{ "id": 8569776, "name": "IN RE: THE ESTATE OF KIRBY W. LOFTIN, deceased (72E146) and SYBIL LEWIS LOFTIN, Petitioner-Appellant (73SP35) v. KIRBY C. LOFTIN, Executor of the Estate of KIRBY W. LOFTIN, Respondent-Appellee", "name_abbreviation": "Estate of Loftin v. Loftin", "decision_date": "1974-10-10", "docket_number": "No. 36", "first_page": "717", "last_page": "724", "citations": [ { "type": "official", "cite": "285 N.C. 717" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "205 S.E. 2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": -1 }, { "cite": "21 N.C. App. 627", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8557162 ], "opinion_index": -1, "case_paths": [ "/nc-app/21/0627-01" ] }, { "cite": "144 S.E. 2d 603", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "265 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575948 ], "opinion_index": 0, "case_paths": [ "/nc/265/0506-01" ] }, { "cite": "113 S.E. 2d 587", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "252 N.C. 269", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621119 ], "opinion_index": 0, "case_paths": [ "/nc/252/0269-01" ] }, { "cite": "179 S.E. 2d 697", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "278 N.C. 181", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559944 ], "opinion_index": 0, "case_paths": [ "/nc/278/0181-01" ] }, { "cite": "9 S.E. 2d 413", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "217 N.C. 649", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615049 ], "opinion_index": 0, "case_paths": [ "/nc/217/0649-01" ] }, { "cite": "49 S.E. 2d 634", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "229 N.C. 330", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12165865 ], "opinion_index": 0, "case_paths": [ "/nc/229/0330-01" ] }, { "cite": "117 S.E. 2d 265", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "253 N.C. 444", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625848 ], "opinion_index": 0, "case_paths": [ "/nc/253/0444-01" ] }, { "cite": "124 S.E. 2d 130", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "256 N.C. 468", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573395 ], "opinion_index": 0, "case_paths": [ "/nc/256/0468-01" ] }, { "cite": "127 S.E. 337", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "189 N.C. 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654257 ], "opinion_index": 0, "case_paths": [ "/nc/189/0356-01" ] }, { "cite": "52 S.E. 2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "230 N.C. 190", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629093 ], "opinion_index": 0, "case_paths": [ "/nc/230/0190-01" ] }, { "cite": "159 S.E. 2d 562", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "273 N.C. 189", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574914 ], "opinion_index": 0, "case_paths": [ "/nc/273/0189-01" ] }, { "cite": "89 S.E. 2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "242 N.C. 533", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618335 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/242/0533-01" ] }, { "cite": "32 S.E. 958", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "124 N.C. 547", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660288 ], "opinion_index": 0, "case_paths": [ "/nc/124/0547-01" ] }, { "cite": "45 S.E. 465", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "133 N.C. 86", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656311 ], "opinion_index": 0, "case_paths": [ "/nc/133/0086-01" ] }, { "cite": "23 S.E. 2d 306", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "222 N.C. 387", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630493 ], "opinion_index": 0, "case_paths": [ "/nc/222/0387-01" ] } ], "analysis": { "cardinality": 694, "char_count": 16304, "ocr_confidence": 0.596, "pagerank": { "raw": 3.4022331571594827e-07, "percentile": 0.8775245197692992 }, "sha256": "a97bac565f65e8a7bbac86401974e3bdc426b15a608da91e4f8454ada6c877f4", "simhash": "1:89e924da881caa69", "word_count": 2733 }, "last_updated": "2023-07-14T22:42:08.335271+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Justice Bobbitt not sitting." ], "parties": [ "IN RE: THE ESTATE OF KIRBY W. LOFTIN, deceased (72E146) and SYBIL LEWIS LOFTIN, Petitioner-Appellant (73SP35) v. KIRBY C. LOFTIN, Executor of the Estate of KIRBY W. LOFTIN, Respondent-Appellee" ], "opinions": [ { "text": "BRANCH, Justice.\nWe first consider whether contracts with respect to her property and property rights constituted a bar to plaintiff\u2019s dissent and application for a year\u2019s allowance.\nIt is well settled in this jurisdiction that a man and woman contemplating marriage may enter into a valid contract with respect to the property and property rights of each after the marriage, and such contracts will be enforced as written. Stewart v. Stewart, 222 N.C. 387, 23 S.E. 2d 306; Perkins v. Brinkley, 133 N.C. 86, 45 S.E. 465; Harris v. Russell, 124 N.C. 547, 32 S.E. 958. After marriage the persons may release and quitclaim any rights as they might respectively acquire or may have acquired by marriage in the property of each other. G.S. 52-10. Such transactions between husband and wife are, however, subject to the provisions of G.S. 52-6, which provides that \u201cno 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 . . . unless such contract ... 