the testatrix].\u201d If the order is given effect, plaintiff would have no interest in the property and the transactions involving the quitclaim deed would be of no consequence.\nA beneficiary\u2019s right to renounce exists irrespective of statutory authority. Keesler v. Bank, 256 N.C. 12, 19, 122 S.E. 2d 807, 813 (1961). In 1974, when plaintiff renounced all interest under his mother\u2019s will, there was no statutory authority for the renunciation of testate interests. Subsequently, the General Assembly enacted Chapter 31B of the General Statutes. N.C. Gen. Stat. 31B-5, however, provides that Chapter 31B \u201cdoes not abridge the right of a person to waive, release, disclaim or renounce property or an interest therein under any other statute or as otherwise provided by law.\u201d See also Sedberry v. Johnson, 62 N.C. App. 425, 302 S.E. 2d 924 (1983).\nA beneficial bequest or devise gives rise to a presumption of acceptance by the beneficiary. Perkins v. Isley, 224 N.C. 793, 798, 32 S.E. 2d 588, 591 (1945). A devisee may disclaim or renounce a right under a will, but he or she must do so within a reasonable time. Id.\nN.C. Gen. Stat. 29-10 (1966) governs the renunciation of intestate interests prior to 1 October 1975. 1975 N.C. Sess. Laws, ch. 371, sec. 2 and sec. 6. N.C. Gen. Stat. 29-10 (1966) provides, in pertinent part:\n(a) An heir may renounce the succession to his share of the estate of an intestate, and such renunciation shall be retroactive to the date of the death of the intestate. The renunciation shall be by a signed and acknowledged writing, executed by the heir in person, or by his duly authorized attorney, guardian, or next friend when approved by the clerk of the superior court and the resident judge of the superior court, and shall be delivered to the clerk of the superior court of the county in which the administrator or collector qualifies.\n(b) Such renunciation must be filed within four months after the death of the intestate if letters of administration are not issued within that period, or if letters of administration are issued during that period, then within two months after the date of such issuance, or if litigation that affects the share of the heir in the estate is pending at the expiration of such period for filing the renunciation, then within such reasonable time as may be allowed by written order of the clerk of the superior court.\n(d) If no renunciation is made in the manner and within the time provided for in subsections (a) and (b) hereof, the heir shall be conclusively deemed to have waived his or her right to renounce. [Emphasis supplied.]\nPlaintiff initially argues that the renunciation should be set aside as to his testate interest, which was renounced in paragraphs one and two of the order, because it was not made within a reasonable time, and as to any intestate interest, which was renounced in paragraph three of the order, because it was not made within the time limitations set out in N.C. Gen. Stat. 29-10 (1966). The legality of plaintiffs renunciation was a matter before the Clerk, who, having exclusive original jurisdiction of the administration of testatrix\u2019s estate, In re Estate of Adamee, 291 N.C. 386, 398, 230 S.E. 2d 541, 549 (1976), allowed plaintiffs \u201cPetition to Renounce.\u201d See Jeffreys v. Snipes, 45 N.C. App. 76, 78, 262 S.E. 2d 290, 292, disc. rev. denied, 300 N.C. 197, 269 S.E. 2d 624 (1980). The judgment is regular and valid on its face. As a party to the original action, plaintiff may not now collaterally attack it. Jeffreys, 45 N.C. App. at 77-78, 262 S.E. 2d at 291 (1980); see also Lumber Co. v. West, 247 N.C. 699, 705, 102 S.E. 2d 248, 252 (1958). In essence plaintiff argues that the court erred as a matter of law. A party may only be relieved of a judgment entered upon a mistake of law \u201cby appeal or proceedings equivalent thereto taken in due time.\u201d Menzel v. Menzel and Williams v. Blade, 250 N.C. 649, 654, 110 S.E. 2d 333, 337 (1959); Lumber Co., 247 N.C. at 701, 102 S.E. 2d at 249. Thus, plaintiff is not entitled to relief from the order of renunciation on grounds of error of law.\nLiberally construed, plaintiffs complaint and the evidence forecast by plaintiff suggest two equitable theories upon which plaintiff could seek recovery of that portion of his renounced interest now held by defendants.