Godwin v. Wachovia Bank & Trust Company
131 S.E.2d 456
N.C.
1963
Check Treatment
Denny, C.J.

It is universally recognized in this 'country that a power of attorney, unless coupled with an interest, is terminated by the death of the principal. The power of attorney involved in this case was not coupled with an interest and was revoked upon the death of Nell J. Griffin. Fisher v. Trust Co., 138 N.C. 90, 50 S.E. 592; Bank v. Grove, 202 N.C. 143, 162 S.E. 204; Dowling v. Winters, 208 N.C. 521, 181 S.E. 751; Julian v. Lawton, 240 N.C. 436, 82 S.E. 2d 210.

The execution of the trust agreement under consideration was not acknowledged as required by G.S. 52-12. Even so, Chapter 1178 of the 1957 Session Laws of North Carolina purports to cure this defect. The Act, which became effective 10 June 1957, provides: “Any contract between husband and wife coming within the provisions of G.S. 52-12 executed between July 1, 1955 and the effective date of this Section which does not comply with the requirement of a private examination of the wife and which is in all other respects regular is hereby validated and confirmed to the same extent as if the examination of the wife had been separate and apart from the husband.”

Our decisions have been to the effect that an attempted conveyance by a wife to the husband, directly or indirectly, without the private examination and certificate as required by G.S. 52-12, is absolutely void. Foster v. Williams, 182 N.C. 632, 109 S.E. 834; Ingram v. Easley, 227 N.C. 442, 42 S.E. 2d 624, and cases cited therein; Honeycutt v. Bank, 242 N.C. 734, 89 S.E. 2d 598; Davis v. Vaughn, 243 N.C. 486, 91 S.E. 2d 165.

We have also expressed doubt as to whether or not such defective acknowledgment could be rendered valid by a subsequently passed statute. Foster v. Williams, supra. Be that as it may, conceding but not deciding that this trust agreement was void as an inter vivos or active trust during the lifetime of the Griffins, such agreement was incorporated in the respective wills of the Griffins by reference and made an integral part thereof as effectively, in our opinion, as if the trust agreement had been set out in full in each of the Griffins’ wills.

In the case of Watson v. Hinson, 162 N.C. 72, 77 S.E. 1089, Hoke, J., speaking for the Court said: “It is well recognized in this State that a will, properly executed, may so refer to another unattested will or other written paper or document as to incorporate the defective instrument and make the same a part of the perfect will, the conditions being that the paper referred to shall be in existence at the time the second will be executed, and the reference to it shall be in terms so clear and distinct that from a perusal of the second will, or with the aid of parol or other proper testimony, full assurance is given that the identity of the extrinsic paper has been correctly ascertained. The principle is sometimes referred to as ‘The doctrine of incorporation by reference,’ and is very well stated by Chief Justice Gray in Newton v. Seaman’s Friend Society, 130 Mass. 91, as follows: Tf a will, executed and witnessed as required by statute, incorporates in itself by reference any document or paper not so executed and witnessed, whether the paper referred to be in the form of a will or codicil, or of a deed or indenture, or of a mere list or memorandum, the paper referred to, if it was in existence at the time of the execution of the will, and is identified by clear and satisfactory proof as the paper referred to therein, takes effect as part of the will, and should be admitted to probate as such.’ While there are some discrepancies in the application of the principle to the facts of the different cases, this statement is in accord with the great weight of authority here and in other jurisdictions in this country and in England, where the subject has been very much considered.”

In 94 C.J.S., Wills, section 163, page 952, et seq., it is said: “The doctrine of incorporation by reference, as applied to wills, is followed in many jurisdictions. Under this doctrine, and subject to certain conditions and limitations, a properly executed will incorporates in itself by reference any document or paper not so executed, so as to take effect as part of the will, whether such document or paper be in the form of a will, codicil, contract, deed, or other written form of conveyance of realty, mere list, schedule, or memorandum. If the document is incorporated by reference it makes no difference whether or not the document of itself was valid at law.”