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.\u201d\nAntenuptial contracts, when properly executed and acknowedged, are not against public policy and may act as a bar to the wife\u2019s right to dissent and to petition for a year\u2019s allowance. Turner v. Turner, 242 N.C. 533, 89 S.E. 2d 245; Perkins v. Brinkley, supra.\nA married woman or widow may directly attack the certificate of her acknowledgment and privy examination respecting the execution of instruments during coverture which affect or change any part of the real estate belonging to her. The general grounds for permissible attack in this instance are (1) fraud, duress or undue influence known of or participated in by the grantee; (2) no appearance before the officer or no examination had; (3) forgery; or (4) mental incapacity or infancy. Eubanks v. Eubanks, 273 N.C. 189, 159 S.E. 2d 562; Lee v. Rhodes, 230 N.C. 190, 52 S.E. 2d 674.\nWe note that there is a vast difference between proof of no appearance and the denial of material findings in the certificate. As to the latter, when the certificate is regular in form and complies with G.S. 52-6, it is conclusive as to all matters which the statute requires the officer to certify except upon a showing of fraud or imposition in the procurement of the acknowledgment: Lee v. Rhodes, supra; Best v. Utley, 189 N.C. 356, 127 S.E. 337.\nThus, unless the certificate is attacked upon one of the above-stated grounds, when petitioner admitted her appearance before the Clerk of Superior Court, his certificate, regular in form, became conclusive and established that she acknowledged the due execution of the instrument and the purposes therein expressed; that she was privately examined separate and apart from her husband touching her voluntary execution of the same; that she signed the same freely and voluntarily without fear or compulsion of her said husband; and that it had been made to appear to the certifying officer\u2019s satisfaction, and he found as a fact, that the execution of the instrument' by petitioner was' not unreasonable or injurious to her.\nIt is obvious that plaintiff does not rely upon mental incapacity, infancy or forgery as grounds for attack on the contracts. We therefore look to the remaining possible grounds upon which she must rely.\nIn petitioner\u2019s \u201creply to response for application for year\u2019s allowance\u201d in Loftin v. Loftin, it was, in part, alleged:\n\u201c. . . That at the time of the purported execution of the Antenuptial Contract, the undersigned widow and the deceased had been married for some ten years and misrepre.-sentations were made to the widow at the time said contract was purportedly executed, both as to the assets of the deceased and as to the contents and meaning of said contract. That the execution of said contract was obtained through coercion and was in fact injurious and unfair to the undersigned widow.\u201d\nWe note that no similar allegations were contained in her \u201creply to answer to dissent to will\u201d in the action of In Re Loftin.\nPetitioner\u2019s strongest averments as to fraud or duress were to the effect that she did not know and was not advised as to the value of the assets of her husband\u2019s estate at the time she executed the instruments; that she signed the duplicate contract at her husband\u2019s insistence; and that although she appeared before the Clerk of Superior Court of Lenoir County on both occasions, she denied that she executed the instruments freely and voluntarily or that she was properly examined by the Clerk.\nIn order to obtain relief from a contract on the ground of fraud, the moving party must show false representation of a past or subsisting material fact, made with fraudulent intent and with knowledge of its falsity, which representation was relied upon when the party executed the instrument. Davis v. Davis, 256 N.C. 468, 124 S.E. 2d 130; Barnes v. House, 253 N.C. 444, 117 S.E. 2d 265.\nUndue influence is a fraudulent influence over the mind and will of another to the extent that the professed action is not freely done but is in truth the act of the one who procures the result. Lee v. Ledbetter, 229 N.C. 330, 49 S.E. 2d 634; Greene v. Greene, 217 N.C. 649, 9 S.E. 2d 413. Duress is the result of coercion and may be described as the extreme of undue influence and may exist even when the victim is aware of all facts material to his decision. Link v. Link, 278 N.C. 181, 179 S.E. 2d 697; 25 Am. Jnr. 2d, Duress and Undue Influence \u00a7 1, page 353.\nWe agree with the holding of the Court of Appeals that petitioner\u2019s allegations of fraud amounted to a mere conclusion not in compliance with G.S. 1A-1, Rule 9(b), or our former decisions, which require particular statements of the circumstances allegedly constituting fraud or duress. Products Corp. v. Chestnutt, 252 N.C. 269, 113 S.E. 2d 587; G.S. 1A-1, Rule 9 (b). Certainly there were no allegations sufficient to allege undue influence or duress.