\nFirst, plaintiff has alleged and forecast evidence of a parol trust which would alter the effect of the \u201cOrder of Renunciation.\u201d \u201cNorth Carolina is one of a minority of states that has never adopted the Seventh Section of the English Statute of Frauds which requires all trusts in land to be manifested in writing.\u201d Bryant v. Kelly, 279 N.C. 123, 129, 181 S.E. 2d 438, 441 (1971). Accordingly, a parol trust engrafted upon a deed or conveyance in the \u201c \u2018A to B to hold in trust for C\u2019 situation\u201d is always upheld, id. at 129, 181 S.E. 2d at 442, and a parol trust engrafted upon a deed or conveyance in the A to B to hold in trust for A situation is upheld when induced by fraud, mistake or undue influence. Willetts v. Willetts, 254 N.C. 136, 143, 118 S.E. 2d 548, 553 (1961); High v. Parks, 42 N.C. App. 707, 711, 257 S.E. 2d 661, 663-64, disc. rev. denied, 298 N.C. 806, 262 S.E. 2d 1 (1979). Analogizing the order to a deed, arguably plaintiff can engraft a parol trust upon any interest defendant-husband obtained by virtue of plaintiffs renunciation upon a showing of fraud, mistake or undue influence.\nWhile the order of renunciation is similar to a deed in that it may have effected a transfer of title to plaintiffs intended trustee, in all other respects it is different. Plaintiff sought and obtained an order allowing his renunciation. To recognize a re-nouncer\u2019s right to engraft a parol agreement upon an order of the court would severely undermine \u201cthe integrity of personal and property rights acquired on the faith of judicial proceedings, as well as the public interests involved in the finality and conclusiveness of judgments.\u201d See Shaver v. Shaver, 248 N.C. 113, 120, 102 S.E. 2d 791, 797 (1958).\nIn Taylor v. Addington, 222 N.C. 393, 23 S.E. 2d 318 (1942), the Court held that a parol trust could not be engrafted upon an intestate inheritance. The Court reasoned:\nIn considering the effect of the parol promise or agreement, we must not forget that the principal role in the creation of an express trust is taken by the owner with that intent; the parol promise is complementary and incidental to such action as is taken by the owner and in furtherance thereof. It is effectual only when made in connection with the transfer of title and, by necessary inference, to the party who makes the transfer. ... It presupposes that such party has control of the subject matter of the trust which he desires to create, and contributes it by conveyance of the land with that intent . . ., the grantee, at the same time, accepting the title as affected by his agreement. . . . Devolution of title in a case of intestacy is no more the voluntary act of the decedent owner than is his own dissolution. It is a thing that will happen if let alone; the resulting inheritance is a gift of the law and not the grant of the decedent. The inheritance law is certainly innocent of any purpose to create a trust in determining the succession, and it imposes no condition of acceptance other than inheritability. There is nothing, in the legal sense, upon which a parol trust may be engrafted. [Citations omitted. Emphasis supplied.]\nTaylor, 222 N.C. at 397, 23 S.E. 2d at 321. For similar reasons, a parol trust may not be engrafted upon a renounced interest. A renunciation is not a grant of legal title by the renouncer. It merely triggers a set of statutorily defined legal rights which ultimately determine ownership. See footnote 1, supra. In addition, a renunciation relates back to the death of the testator or intestate. Perkins, 224 N.C. at 798, 32 S.E. 2d at 591; N.C. Gen. Stat. 2940(a) (1966). The renouncer never actually holds legal title to the property. Thus, we reject plaintiffs contention that he may engraft a parol trust upon his renounced interest.\nThe second equitable remedy suggested by plaintiffs complaint and forecast of evidence is a constructive trust. A constructive trust is a broad remedy\nimposed by courts of equity to prevent the unjust enrichment of the holder of title to, or of an interest in, property which such holder acquired through fraud, breach of duty or some other circumstance making it inequitable for him to retain it against the claim of the beneficiary of the constructive trust.