HOLT
v.
HOLT et al. (two cases).
No. 236.
Supreme Court of North Carolina.
October 18, 1950.*451 Wellons, Martin & Wellons, Levinson & Batton, Smithfield, and McLean & Stacy, Lumberton, for plaintiffs, appellants.
Abell, Shepard & Wood, Smithfield, for defendants, appellees.
ERVIN, Justice.
The answers deny the material allegations of the complaints, plead various statutes of limitation, and assert a want of capacity in plaintiffs to prosecute the suits. In consequence, the establishment of three distinct propositions is indispensable to the causes of action alleged by plaintiffs. These are: (1) That the decedent, A. F. Holt, Sr., was induced to execute the conveyances in controversy by fraud or undue influence of the defendants and their alleged co-conspirator, Clifton G. Holt; (2) that the cause of action arising out of this wrong existed in A. F. Holt, Sr., at the time of his death; and (3) that such cause of action thereupon passed to the plaintiffs in their capacities as heirs and next of kin of A. F. Holt, Sr.
The soundness of this observation becomes manifest when due heed is paid to relevant things. To create civil liability for conspiracy, a wrongful act resulting in injury to another must be done by one or more of the conspirators pursuant to the common scheme and in furtherance of the common object. The gravamen of the action is the resultant wrong, and not the conspiracy itself. Ordinarily the conspiracy is important only because of its bearing upon rules of evidence, or the persons liable. 11 Am.Jur., Conspiracy, section 45.
In the last analysis, the wrong charged in the instant cases is that of procuring property from the decedent, A. F. Holt, Sr., by fraud or undue influence. As we shall see, this was a wrong against the decedent, and not a wrong against the plaintiffs. Hence the plaintiffs are asserting alleged rights which are essentially derivatives from their ancestor. The significance of this fact must not be obscured in any degree by the allegations of the complaints that the alleged conspirators procured the conveyances from A. F. Holt, Sr., to deprive the plaintiffs of their rights of inheritance as prospective heirs and distributees of their then living ancestor.
A child possesses no interest whatever in the property of a living parent. He has a mere intangible hope of succession. Allen v. Allen, 213 N.C. 264, 195 S.E. 801. His right to inherit the property of his parent does not even exist during the lifetime of the latter. Whitley v. Arenson, 219 N.C. 121, 12 S.E.2d 906; Bemis v. Waters, 170 S.C. 432, 170 S.E. 475. Such right arises on the parent's death, and entitles the child to take as heir or distributee nothing except the undivised property left by the deceased parent. Chinnis v. Cobb, 210 N.C. 104, 185 S.E. 638; Gosney v. McCullers, 202 N.C. 326, 162 S.E. 746.
In so far as his children are concerned, a parent has an absolute right to dispose of his property by gift or otherwise as he pleases. He may make an unequal distribution of his property among his children with or without reason. These things being true, a child has no standing at law or in equity either before or after the death of his parent to attack a conveyance by the parent as being without consideration, or in deprivation of his right of inheritance. *452 Wootton v. Keaton, 168 Ark. 981, 272 S.W. 869; Ehrlich v. Tritt, 316 I11. 221, 147 N.E. 40; Childress v. Childress, 298 I11. 185, 131 N.E. 586; Rhodes v. Meredith, 260 I11. 138, 102 N.E. 1063, Ann.Cas.1914D, 416; McLaughlin v. McLaughlin, 241 I11. 366, 89 N.E. 645; Jones v. Jones, 213 I11. 228, 72 N.E. 695; Thorne v. Cosand, 160 Ind. 566, 67 N.E. 257; Lefebure v. Lefebure, 143 Iowa 293, 121 N.W. 1025; Clester v. Clester, 90 Kan. 638, 135 P. 996, L.R.A.1915E, 648; Doty v. Dickey, 96 S.W. 544, 29 Ky.Law. Rep. 900; Rossi v. Davis, 345 Mo. 362, 133 S.W.2d 363, 125 A.L.R. 1111; Brashears v. State ex rel. Oklahoma Public Welfare Commission, 194 Okl. 663, 154 P.2d 101; Mandel v. Bron, 270 Pa. 566, 113 A. 834; Hanes v. Hanes, Tex.Com.App., 239 S.W. 190, overuling motion for rehearing 234 S.W. 1078; In re Eckert's Estate, 14 Wash. 2d 497, 128 P.2d 656; In re Peterson's Estate, 12 Wash.2d 686, 123 P.2d 733; Roy v. Roy, 113 Wash. 609, 194 P. 590; Schumacher v. Draeger, 137 Wis. 618, 119 N.W. 305.
When a person is induced by fraud or undue influence to make a conveyance of his property, a cause of action arises in his favor, entitling him, at his election, either to sue to have the conveyance set aside, or to sue to recover the damages for the pecuniary injury inflicted upon him by the wrong. Van Gilder v. Bullen, 159 N.C. 291, 74 S.E. 1059; Modlin v. Roanoke Railroad & Nav. Co., 145 N.C. 218, 58 S.E. 1075. But no cause of action arises in such case in favor of the child of the person making the conveyance for the very simple reason that the child has no interest in the property conveyed and consequently suffers no legal wrong as a result of the conveyance. Carter v. McNeal, 86 Ark. 150, 110 S.W. 222; Moss v. Edwards, 146 Ga. 686, 92 S.E. 213; Pidcock v. Reid, 145 Ga. 103, 88 S.E. 564; Huffman v. Beamer, 191 Iowa 893, 179 N.W. 543; Seager v. Tholens, 182 A.D. 317, 170 N.Y.S. 482; Dodson v. Kuykendall, Tex.Civ.App., 127 S.W.2d 348.
