Appeal by caveator from order entered 22 January 2001 by Judge
Loto Greenlee Caviness in Henderson County Superior Court. Heard
in the Court of Appeals 21 February 2002.
Prince Youngblood & Massagee, by Boyd B. Massagee, Jr., and
Sharon B. Alexander, for propounder-appellee.
Law Offices of E.K. Morley, PLLC, by E.K. Morley, for
caveator-appellant.
MARTIN, Judge.
Josephine S. Lamanski died on 6 July 1998 in Henderson County.
On 17 July 1998, a paper writing (“the will”) was presented to the
Clerk of Superior Court of Henderson County for probate as Mrs.
Lamanski's last will and testament. Item II of the will provided:
Item II: I give and bequeath to my sister,
Mary C. Sambor, her choice of any tangible
personal property in my home, if she survives
me.
In Item III of her will, Mrs. Lamanski made specific bequests of
cash and personal property to two brothers, a niece, and a nephew,
and devised her home and the contents not otherwise bequeathed to
Tracy Burns, subject to any mortgage indebtedness existing at the
time of Mrs. Lamanski's death. The will named Mrs. Lamanski's
attorney, Carlton M. Green of College Park, Maryland, as her
Personal Representative, and Tracy Burns as successor Personal
Representative if Mr. Green was unable or unwilling to serve. Mr.
Green renounced and Ms. Burns qualified as executrix of Mrs.Lamanski's estate.
Ms. Sambor selected and received numerous items of personal
property pursuant to the bequest. However, a disagreement arose
between Ms. Sambor and the executrix over the alleged failure of the
executrix to deliver certain items to which Ms. Sambor contended she
was entitled and, on 5 May 1999, Ms. Sambor filed a petition to
revoke the Letters Testamentary issued to Ms. Burns. In the
petition, Ms. Sambor affirmatively alleged,
inter alia:
2. That the said decedent left a Last Will and
Testament dated April 7, 1997, which was
admitted to probate on July 17, 1998.
4. ITEM II of the Last Will & Testament of the
named decedent as probated bequeaths to the
decedent's surviving sister, Mary C. Sambor,
her choice of any tangible personal property in
decedent's home.
The petition alleged that Ms. Burns had failed to deliver certain
items of personal property requested by Ms. Sambor, and that such
failure warranted her removal as executrix of Mrs. Lamanski's
estate. None of the items which she received as a result of the
bequest was returned to the estate by Ms. Sambor.
On 15 November 1999, Ms. Sambor, as caveator, filed a caveat
to the will, in which she alleged the will was made as a result of
duress and undue influence exerted upon Mrs. Lamanski by Tracy
Burns. Ms. Burns, as respondent-propounder, filed a response to the
caveat, denying the allegations of duress and undue influence and
asserting,
inter alia, the affirmative defense that, due to her
acceptance of the bequest contained in the will, Ms. Sambor is
estopped to deny the will's validity. Respondent-propounder moved for summary judgment. The trial
court found there were no genuine issues of disputed fact that the
caveator, Ms. Sambor, had elected to receive property under the
will, and that in her petition to remove Ms. Burns as executrix, she
had affirmatively pleaded her entitlement to receive property under
the will. The trial court concluded that Ms. Sambor, having had
previously asserted the validity of the will and accepted benefits
thereunder, was estopped to challenge the will's validity through
the caveat proceeding. Caveator appeals from the order allowing
respondent-propounder's motion for summary judgment.
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Summary judgment is proper “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that any party is entitled to a judgment as
a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2001). The
burden is on the moving party to show the absence of any genuine
issue of fact and his entitlement to judgment as a matter of law.
First Federal Savings & Loan Ass'n. v. Branch Banking & Trust Co.,
282 N.C. 44, 191 S.E.2d 683 (1972)
. A party moving for summary
judgment in the defense of an action may satisfy that burden by
showing that the party asserting the claim cannot overcome an
affirmative defense which would bar the action.
Roumillat v.
Simplistic Enterprises, Inc., 331 N.C. 57, 414 S.E.2d 339 (1992).
In ruling on a motion for summary judgment, the court is not
authorized to resolve any issue of fact, only to determine whetherthere exists any genuine issue of fact material to the outcome of
the case.
Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975).
The issue raised by this appeal is whether appellant-caveator
is estopped from maintaining a caveat proceeding denying the
validity of Mrs. Lamanski's will by her earlier petition in which
she asserted entitlement to property under the will and sought to
remove Ms. Burns as executrix for alleged violations of her duties
under the will. Guided by the decision of our Supreme Court in
In
re Averett's Will, 206 N.C. 234, 173 S.E. 621 (1934), we answer the
issue adversely to appellant-caveator.