\nWilson v. Development Co., 276 N.C. 198, 211, 171 S.E. 2d 873, 882 (1970). Unlike a parol trust, which arises by agreement of the parties, a constructive trust arises by operation of the law irrespective of the parties\u2019 intent. Id.; Ferguson v. Ferguson, 55 N.C. App. 341, 344, 285 S.E. 2d 288, 291, disc. rev. denied, 306 N.C. 383, 294 S.E. 2d 207 (1982). Constructive trusts are imposed in a virtually unlimited variety of situations, Wilson, 276 N.C. at 211, 171 S.E. 2d at 882, and under certain circumstances a constructive trust may be imposed despite the fact that it tends to alter or invalidate a judgment. See Johnson v. Stevenson, 269 N.C. 200, 204-05, 152 S.E. 2d 214, 217-18 (1967). In such instances the fraud or wrongdoing upon which the injured party relies must be extrinsic or collateral to the judgment, operating \u201c \u2018not upon matters pertaining to the judgment itself but [relating] to the manner in which it is procured.\u2019 \u201d Id. at 205, 152 S.E. 2d at 218, quoting A. Freeman 3 Judgments, sec. 1233 (1925).\nPlaintiff asserts that defendant-husband unduly influenced his decision to sign the \u201cPetition to Renounce.\u201d Whether plaintiffs petition is the result of his freely-made decision to renounce or of defendant-husband\u2019s undue influence pertains to the manner in which the petition was obtained and is extrinsic to the \u201cOrder of Renunciation.\u201d Accordingly, plaintiff may maintain an action seeking the declaration of a constructive trust. Johnson, supra.\nIn Link v. Link, 278 N.C. 180, 179 S.E. 2d 697 (1971), the Court adopted the following statements regarding equitable relief from transactions based on undue influence:\n\u201cIn equity there is no rule defining inflexibly what kind or what amount of compulson shall be sufficient ground for avoiding a transaction. * * * The question to be decided in each case is whether the party was a free and voluntary agent. Any influence brought to bear upon a person entering into an agreement or consenting to a disposal of property, which, having regard to the age, capacity of the party, the nature of the transaction, and all the circumstances of the case, appears to have been such as to preclude the exercise of free and deliberate judgment, is considered by courts of equity to be undue influence, and is a ground for setting aside the act procured by its employment.\u201d Pollock on Contracts, 524.\n\u201cWhere there is no coercion amounting to duress; but a transaction is the result of a moral, social or domestic force exerted upon a party, controlling the free action of his will and preventing any true consent, equity may relieve against the transaction on the ground of undue influence, even though there may be no invalidity at law. In the vast majority of instances, undue influence naturally has a field to work upon in the conditions or circumstances of the person influenced, which renders him peculiarly susceptible and yielding; his dependent or fiduciary relation towards the one exerting the influence,, his mental or physical weakness, his pecuniary necessities, his ignorance, lack of advice, and the like.\u201d Pomeroy, Equity Jurisprudence, 951.\nLink, 278 N.C. at 195-96, 179 S.E. 2d at. 706, quoting Edwards v. Bowden, 107 N.C. 58, 62-63, 12, S.E. 58, 59 (1890). Thus, whether a party has been unduly influenced is a flexible inquiry based on the facts of each case. Factors relevant to that determination are: (1) the age, health and capacity of the person allegedly unduly influenced, (2) the nature of the transaction, and (3) the nature of the relation between those involved in the transaction.\nPlaintiffs forecast of evidence, viewed in the light most favorable to him, creates a genuine issue as to whether defendant-husband unduly influenced his decision to sign the renunciation.\nAccording to plaintiff, when he signed the renunciation he was physically ill; he was \u201creally suffering with diabetes.\u201d His business had recently gone bankrupt. He and his wife had planned to move from Charlotte, North Carolina, where the property in question is located, to Greenville, South Carolina, and as a result he needed someone to attend to the rental property in his absence.\nPlaintiff and defendant-husband are brothers and plaintiff \u201ctrusted him implicitly.