\nHowever, we call attention to the fact that this case differs procedurally from the case of Van Every v. Van Every, 265 N.C. 506, 144 S.E. 2d 603, upon which the Court of Appeals partially relied. In Van Every there was a motion for judgment on the pleadings, and the cause was dismissed for failure of the plaintiff to allege facts which, if found to be true, would permit a legitimate inference of fraud. In instant case, there was a motion for summary judgment pursuant to G.S. 1A-1, Rule 56, which made it incumbent upon the trial judge to consider the pleadings, affidavits, interrogatories, deposition and admissions which were before him. After such consideration, the trial judge correctly dismissed the actions upon finding that no genuine issue of material fact was raised in either proceeding.\nWe also observe in passing that the Court of Appeals used language which seemed to interpret our decision in Turner v. Turner, 242 N.C. 533, 89 S.E. 2d 245, to require that an ante-nuptial agreement satisfy the provisions of G.S. 52-6. It appears to us that this Court in Turner, while considering the total circumstances surrounding the execution of the antenuptial agreement, merely observed that the Clerk of Superior Court of Gates County did conduct a privy examination incorporating in his certificate the statement that the agreement was not unreasonable or injurious to the femme contractor.\nIn our opinion the correct rule is stated by Dr. Robert E. Lee in his North Carolina Family Law, Vol. 2, \u00a7 181, page 364, as follows:\n\u201cN. C. Gen. Stat. \u00a7 52-12 [now renumbered as \u00a7 52-6] is not applicable to antenuptial agreements. It is limited in its application to contracts between the husband and wife which affect the real estate of the wife and separation agreements. Antenuptial agreements are not made between a husband and a wife \u2018during their coverture.' A postnuptial agreement between the husband and wife which affects or changes any part of the wife\u2019s real estate must, of course, comply with the provisions of N. C. Gen. Stat. \u00a7 52-12 [now renumbered as \u00a7 52-6].\u201d\nWe do not deem it necessary to discuss the question of whether petitioner was barred by her acceptance of benefits under the will since we hold that the contracts affecting her real property effectively barred her rights to dower and a year\u2019s allowance.\nThe opinion of the Court of Appeals is\nAffirmed.\nChief Justice Bobbitt not sitting.", "type": "majority", "author": "BRANCH, Justice." } ], "attorneys": [ "Donald P. Brock for -petitioner appellant.", "Jeffress, Hodges, Morris and Rochelle, P.A., by A. H. Jef-fress, for respondent appellee." ], "corrections": "", "head_matter": "IN RE: THE ESTATE OF KIRBY W. LOFTIN, deceased (72E146) and SYBIL LEWIS LOFTIN, Petitioner-Appellant (73SP35) v. KIRBY C. LOFTIN, Executor of the Estate of KIRBY W. LOFTIN, Respondent-Appellee\nNo. 36\n(Filed 10 October 1974)\n1. Husband and Wife \u00a7 2 \u2014 antenuptial agreement \u2014 enforcement\nA man and woman contemplating marriage may enter into a valid contract with respect to the property and property rights of each after the marriage, and such contracts will be enforced as written.\n2. Husband and Wife \u00a7 4 \u2014 release of property rights after marriage \u2014 privy examination of wife\nAfter marriage persons may release and quitclaim any rights as they might respectively acquire or may have acquired by marriage in the property of each other; however, such transactions between husband and wife are subject to the provisions of G.S. 62-6 requiring that the contracts be in writing and that the wife be given a privy examination. G.S. 52-10.\n3. Husband and Wife \u00a7 2 \u2014 antenuptial agreement \u2014 wife\u2019s right to dissent\u2014 year\u2019s allowance\nAntenuptial contracts, when properly executed and acknowledged, are not against public policy and may act as a bar to the wife\u2019s right to dissent and to petition for a year\u2019s allowance.\n4. Husband and Wife \u00a7 5\u2014 privy examination of wife \u2014 grounds for attack on certificate\n' A married woman or widow may directly attack the certificate of her acknowledgment and privy examination respecting the execution of instruments during coverture which affect or change any part of the real estate belonging to her on the grounds of (1) fraud, duress or undue influence known of or participated in by the grantee; (2) no appearance before the officer and no examination had; (3) forgery; (4) mental incapacity or infancy.\n5. Husband and Wife \u00a7 5 \u2014 certificate of privy examination \u2014 conclusiveness\nWhen a certificate of privy examination is regular in form and complies with G.S. 52-6, it is conclusive as to all matters which the statute requires the officer to certify except upon a showing of fraud or imposition in the procurement of the acknowledgment.\n6. Fraud \u00a7 3 \u2014 material misrepresentation of fact\nIn order to obtain relief from a contract on the ground of fraud, the moving party must show false representation of a past or subsisting material fact, made with fraudulent intent and with knowledge of its falsity, which representation was relied upon when the party executed the instrument.\n7. Duress; Fraud \u00a7 9 \u2014 undue influence \u2014 duress \u2014 definitions\nUndue influence is a fraudulent influence over the mind and will of another to the extent that the professed action is not freely done but is in truth the act of the one who procures the result, while duress is the result of coercion and may be described as the extreme of undue influence and may exist even when the victim is aware of all facts material to his decision.