In
Averett, the petitioners initially filed a special
proceeding requesting a partition of land owned by the petitioners
and the respondents, Lottie and Marvin Averett. The petitioners
then amended their original petition, stating that,
“since the filing of the original petition in
this proceeding the defendant, Lottie Mize
Averett, has died leaving a last will and
testament, which was probated and filed in
Sampson County, North Carolina, on May 2, 1933,
and by the terms of which she devised all her
interest in the land involved in this
proceeding to her husband, Marvin Averett; that
the said Marvin Averett, according to the terms
of said will, is now the owner of a one-ninth
undivided fee simple interest in and to said
land, and that summons in this proceeding has
been duly served upon said Marvin Averett.”
Id. at 235-36, 173 S.E. at 621.
While the partition proceeding was pending, petitioners filed
a caveat to Lottie Averett's will, alleging that the will was
obtained by Marvin Averett through undue influence and duress, and
that Marvin Averett was not actually the lawful husband of thedecedent.
Id. at 236, 173 S.E. at 622. The Court affirmed the
trial court's dismissal of the caveat on the basis of estoppel.
Id.
at 238, 173 S.E. at 623.
Where a person has, with knowledge of the
facts, acted or conducted himself in a
particular manner, or asserted a particular
claim, title, or right, he cannot afterwards
assume a position inconsistent with such act,
claim, or conduct to the prejudice of another.
. . . A claim made or position taken in a
former action or judicial proceeding will estop
the party to make an inconsistent claim or take
a conflicting position in a subsequent action
or judicial proceeding to the prejudice of the
adverse party, where the parties are the same,
and the same questions are involved.
Id. at 238, 173 S.E. at 622-23 (citations and internal quotations
omitted). Although the Court
acknowledged that, at least
technically, different questions were presented in the two
proceedings, it nevertheless held that the caveators were estopped
from contesting the validity of the will after they had taken an
inconsistent position in the partition proceeding.
Id. “A party
cannot either in the course of litigation or in dealings
in pais
occupy inconsistent positions, and, where one has an election
between several inconsistent courses of action, he will be confined
to that which he first adopts.”
In re Lloyd's Will, 161 N.C. 557,
559, 77 S.E. 955, 956 (1913).
In the present case, appellant-caveator is estopped from
challenging the will because she previously relied on the will to
assert rights to personal property bequeathed to her therein. It
is undisputed that Ms. Sambor selected items of personal property
from Mrs. Lamanski's home and requested that they be delivered toher. Ms. Burns, as executrix under the will, caused many of those
items to be delivered to Ms. Sambor, and Ms. Sambor admitted that
she was in possession of those items. Ms. Sambor then filed a
petition to revoke the letters testamentary issued to Ms. Burns,
claiming entitlement under the will to additional items which she
contended Ms. Burns had refused to deliver to her in breach of her
fiduciary duty under the will. Having judicially asserted rights
consistent with the validity of the will, appellant-caveator is
estopped, in a subsequent proceeding, from asserting the
inconsistent position of disputing the will's validity.
See In re
Averett's Will, 206 N.C. 234, 173 S.E. 621.
Nevertheless, appellant-caveator argues that if the will were
to be set aside, she would be entitled to one-third of the net
estate. Thus, she contends, she can not be estopped from contesting
the will because she was legally entitled to the property which she
received regardless of the validity of the will. Under the facts
of this case, we reject her argument.
Although it is the general rule that one who accepts and
retains benefits under a will is estopped to contest the will's
validity,
Mansour v. Rabil, 277 N.C. 364, 177 S.E.2d 849 (1970),
“[o]ne cannot be estopped by accepting that which he would be
legally entitled to receive in any event.”
In re Peacock's Will,
18 N.C. App. 554, 556, 197 S.E.2d 254, 255 (1973) (citation
omitted).
In
Peacock, the decedent's son received a cash bequest
which was less than the amount he would have been entitled to
receive if the will were set aside. Since he would have beenlegally entitled to receive an amount in excess of that which he
accepted under the will, his acceptance of the bequest did not estop
him from contesting the validity of the will.
Id. In the present
case, however, appellant-caveator would have had no legal right,
outside the will, to the specific personal property which she
received and retained pursuant to the specific bequest in Mrs.
Lamanski's will.
See N.C. Gen. Stat. § 28A-22-8 (2001) (“Unless
otherwise restricted by the terms of the will or trust, an executor
or trustee shall have absolute discretion to make distributions in
cash or in specific property.”).
The order granting respondent-propounder's motion for summary
judgment and dismissing the caveat proceeding is affirmed.
Affirmed.
Judges HUDSON and CAMPBELL concur.
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