\u201d When defendant-husband moved to Charlotte in 1972 he and his wife lived with plaintiff and his wife for several months. Toward the end of 1972 or the beginning of 1973 plaintiff turned the management of the Greenway Avenue property over to defendant-husband, at which time defendant-husband began collecting the rents, paying the mortgage and seeing that the property was maintained.\nThe \u201cPetition to Renounce\u201d which plaintiff signed was drafted by defendant-husband\u2019s lawyers. They were present when plaintiff signed the petition, and they informed him that defendant-husband could not continue to manage the property unless he signed. Defendant-husband\u2019s lawyers filed the petition and obtained the \u201cOrder of Renunciation.\u201d Plaintiff was not represented by counsel.\nIn addition, while plaintiff does not allege actual fraud, he does allege that a confidential relationship existed between him and his brother and that by virtue of defendant-husband\u2019s agreement to manage the Greenway Avenue property for plaintiff, a fiduciary relationship also existed. When a confidential or fiduciary relationship exists, upon the complaint of the party to whom a duty of loyalty is owed a presumption of fraud arises and it becomes incumbent upon the party owing loyalty to demonstrate good faith and fair dealing in the transaction. Curl v. Key, 311 N.C. 259, 263-64, 316 S.E. 2d 272, 275; Link, 278 N.C. at 192, 179 S.E. 2d at 704; McNeill v. McNeill, 223 N.C. 178, 181, 25 S.E. 2d 615, 616-17 (1943); Stilwell v. Walden, 70 N.C. App. 543, 546, 320 S.E. 2d 329, 331 (1984); Rauchfuss v. Rauchfuss, 33 N.C. App. 108, 114, 234 S.E. 2d 423, 427 (1977). \u201cAny transaction between persons so situated is \u2018watched with extreme jealousy and solicitude; and if there is found the slightest trace of undue influence or unfair advantage, redress will be given to the injured party.\u2019 \u201d Link, 278 N.C. at 192, 179 S.E. 2d at 704, quoting Rhodes v. Jones, 232 N.C. 547, 548, 61 S.E. 2d 725, 726.\n\u201cA confidential or fiduciary relation can exist under a variety of circumstances and is not limited to those persons who also stand in some recognized legal relationship to each other, such as attorney and client, principal and agent . . . [or] guardian and ward . . . .\u201d Stilwell, 70 N.C. App. at 546-47, 320 S.E. 2d at 331. A confidential relationship arises \u201cin all cases where there has been a special confidence reposed in one who in equity and good conscience is bound to act in good faith and with due regard to the interests of the one reposing confidence.\u201d Abbitt v. Gregory, 201 N.C. 577, 598, 160 S.E. 896, 906 (1931).\nIn Curl, 311 N.C. 259, 316 S.E. 2d 272, the trial court, sitting as finder of fact, had found that no confidential or fiduciary relationship existed between the parties. The Supreme Court reversed, finding that none of the evidence contradicted the conclusion that there was a fiduciary or confidential relationship. The Court described the relationship between the defendant, Jack Key, and plaintiffs, the Curl children, as follows:\nAt the time of these events, the Curl children were 16, 17, 18 and 21 years of age ....\nThe plaintiffs had been closely acquainted with Jack Key all of their lives. Known to them as \u201cUncle Jack,\u201d Key had been their father\u2019s best friend. They continued to regard him as \u201ca special friend of the family.\u201d Key offered to help plaintiffs with their problems in dealing with harassment from outsiders, claiming he could keep troublemakers away if each of the plaintiffs would sign a paper \u2014 \u201ca peace paper giving him the right to kick anybody off the land that come there causing any disturbance.\u201d . . .\nThe plaintiffs had confidence in Jack Key; he was their friend; they all trusted and believed that he wanted to help them live in peace in their home.\nJack Key himself testified that he had known the Curl family for years. Mr. Curl had taught him to lay brick and they worked together. After Mr. Curl died, Jack Key lived for some time in the house with Lottie Curl and the children. He was a friend of the family\u2019s.\nCurl, 311 N.C. at 261-63, 316 S.E. 2d at 274-75.\nBased on the foregoing, we find plaintiffs forecast of evidence, viewed in the light most favorable to him, sufficient to create a genuine issue as to whether a confidential or fiduciary relationship existed between plaintiff and defendant-husband.