In Montgomery v. Blankenship, 217 Ark. 357, 230 S.W. 2d 51, 21 A.L.R. 2d 212, the Court said: “As stated in 1 Page on Wills (Lifetime Ed.), Sec. 266, p. 522: 'If incorporated by reference it makes no difference whether the original document of itself was valid at law or not. A deed invalid because it never was delivered, may be in corpo-rated in a will. A prior defectively executed will, or the will of another person, or a part of the will of another person, may thus be incorporated. * ® The incorporated document may be treated as part of the will for the purpose of ascertaining the beneficiaries and the share to be given to each.’ ”

In the case of Fifth Third Union Trust Co. v. Wilensky, 79 Ohio App. 73, 70 N.E. 2d 920, the Court -said: “A deed, a contract, or any other instrument may be incorporated in a will by reference, and its terms employed .as testamentary clauses, 'although such instrument may have lost its force as to the peculiar original purpose of the document.”

Likewise, in In re Sciutti’s Estate, 371 Pa. 536, 92 A. 2d 188, it was held that “an extrinsic writing, having no validity in itself as a will, nevertheless may be incorporated by reference as part of a valid will.”

In the case of Clark v. Citizens National Bank of Collingswood, 38 N.J. Super. 69, 118 A. 2d 108, the Court held, contrary to the above views, to the effect that where no valid trust existed, the trust instrument could not be incorporated by reference in a will. However, this seems to be the minority view.

The evidence in this case is to the effect that the Griffins first executed the trust agreement on 13 October 1956 and then immediately thereafter executed their respective wills.

Furthermore, the Griffins were not responsible for the failure of their attorney to have the trust agreement properly executed in accordance with the provisions of G.S. 52-12. Even so, as stated in Lawrence v. Ashba, 115 Ind. App. 485, 59 N.E. 2d 568, “it is apparent however that their minds did meet on a particular testamentary disposition of the property to accomplish a particular purpose, 'and that they intended the wills made pursuant thereto to remain unrevoked .at their death. The mutual agreement of the makers of the wills was sufficient consideration to bind the promisors. Equity will enforce such an .agreement when well and fairly founded, and will not suffer one of the contracting parties to defraud and defeat his obligation, but will fasten a trust upon the property involved. Plemmons v. Pemberton, supra (1940, 346 Mo. 45, 139 S.W. 2d 910); Sample v. Butler University, 1937, 211 Ind. 122, 4 N.E. 2d 545, 5 N.E. 2d 888, 108 A.L.R. 857; Brown v. Johanson, 1921, 69 Colo. 400, 194 P 943; 69 C.J., p. 1302, section 2725.”

The appellant assigns as error the refusal of the court below to permit the plaintiff to testify regarding the instructions given him by the Griffins in connection with the preparation of the power of attorney, the trust agreement, and the wills involved herein, as well as to conversations with the Griffins in respect thereto. This evidence was excluded by reason of the provisions of G.S. 8-51.

The testimony of a witness is incompetent under the provisions of the above statute when it appears (1) that such witness is a party, or interested in the event, (2) that his testimony relates to a personal transaction or communication with the deceased person, (3) that the action is -against the personal representative of the deceased or a person deriving title or interest from, through or under the deceased, and (4) that the witness is testifying in his own behalf or interest. Collins v. Covert, 246 N.C. 303, 98 S.E. 2d 26; Sanderson v. Paul, 235 N.C. 56, 69 S.E. 2d 156; Peek v. Shook, 233 N.C. 259, 63 S.E. 2d 542; Bunn v. Todd, 107 N.C. 266, 11 S.E. 1043.

Since the plaintiff is a party to this action, this assignment of error must be overruled.

It is stated in Anno. — Joint, Mutual, and Reciprocal Wills, 169 A.L.R., page 22: “The general rule is that a will jointly executed by two persons, being in effect the separate will of each of them, is revocable at any time by either one of them, at least where there is no contract that the joint will shall remain in effect,” citing Ginn v. Edmundson, 173 N.C. 85, 91 S.E. 696. See also Walston v. College, 258 N.C. 130, 128 S.E 2d 134

In Ginn v. Edmundson, supra, where a husband and wife made a joint will disposing of property held as tenants by the entireties, it was held that the survivor could revoke the will at pleasure -and take the property 'free of the will. The Court said: “A j oint or conj oint will is a testamentary instrument executed by two or more persons, in pursuance of a common intention, for the purpose of disposing of their several interests in property owned by them in common, or of their separate property treated as a common fund, to a third person or persons, and a mutual or reciprocal will is one in which two or more persons make mutual or reciprocal provisions in favor of each other. “ * * (I)n the absence of contract based upon consideration, such wills may be revoked at pleasure. * *”

In the case of In re Davis’ Will, 120 N.C. 9, 26 S.E. 636, 38 L.R.A. 289, 58 Am. St. Rep. 771, which involved what purported to be a joint will, this Court said: “There is nothing from which it can be implied even that there was any agreement that if one should devise to these devisees the other would do so, or that if one should afterwards revoke, the other would do so. Either had the right to do so, and without notice to the other. It is not like the case of a mutual will, in which after the husband’s death, by which event the wife’s estate was much increased, she makes another will and diverts the husband’s property from the course intended and agreed upon by them at the execution of the joint will. In such case the probate court was unable to control and prevent the wrong, but a court of equity takes hold on the ground of preventing a fraud.”

