Johnson v. Stevenson
152 S.E.2d 214
N.C.
1967
Check Treatment
Bobbitt, J.

Althоugh plaintiff does not so allege in express terms, her allegations, and the exhibits attached to the complaint, clearly imply that the paper writing dated March 14, 1933, wаs probated in common form on December 9, 1940, as the last will and testament of Jno. C. Stevenson and his wife, Nannie C. Stevenson, before the Clerk of the Superior Court of Davidsоn County, North Carolina. Plaintiff’s brief assumes this to be the fact. The gravamen of her complaint is that defendants hold the legal title they acquired under said will in trust for plaintiff to the extеnt of her interest as an heir of her parents. Hence, disposition of this appeal requires that this Court accept as fact for present purposes that said will was duly probated in common form on December 9, 1940.

“Under the statute now codified as G.S. 31-19, the order of the Clerk admitting the paper writing to probate constitutes conсlusive 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 devi-savit vel non in a caveat proceeding.” Holt v. Holt, 232 N.C. 497, 61 S.E. 2d 448; Hargrave v. Gardner, 264 N.C. 117, 141 S.E. 2d 36. “The attack must be direct and by caveat. A collateral attack is not permitted.” In re Will of Charles, 263 N.C. 411, 415, 139 S.E. 2d 588, 591, and cases cited.

Under the provisions of G.S. 31-32, prior to the 1951 аmendment (Session Laws of 1951, Chapter 496), plaintiff had seven years from December 9, 1940, to file a caveat to said will. Nothing in the record before us indicates she filed such caveat.

The only decision cited by plaintiff is Bohannon v. Trotman, 214 N.C. 706, 200 S.E. 852, in which this Court affirmed a judgment which, as part of a general family settlement, approved a compromise of the claim plaintiff had asserted in a prior action. In the prior actiоn, Bohannon v. Trust Co., 210 N.C. 679, 188 S.E. 390, this Court, as a basis for approval of an order for examination of an adverse party, held the plaintiff’s affidavits alleged facts sufficient to disclose plaintiff had a cause of action. The plaintiff had asserted, inter alia, that F. M. Bohannon, plaintiff’s grandfather, “had formed *203 the fixed intention and settled purpose of providing for the plaintiff in the distribution of his estate, and would have carried out this intention and purpose but for the wrongful acts of Laura Webb Bohannon and Maude Bohannon Trotman,” who, “by a conspiracy and false and fraudulent representаtions, deprived the plaintiff of a share in the ‍‌‌‌‌​‌‌​‌​​‌​​​​‌‌‌​​​‌‌‌‌​​​​‌​​​​‌​‌​​​​‌‌‌‌‌​‍estate of F. M. Bohannon,” by prevailing upon F. M. Bohannon “to change a definite plan which he had made to leave to the plaintiff, either by will or a trust instrument, a large share in his estate.” These distinguishing facts are noted: (1) F. M. Bo-hannon, by reason of said false and fraudulent representations, was induced to abandon his fixed intention to settle a large part of his estate on the plaintiff. (2) Since his father was living, plaintiff could not as heir caveat his grandfather’s will. Moreover, plaintiff would receive nothing from his grandfather’s estate in the event it were adjudged his grandfather died intestate.

A factual situation more analogous to that presently under consideration was involved in Holt v. Holt, supra, a decision cited and stressed by defendants. In Holt, separate actions were instituted by each of two sons of A. F. Holt, Sr., to recover damages on the ground their brothers, the defendants, by means of undue influence thеy exerted upon him, had induced the father to execute certain conveyances and a will in which the defendants were named as grantees and as devisees. It wаs held the will could be attacked only by caveat; and that, unless and until the will was declared invalid in a caveat proceeding, all rights existing in A. F. Holt, Sr., at the time of his death, to attack conveyancеs he had made, vested in the defendants as beneficiaries under the will. Although the sole relief sought by the plaintiffs was damages for alleged tortious conduct, the thrust of the decision is in accord with the conclusion stated below.

Here plaintiff seeks to establish a constructive trust. “A constructive trust is the formula through which the conscience of equity finds expression. When property has been acquired ‍‌‌‌‌​‌‌​‌​​‌​​​​‌‌‌​​​‌‌‌‌​​​​‌​​​​‌​‌​​​​‌‌‌‌‌​‍in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee.” Cardozo, J., in Beatty v. Guggenheim Exploration Co., 225 N.Y. 380, 386, 122 N.E. 378, 380, quoted with approval in Atkinson v. Atkinson, 225 N.C. 120, 127, 33 S.E. 2d 666, 671. “The forms and varieties of these (constructive) trusts, which are termed ex male-ficio or ex delicto, are practically without limit.” 4 Pomeroy’s Eq. Jurisprudenсe (Fifth Edition), § 1053. This statement is quoted with approval in Bryant v. Bryant, 193 N.C. 372, 377, 137 S.E. 188, 190.