The person making the conveyance may put an end to his cause of action during his lifetime by reducing it to judgment, or by ratifying the conveyance after the fraud has been discovered or the undue influence has ceased to operate. 26 C.J.S., Deeds, § 67. Besides, the cause of action may become barred by an applicable statute of limitation. G.S. § 1-52, subd. 9; Little v. Bank of Wadesboro, 187 N.C. 1, 121 S.E. 185; Muse v. Hathaway, 193 N.C. 227, 136 S.E. 633. But if the cause of action still exists in the person making the conveyance at the time of his death, it passes to those who then succeed to his rights. 18 C.J., Deeds, § 180; 26 C.J.S., Descent and Distribution, § 85. See, also in this connection: Ellis v. Barnes, 181 N.C. 476, 106 S.E. 29; Plemmons v. Murphy, 176 N.C. 671, 97 S.E. 648; Brown v. Brown, 171 N. C. 649, 88 S.E. 870.
The persons succeeding to the unimpaired right of a decedent to ratify or repudiate a conveyance for fraud or undue influence vary, depending upon whether the decedent died testate or intestate, and whether the property involved is real or personal. When the property is realty, the right passes to the heirs in case of intestacy, Pritchard v. Smith, 160 N.C. 79, 75 S.E. 803, and to the devisees in case the grantor leaves a will. Flythe v. Lassiter, 199 N.C. 804, 153 S.E. 844; Speed v. Perry, 167 N.C. 122, 83 S.E. 176. As a rule, actions to impeach transfers of personalty made by a decedent in his lifetime must be brought by his personal representative, and not by his legatees or distributees. In re Acken's Estate, 144 Iowa 519, 123 N.W. 187, Ann.Cas.1912A, 1166; 21 Am.Jur., Executors and Administrators, section 908. The legatees or distributees may sue, however, to recover personal assets of an estate when fraud, collusion, or a refusal to sue on the part of the personal representative renders such action necessary for the protection of ultimate rights accruing to them under a will or the statute of distribution. 26 C.J.S., Descent and Distribution, § 85; 34 C.J.S., Executors and Administrators, §739.
The plaintiffs claim succession to the right to prosecute these actions as heirs and next of kin of their ancestor, A. F. Holt, Sr. Their testimony reveals, however, that the Clerk of the Superior Court of Johnston County has admitted to probate *453 in common form as the last will of A. F. Holt, Sr., a certain paper writing, which is sufficient in form and substance to vest in the defendants all rights existing in A. F. Holt, Sr., at the time of his death. To be sure, the plaintiffs offered the record of such paper writing in evidence "for the purpose of attack," and undertake to avoid its legal effect as a testamentary conveyance of the rights of their ancestor to the defendants by asserting that its execution was induced by fraud or undue influence perpetrated on their ancestor by the defendants and their fellow conspirator, Clifton G. Holt. But the law does not permit the plaintiffs to assail the probated paper writing in this collateral fashion. Under the statute now codified as G.S. § 31-19, the order of the Clerk admitting the paper writing to probate constitutes conclusive evidence that the paper writing is the valid will of the decedent until it is declared void by a competent tribunal on an issue of devisavit vel non in a caveat proceeding. Whitehurst v. Hinton, 209 N.C. 392, 184 S.E. 66; Wells v. Odum, 205 N.C. 110, 170 S.E. 145; Crowell v. Bradsher, 203 N.C. 492, 166 S.E. 331; In re Will of Rowland, 202 N.C. 373, 162 S.E. 897; Moore v. Moore, 198 N.C. 510, 152 S.E. 391; In re Will of Cooper, 196 N.C. 418, 145 S.E. 782; Mills v. Mills, 195 N.C. 595, 143 S.E. 130; Citizens' Bank & Trust Co. v. Dustowe, 188 N.C. 777, 125 S.E. 546; Ewards v. White, 180 N.C. 55, 103 S.E. 901; Starnes v. Thompson, 173 N.C. 466, 92 S.E. 259; Holt v. Ziglar, 163 N.C. 390, 79 S.E. 805; McClure v. Spivey, 123 N.C. 678, 31 S.E. 857.
This being true, the plaintiffs have no standing to maintain these suits until the probated paper writing is declared invalid as a testamentary instrument by a competent tribunal in a caveat proceeding; for such paper writing wills all rights existing in A. F. Holt, Sr., at the time of his death to the defendants, with the result that nothing descends to the heirs or next of kin. Varner v. Johnston, 112 N.C. 570, 17 S.E. 483; Kashouty v. Deep, 75 U.S.App.D.C. 259, 126 F.2d 233; Anglin v. Hooper, 153 Ga. 734, 113 S.E. 195; Murray v. McGuire, 129 Ga. 269, 58 S.E. 841; Reed v. Reed, 225 Iowa 773, 281 N.W. 444; Altfather v. Bloom, 218 Mich. 582, 188 N.W. 428; Green v. Sumby, 230 Pa. 500, 79 A. 712; Gilkeson v. Thompson, 210 Pa. 355, 59 A. 1114.
This conclusion requires an affirmance of the compulsory nonsuits, and renders unnecessary any consideration of the questions whether the evidence adduced at the trial is sufficient to establish the facts constituting the causes of action alleged by plaintiffs, and whether such causes of action are barred by the statutes of limitation pleaded by defendants.
The judgments of involuntary nonsuit are
Affirmed.