It is equally well settled that where a husband and wife make an agreement for the disposition of their respective estates, in a particular manner, and execute either a joint will or separate wills providing for the disposition of their estates in accordance with the agreement, such agreement may be upheld by specific performance. Turner v. Thiess, W.Va., 38 S.E. 2d 369; Underwood v. Myer, 107 W.Va. 57, 146 S.E. 896; Deseumeur v. Rondel, 76 N.J. Eq. 394, 74 A. 703; Ohms v. Church of the Nazarene, Weiser, Idaho, 64 Idaho 262, 130 P 2d 679; 57 Am. Jur., Wills, Section 718, page 488, et seq.; 97 C.J.S., Wills, Section 1367, page 307, et seq.

In 97 C.J.S., Wills, section 1367 (d), page 305, it is said: “The rights and obligations of the parties to an agreement to make a joint or mutual will are determined by the terms of the agreement; where the intent of the contracting parties is expressed in clear and unambiguous language, the court is relieved of the necessity of resorting to rules of construction, but has the duty to give the contract effect according to its terms. In ascertaining the contract, the situation of the parties and the surrounding circumstances may properly be considered, as in the case of contracts generally; and the contract, or agreement, must be construed in the light of the joint will executed simultaneously therewith. Where the makers of mutual wills make a contract as to the disposition of property, the court will give effect to the contract as made, rather than attempt construction by implication or insertion by reference.”

In Thompson on Wills (Second Edition), section 153, page 200, it is said: “As a general rule, a -mutual or joint will may be revoked .by either of -the comakers, provided it was not made in pursuance of a contract. But where such will has been executed in pursuance of a compact or agreement entered into by the testators to devise their separate property to certain designated beneficiaries, -subject to a life estate or other interest in the survivor, it is generally held irrevocable when, upon the death of one, the survivor avails -himself of the benefits of the devise in his favor.

“In the absence of a valid contract, however, the mere concurrent execution of the will, with full knowledge of its contents by both testators, is not enough to establish a legal obligation to forbear revocation. On the other -hand, mutual wills executed in pursuance of a contract are not irrevocable in such sense that -one of the makers can not make a subsequent will which will be entitled to probate, although the remedy for breach of such contract may be enforceable in a -court o-f equity. A joint and mutual will is revocable during the joint lives -by either party, so far -as relates to his own disposition, upon giving notice to the other party; but it becomes irrevocable after the death of one of them, if the survivor takes advantage of the provisions made by the other.”

In o-ur opinion, when the wills of the Griffins are considered in light of the provisions contained in the trust agreement, which agreement was incorporated by reference in both wills as containing the provisions for the disposition of their respective estates, the wills themselves establish the existence of the contract and the plaintiff is entitled to specific performance for the benefit of the beneficiaries named in the mutual wills, and we so hold.

The appellant assigns as error the refusal of tire court below, as a matter of law, to make allowance of attorney fees for his counsel, and in the discretion of the court to tax the costs against the defendant Wachovia Bank & Trust Company.

G.S. 6-21, as amended by Chapter 1364 of the 1955 Session Laws of North Carolina, and codified as G.S. 6-21 (2) in the 1961 Cumulative Supplement, leaves the taxing of .court costs and the apportionment thereof to be made in the discretion of the -court. Moreover, the fixing of reasonable attorney fees in applicable -cases is likewise a matter within the -sound discretion of the trial court. Little v. Trust Co., 252 N.C. 229, 113 S.E. 2d 689; Hoskins v. Hoskins, poist, 704.

We think there was error in ruling as a matter of law that the petition for counsel fees should be denied.

In view of the conclusion we have reached, the appellant’s assignment of error to the sustaining of the defendants’ motion for judgment as of nonsuit is upheld, and the judgment entered below is

Reversed.