\nDefendants maintain that plaintiffs claim for a constructive trust is barred by the equitable maxim which requires that \u201che who comes into equity must come with clean hands.\u201d \u201cThe clean hands doctrine denies equitable relief ... to litigants who have acted in bad faith or whose conduct has been dishonest, deceitful, fraudulent, unfair or overreaching in regard to the transaction in controversy.\u201d Collins v. Davis, 68 N.C. App. 588, 592, 315 S.E. 2d 759, 762, aff\u2019d per curiam, 312 N.C. 324, 321 S.E. 2d 892 (1984). Thus, \u201c \u2018where both parties have united in a transaction to defraud another, or others, or the public, or the due administration of the law, or which is against public policy, or contra bonos mores, the courts will not enforce it in favor of either party.\u2019 \u201d Hood v. Hood, 46 N.C. App. 298, 300, 264 S.E. 2d 814, 816 (1980), quoting York v. Merritt, 77 N.C. 213, 215 (1877).\nDefendant correctly contends that if plaintiff signed the renunciation in an attempt to defraud his judgment creditors, his claim for equitable relief is barred by the clean hands doctrine. Turner v. Eford, 58 N.C. (1 Jones Equity) 106 (1859); Moffett v. Daniels, 80 N.C. App. 516, 342 S.E. 2d 925 (1986). See also, Penland v. Wells, 201 N.C. 173, 159 S.E. 423 (1931); Powell v. Ivey, 88 N.C. 256, 261 (1883); Hood v. Hood, 46 N.C. App. 298, 264 S.E. 2d 814 (1980). While much of the evidence supports such a conclusion, plaintiff maintains that when he signed the renunciation he believed he had assets which would satisfy the claims of his judgment creditors and that he signed the renunciation so that defendant-husband would continue to manage the property. Plaintiffs averments create a genuine issue of material fact to be determined at trial. High, 42 N.C. App. at 711, 257 S.E. 2d at 663.\nWhile plaintiff denies any attempt to defraud his creditors, he admits that at the time he petitioned the court declaring his desire to renounce all interest in the Greenway Avenue property he and defendant-husband had orally agreed that he should retain an equitable interest in the property. Plaintiffs false declarations to the court constitute unclean hands and, standing alone, would bar his equitable remedies. See Sherner v. Spear, 92 N.C. 148, 150-51 (1885); Presnell v. Presnell, 59 N.C. App. 314, 317, 296 S.E. 2d 519, 521 (1982). However, where a party seeking relief has acted \u201c \u2018under circumstances of oppression, imposition, hardship, undue influence or great inequality of condition, or age, so that his guilt may be far less in degree than that of his associate in the offense,\u2019 \u201d equitable relief is not foreclosed. Pinkston v. Brown, 56 N.C. (1 Jones Equity) 494, 496 (1857), quoting J. Story, 1 Equity Jurisprudence Sec. 300 (1846). We thus hold that \u2014 given plaintiff\u2019s ill health and financial difficulties, as well as the possibility of a confidential or fiduciary relationship between plaintiff and defendant-husband \u2014 there is a genuine issue of material fact as to whether defendant-husband\u2019s wrongdoing reduces plaintiffs culpability sufficiently that plaintiff is entitled to equitable relief.\nIV.\nQuitclaim Deed\nPlaintiff asserts that defendant-husband fraudulently obtained the quitclaim deed by maintaining that its only purpose was to allow him to obtain a loan to make repairs on the roof. A genuine issue as to whether a confidential or fiduciary relationship existed between plaintiff and defendant-husband is again raised by plaintiffs forecast of evidence. If such a relationship is found, defendant-husband carries the burden of demonstrating his good faith and fair dealing.\nIn addition, plaintiffs forecast of evidence, viewed in the light most favorable to him, creates a genuine issue as to whether defendant-husband procured the quitclaim deed by fraud. The essential elements of fraud are as follows:\n\u201c(1) That defendant made a representation relating to some material past or existing fact; (2) that the representation was false; (3) that when he made it, defendant knew that the representation was false, or made it recklessly, without any knowledge of its truth and as a positive assertion; (4) that defendant made the representation with intention that it should be acted upon by plaintiff; (5) that plaintiff reasonably relied upon the representation and acted upon it; and (6) that plaintiff thereby suffered injury.