\n8. Fraud \u00a7 9; Husband and Wife \u00a7 5\u2014 release of rights in husband\u2019s estate by wife \u2014 sufficiency of allegations of fraud\nAllegations by testator\u2019s widow that she did not know and was not advised as to the value of the assets of her husband\u2019s estate at the time she executed instruments releasing her rights in her husband\u2019s estate, that she signed the duplicate contract of release at her husband\u2019s insistence, and that although she appeared before the clerk of superior court on two occasions, she denied that she executed the instruments freely and voluntarily or that she was properly examined by the clerk were insufficient to allege fraud, undue influence or duress . in the execution of the instruments.\n9. Husband and Wife \u00a7 2 \u2014 antenuptial agreement \u2014 privy examination statute inapplicable\nThe statute relating to a privy examination of the wife, G.S. 52-6, does not apply to antenuptial agreements.\nChief Justice Bobbitt not sitting.\nAppeal by petitioner-appellant Sybil Lewis Loftin from the decision of the Court of Appeals, reported in 21 N.C. App. 627, 205 S.E. 2d 574, finding no error in the judgment of James, /., at the 10 September 1973 Session of Lenoir County Superior Court.\nThis appeal presents two separate but related actions which were consolidated for trial. In the first action (No. 72E146), Sybil Lewis Loftin, widow of Kirby W. Loftin, deceased, filed a dissent to the will of her late husband pursuant to Article 1 of Chapter 30 of. the General Statutes of North Carolina. Petitioner\u2019s husband had died testate on 26 July 1973 leaving an estate valued in excess of five hundred thousand dollars. By the terms of his will, he left to petitioner the sum of five thousand dollars and a life estate in the homeplace. The executor of the estate of Kirby W. Loftin filed answer setting up in bar of petitioner\u2019s dissent, inter alia, a \u201cDuplicate Antenuptial Contract,\u201d executed 14 May 1968 by petitioner and deceased.\nThe original contract, executed 30 December 1958, was lost when the safe in which the document was kept was burglarized. Both the 1958 and 1968 contracts contained a certificate of privy examination by the Clerk of Superior Court in due form, which certified that petitioner personally appeared before him for private examination and further certified that the proposed contract was not injurious to the wife and that she had assented to the provisions thereof by her own free will and not through any coercion or fear of her husband.\nThe provision of the contract especially pertinent to decision states:\n\u201cSecond: That the party of the second part [petitioner] hereby releases, renounces, and quitclaims, all dower and all other rights in the real property, and all right to participate in the distribution of the personal property,, and all claims for a year\u2019s allowance in the property of the said party of the first part [testator], should she survive him, both as to property now owned by him and property hereafter acquired, together with the right to administer on his estate.\u201d\nAs a second defense to the action, the executor alleged the fact that Sybil Lewis Loftin had accepted both the five-thousand-dollar bequest which she received under the will of her late husband and the life estate in the K. W. Loftin home, which she also received under the last will and testament of her late husband.\nOn these grounds the executor prayed the court that it enter an order declaring the dissent null and void and of no force or effect and declaring that Sybil Lewis Loftin was entitled to no interest in any real or personal property of Kirby W. Loftin either under his will or by intestacy.\nIn the other cause of action (No. 73SP35), petitioner, pursuant to G.S. 30-27 et seq., seeks her year\u2019s allowance. The executor, answering this petition, again set up the \u201cDuplicate Antenuptial Agreement\u201d in bar of any such allowance.\nThe widow replied in both actions and contended that she was misled and did not know the extent of the contractual provisions which she signed; that she signed the agreement pleaded in bar after repeated importunity of her husband; and that she was at no time privately examined, separate and apart from her husband, by the Clerk of Superior Court. Petitioner admitted the genuineness of the signatures appearing on the duplicate antenuptial contract dated 14 May 1968.\nThe executor moved for summary judgment in each case. After consideration of the pleadings, the admissions, the contract dated 14 May 1968, the petitioner\u2019s admission of genuineness of signatures, and petitioner\u2019s affidavits, Judge James made findings of fact and rendered summary judgment in favor of the executor in each action. Petitioner appealed.\nThe Court of Appeals, Judge Vaughn dissenting, found no error. Petitioner appealed to this Court as a matter of right under G.S. 7A-30(2).\nDonald P. Brock for -petitioner appellant.\nJeffress, Hodges, Morris and Rochelle, P.A., by A. H. Jef-fress, for respondent appellee." }, "file_name": "0717-01", "first_page_order": 749, "last_page_order": 756 }