*204 The position most favorable to plaintiff is stated by Curtis, J., in Caldwell v. Taylor, 218 Cal. 471, 23 P. 2d 758, 88 A.L.R. 1194, as follows: “Since the probate of a will is a matter exclusively within the jurisdiсtion of the probate court equity may not set aside the probate, but it may declare the beneficiary a trustee for those who have been defrauded. (Citatiоns) And such character of relief is common. The judgment, order, or decree from the effect of which relief is sought cannot constitute a bar to equitable relief. A рroceeding for equitable relief is not a collateral attack, and since its sole aim and purpose is to avoid the effect of said judgment, the doctrine of res judicata can have no application to such judgment. (Citations).” Even so, a constructive trust engrafted upon a de-visee's legal title changes radically the legal significance and consequences of the judgment or decree of probate.

“Where a disposition of property by will or an intestacy' is procured by fraud, duress or undue influence, the person acquiring the property holds it upon a constructive trust, unless adequate relief can otherwise ‍‌‌‌‌​‌‌​‌​​‌​​​​‌‌‌​​​‌‌‌‌​​​​‌​​​​‌​‌​​​​‌‌‌‌‌​‍he given in a probate court.” (Our italics) Restatement, Restitution § 184.

The grounds on which plaintiff seeks to establish a constructive trust were equally available as grounds for direct attack on the will by caveat. This right of direct attack by caveat gave her a full and complete remedy at law. Hеnce, plaintiff, on the facts alleged, is not entitled to equitable relief. Insurance Co. v. Guilford County., 225 N.C. 293, 300, 34 S.E. 2d 430, 434, and cases cited.

Our research discloses decisions in other jurisdictions recognizing the right of an heir to establish a constructive trust notwithstanding the probate of a will under which such heir is not a beneficiary where it is alleged and proved that the judgment or decree of probate was obtained under circumstances constituting extrinsic fraud, e. g., Caldwell v. Taylor, supra, and cases cited; Zaremba v. Woods, 17 Cal. App. 2d 309, 61 P. 2d 976; Purinton v. Dyson, 8 Cal. 2d 322, 65 P. 2d 777, 113 A.L.R. 1230; Seeds v. Seeds, 116 Ohio St. 144, 156 N.E. 193, 52 A.L.R. 761; Jacobsen v. Jacobsen, 164 Ohio St. 413, 131 N.E. 2d 833. In Caldwell, the alleged extrinsic fraud consisted of false and fraudulent representations made directly to the plaintiff after his father’s death and causing him to defer filing a caveat until after the time limit therefor (six months) had expired. In Zaremba, the extrinsic fraud consisted of false and fraudulent statements made in procuring the probate of the ‍‌‌‌‌​‌‌​‌​​‌​​​​‌‌‌​​​‌‌‌‌​​​​‌​​​​‌​‌​​​​‌‌‌‌‌​‍will on account of which the heir did not receive notice of the probate proceedings in time to file a caveat. In Purinton, the extrinsic fraud consisted of the intentional failure of the propоnent and executor of the de *205 cedent’s will to disclose to the probate court the existence, known to him, of a pretermitted heir and to give notice to such heir of the probate proceedings. In Seeds, the extrinsic fraud consisted of false and fraudulent statements in procuring the probate and of a false return purporting tо show service of notice on the next of kin. In Jacobsen, the extrinsic fraud consisted of false and fraudulent representations whereby the defendants obtained from the next of kin certain waivers and by means thereof procured the probate of the will. For other decisions, see Annotation, “Person taking under probate of forged or fraudulent will as trustee ex maleficio,” 52 A.L.R. 779 et seq.

A judgment can be attacked for extrinsic fraud only by independent action. An attack for intrinsic fraud must be by motion in the cause in which the judgment was rendered. 3 Strong, N. C. Index, Judgments § 24. In Mottu v. Davis, 153 N.C. 160, 69 S.E. 63, Walker, J., after observing that “perjury, being intrinsic fraud, is not ground for equitable relief against a judgment resulting from it,” states that “the fraud which warrants equity in interfering with such a solemn thing as a judgment must be such as is practiced in obtaining the judgment, and which prevents the losing party from having an adversary trial of the issue.” In Miller v. Bank, 234 N.C. 309, 67 S.E. 2d 362, in which there is a full discussion and references to numerous prior dеcisions, Devin, C.J., quotes the following statement from Freeman on Judgments, sec. 1233: “Extrinsic or collateral fraud operates not upon matters pertaining ‍‌‌‌‌​‌‌​‌​​‌​​​​‌‌‌​​​‌‌‌‌​​​​‌​​​​‌​‌​​​​‌‌‌‌‌​‍to the judgment itself but relаtes to the manner in which it is procured.” See “Comment Note. — Criterion of extrinsic fraud as distinguished from intrinsic fraud, as regards relief from judgment on ground of fraud,” 88 A.L.R. 1201.

The complaint contаins no allegation that fraud of any kind was practiced directly upon plaintiff by her brother or his wife or by any of the defendants herein, either before or after the deаth of plaintiff’s parents, or that any of them practiced any fraud on the plaintiff or on the probate court in connection with the probate of her parеnts’ will. She alleges no fact tending to show her right to attack the will by caveat was interfered with in any manner by her brother or his wife or by any other person or circumstance. In short, plaintiff alleges no facts constituting extrinsic fraud as distinguished from intrinsic fraud.

Having reached the conclusion that plaintiff has failed to allege facts sufficient to constitute a cause of action, the judgment of the court below is affirmed.

Affirmed.