\u201d\nLamm v. Crumpler, 240 N.C. 35, 44, 81 S.E. 2d 138, 145 (1954), quoting Cofield v. Griffin, 238 N.C. 377, 379, 78 S.E. 2d 131, 133 (1953); Childers v. Hayes, 77 N.C. App. 792, 794, 336 S.E. 2d 146, 148 (1985).\nAccording to plaintiff, defendant-husband represented to him that a new roof was required in order to continue renting the property and that because of plaintiffs outstanding judgments and the questions surrounding the validity of plaintiffs renunciation, defendant-husband could not obtain financing, using the property as collateral, without the quitclaim deed. Plaintiff relied upon defendant-husband\u2019s representations and agreed to sign the deed. Defendant-husband\u2019s lawyers drafted the deed and sent it to plaintiff for his signature. Plaintiff was subsequently informed by the realtor who handled the property that at the time defendant-husband requested the deed the roof did not need replacing. Plaintiff has visited the property and, although the roof has not been replaced since defendant-husband\u2019s request for the deed, in plaintiffs opinion a new roof is not needed. The foregoing, if proven, is sufficient to establish a claim for fraud.\nV.\nIn sum, plaintiffs forecast of evidence, viewed in the light most favorable to him, raises the following genuine issues of material fact:\n(1) Did defendant-husband procure plaintiffs renunciation of the property through fraud or undue influence?\n(2) If so, is plaintiff entitled to equitable relief from the order of renunciation?\n(3) Did defendant-husband obtain plaintiffs quitclaim deed through fraud?\nIf plaintiff prevails on each of these issues, he is entitled to a declaration that defendants hold the Greenway Avenue property in trust for him. Thus, defendants\u2019 motion for summary judgment was improperly granted.\nUpon remand for trial allocation of the burden of proof on the first issue depends upon whether a confidential or fiduciary relationship existed between plaintiff and defendant-husband when plaintiff renounced his interest in the property. If the finder of fact determines that such a relationship existed, defendant-husband carries the burden of establishing his good faith and fair dealing. If not, plaintiff carries the burden of demonstrating defendant-husband\u2019s undue influence.\nIf the finder of fact answers the first issue in the affirmative, finding that defendant-husband procured plaintiffs renunciation through fraud or undue influence, it must then decide whether plaintiffs intent in renouncing the property was to defraud his creditors and whether, given his intent and his false declarations in the \u201cPetition to Renounce,\u201d he is entitled to equitable relief. In so deciding, it must consider whether, under the circumstances, defendant-husband\u2019s wrongdoing reduces plaintiffs culpability sufficiently that plaintiff is entitled to equitable relief.\nIf the finder of fact answers both the first and second issues in the affirmative, it must then determine whether defendant-husband procured the quitclaim deed through fraud. If at the time plaintiff signed the deed a fiduciary or confidential relationship existed between the parties, defendant-husband carries the burden of demonstrating his good faith and fair dealing regarding the procurement of the deed. Absent such a relationship, plaintiff carries the burden of demonstrating defendant-husband\u2019s fraud.\nReversed and remanded.\nJudges Becton and PARKER concur.\n. While it is clear that should the renunciation be given effect and the testatrix\u2019s estate be distributed as if plaintiff had predeceased her, plaintiff would have no interest in the property, it is not clear what interest, if any, defendant-husband obtains. N.C. Gen. Stat. 31B-3(b) and N.C. Gen. Stat. 31-42(a), effective 1 October 1975, provide that a renounced gift passes first by substitution to such issue of the renouncer as would have been an heir to the testator under the provisions of the Intestate Succession Act had the renouncer died before the testator. If no such heir exists, the gift lapses and passes under the residuary clause of the will. N.C. Gen. Stat. 31-42(c)(l)(a). If, as here, there is no residuary clause, the gift passes as if the testator had died intestate. N.C. Gen. Stat. 31-42(c)(l)(b). Arguably, the law applicable to plaintiffs renunciation, N.C. Gen. Stat. 31-42 (1966), and the express mandate of the order requiring testatrix\u2019s estate to be distributed as if plaintiff had predeceased her, dictate the same results.\nAs plaintiff may have heirs qualified to take under N.C. Gen. Stat. 31-42 (1966), our decision regarding the effect of the renunciation, if valid, is limited to plaintiff, and any resolution reached in this action determines only the relative rights of plaintiff and defendants.\n. The relation back of a renunciation is more than a legal fiction. As long as the renouncer receives no fraudulent benefit, his motives for renouncing are immaterial and a valid renunciation will defeat the interests of his judgment creditors. Annot., 27 A.L.R. 472, 477; 80 Am. Jur. 2d Wills Sec. 1598 (1975). See also Perkins, 224 N.C. at 798, 32 S.E. 2d at 591; Reese v. Carson, 3 N.C. App. 99, 103, 164 S.E. 2d 99, 101 (1968).",
        "type": "majority",
        "author": "WHICHARD, Judge."
      }
    ],
    "attorneys": [
      "Ray Rankin for plaintiff appellant.",
      "William G. Robinson for defendant appellees."
    ],
    "corrections": "",
    "head_matter": "BON C. HINSON, JR. v. HARRY LEE HINSON and wife, CAROL HINSON\nNo. 8526SC918\n(Filed 20 May 1986)\n1. Wills \u00a7 60\u2014 renunciation \u2014 reasonable time\nA devisee may disclaim or renounce a right under a will, but he or she must do so within a reasonable time.\n2. Wills \u00a7 60\u2014 renunciation \u2014 motion to set aside for lack of timeliness\nPlaintiff could not successfully argue that his renunciation should be set aside as to his testate interest because it was not made within a reasonable time and as to any intestate interest because it was not made within the time limitations set out in N.C.G.S. \u00a7 29-10 (1966), since the clerk, who had exclusive original jurisdiction of the administration of testatrix\u2019s estate, allowed plaintiffs petition to renounce; the judgment was regular and valid on its face; as a party to the original action, plaintiff could not subsequently collaterally attack it; and plaintiff could not prevail on his contention that the court erred as a matter of law where he failed to appeal in due time.\n3. Wills \u00a7 60; Trusts \u00a7 13.2\u2014 renunciation of testamentary interest \u2014 engrafting parol trust on renounced interest not permitted\nWhere plaintiff sought and obtained an order allowing him to renounce any interest under the will of his mother, he could not thereafter engraft a parol trust upon his renounced interest, since to recognize a renouncer\u2019s right to engraft a parol agreement upon an order of the court would severely undermine the integrity of personal and property rights acquired on the faith of judicial proceedings, and since a renunciation relates back to the death of the testator so that the renouncer never actually holds legal title to the property.\n4. Wills \u00a7 60; Trusts \u00a7 14.2\u2014 renunciation of testamentary interest \u2014 constructive trust \u2014 undue influence\nPlaintiff could maintain an action seeking the declaration of a constructive trust on his interest under his mother\u2019s will which he had renounced, and his forecast of evidence created a genuine issue as to whether defendant unduly influenced his decision to sign the renunciation where such evidence tended to show that, at the time he signed the renunciation, plaintiff was physically ill, suffering from diabetes; his business had recently gone bankrupt; he and his wife had planned to move from Charlotte where the property in question was located, to Greenville, S. C. and as a result he needed someone to attend to the rental property in his absence; plaintiff and defendant were brothers and plaintiff \u201ctrusted him implicitly\u201d; plaintiff turned the management of the property over to defendant and defendant began to collect rents, pay the mortgage and see that the property was maintained; the petition to renounce which plaintiff signed was drafted by defendant\u2019s lawyers who were present when plaintiff signed it; the lawyers informed plaintiff that defendant could not continue to manage the property unless he signed; defendant\u2019s lawyers filed the petition and obtained the \u201cOrder of Renunciation\u201d; and plaintiff was not represented by counsel.\n5. Trusts \u00a7 14.2\u2014 constructive trust \u2014 confidential or fiduciary relationship \u2014 sufficiency of evidence\nEvidence was sufficient to create a genuine issue as to whether a confidential or fiduciary relationship existed between plaintiff and defendant where such evidence tended to show that they were brothers who inherited rental property from their mother, and defendant agreed to manage the property for plaintiff.\n6. Wills 8 60; Equity 8 1.1\u2014 renunciation of testamentary interest \u2014 attempt to defraud creditors \u2014 clean hands\nA genuine issue of fact existed as to whether plaintiff renounced his interest under his mother\u2019s will in an attempt to defraud his judgment creditors, and therefore whether his claim for equitable relief was barred by the clean hands doctrine; furthermore, plaintiffs false declarations to the court at the time he renounced constituted unclean hands which would bar his equitable remedies, unless he acted under undue influence so that his guilt was less than that of defendant, and a genuine issue of fact existed as to whether defendant\u2019s wrongdoing sufficiently reduced plaintiffs culpability to the point that plaintiff was entitled to equitable relief.\n7. Fraud 8 12; Cancellation and Rescission of Instruments 8 10.1\u2014 quitclaim deed obtained by fraud \u2014 sufficiency of evidence\nA genuine issue of fact existed as to whether defendant obtained through fraud a quitclaim deed to plaintiffs interest in property left to the parties by their mother where plaintiffs evidence tended to show that defendant represented that a new roof was required in order to continue renting the property; because of plaintiffs outstanding judgments and the questions surrounding the validity of plaintiffs renunciation, defendant could not obtain financing, using the property as collateral, without the quitclaim deed; plaintiff relied upon defendant\u2019s representations and agreed to sign the deed; defendant\u2019s lawyers drafted the deed and sent it to plaintiff for his signature; and plaintiff subsequently learned that, at the time defendant requested the deed, the roof did not need replacing.\nAppeal by plaintiff from Burroughs, Judge. Order entered 1 July 1985 in Superior Court, MECKLENBURG County. Heard in the Court of Appeals 16 January 1986.\nOn 26 December 1970 Lula D. Hinson, mother of plaintiff and defendant-husband, died testate. On 24 May 1972 her holographic will was probated. The will devised \u201cthe land and real property of 2014 Greenway ... [to plaintiff].\u201d It further provided: \u201cHowever he shall share and share alike with his brother [defendant-husband] the rents from the upstairs Apts, in the big house, after taxes & insurance and [repairs] on roof.\u201d The will contained no residuary clause.\nOn 10 January 1974 plaintiff sought and obtained an Order of Renunciation. Tracking the language of plaintiffs \u201cPetition to Renounce,\u201d the order provides:\n1. That [plaintiff] be hereby authorized to renounce all his rights in and to the bequest under the Will of Lula D. Hinson; and\n2. That the provision of said Will directing distribution of property to [plaintiff] be of no effect; and\n3. That the Executor of the Estate ... be directed to hold and administer said estate as if [plaintiff] had died immediately preceding Lula D. Hinson.\nIn addition to the renunciation, plaintiff conveyed whatever right or interest he retained in the Greenway Avenue property to defendant-husband by a quitclaim deed dated 29 October 1975. The deed was recorded, and defendant-husband subsequently executed a deed transferring the property to himself and defendant-wife.\nPlaintiff filed this action seeking a declaration that defendants hold the Greenway Avenue property in trust for plaintiff and an order requiring defendants to reconvey the property. The trial court granted defendants\u2019 motion for summary judgment. Plaintiff appeals.\nRay Rankin for plaintiff appellant.\nWilliam G. Robinson for defendant appellees."
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  "file_name": "0561-01",
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