CLARKSON, J., dissenting.

On or about the 15th day of October, 1934, H. A. Smith died, leaving a last will and testament, in which he left a legacy of a $35,000.00 note to James F. Brawley, a stranger in blood to the testator. The will was duly probated in common form, and thereafter, the defendants, heirs at law and distributees of the estate of H. A. Smith, who would be entitled to the estate had Smith died intestate, filed a caveat to the will. The plaintiffs, who also would have been entitled as distributees under the statute in the same manner and form as the defendants, were cited under C. S., 4158 as interested persons.

The defendants (objectors and caveators) communicated with the plaintiffs in the case at bar and were notified by them that they had decided to have nothing to do with the contest of the will — "We have decided not to join in this litigation or caveat."

The plaintiffs contributed nothing, financially or otherwise, to the proceeding by which the will was contested. They were never required, under C. S., 4159, to take sides, and remained aloof. Subsequently, the legatee opened communication with these defendants and a compromise was effected between them, according to which the legatee paid the defendants $15,000.00 in consideration of their withdrawal from the contest. The plaintiffs did not participate in this agreement.

Thereupon, the proceeding, which under the statute took the form of a probate of the will in solemn form, was continued, and issue of devisavit vel non was submitted to the jury, and answered in favor of the will, and judgment was entered accordingly.

After this proceeding had terminated, the plaintiffs, conceiving that since they constituted one-third of the heirs at law or distributees of the estate of H. A. Smith under the statutes of descent and distribution, they were entitled to share, brought suit against the defendants to recover $5,000.00, or one-third of the proceeds of the compromise. Trial by a jury was waived by the parties to the controversy. The facts were agreed upon and found by the judge substantially as above related, and, thereupon, the judge concluded, as a matter of law, that the plaintiffs were entitled to one-third of the proceeds of the compromise and rendered judgment in favor of the plaintiffs for recovery thereof. From this judgment the defendants appealed.

SEAWELL, J.

We think the conclusions of law reached by the trial court are not warranted by the facts. These conclusions, with the reasoning by which they were apparently reached, are two: First, that because there was objection to the will by some of the heirs at law of H. A. Smith, and the plaintiffs are also heirs at law, and a compromise was made removing the objections, and the will was thereafter probated in solemn form and was sustained by a verdict of the jury and the judgment of the court cutting off all further objections, they are, by reason of these facts, entitled to a proportionate share of the money paid for the "cease and desist" agreement made by the caveators; second, that, being fully entitled thereto, they are not guilty of any conduct which would estop them from enforcing that right.

We are not concerned with the second conclusion, since the burden was not on the defendants to show estoppel until the plaintiffs had established the right; and this they have not done. It is to be noted that plaintiffs base this right, not on any actual contract or agreement with the defendants, express or implied, since, admittedly, the facts do not warrant such a claim, but on the mere operation of law. It assumes either that the compromise money was a part of decedent's estate or that, at least, the consent of plaintiffs was necessary to the final determination of the contest over the will, since they are also "heirs at law" and cited in the proceeding; and in either event we come back under the shadow of descent and distribution.

We think these conclusions are based on an erroneous conception of the nature of the original proceeding under which, after caveat, the will was probated in solemn form, and of the relation of the parties concerned to that proceeding, to the legatee and propounder, and to each other. Since there is no evidence of an actual participation by the plaintiffs in the compromise or contract between these defendants and Brawley, the legatee, the trial court was evidently under the impression that consent of all the persons who might have been interested in the estate was necessary to the establishment of the will once objection thereto had been made by caveat, and that any compromise effected must necessarily include all such persons; and that, therefore, the compromise must, as a matter of law, be regarded to have been made for them all alike. Indeed, the principal case cited by plaintiffs in support of their contention, In re Seip's Estate, 162 Pa. 423, 30 A. 226, is so interpreted by plaintiffs' counsel.

In some jurisdictions the courts are permitted, either by virtue of statutes enacted for that purpose or by long practice of the court, to deal with the estates of decedents in practical disregard of the will when all the parties interested are before the court and are sui juris. Callaghan v. Corbin, 255 N.Y. 401, 175 N.E. 109, 81 A.L.R., note 1187 (see page 1190). The laws of Pennsylvania are liberal in this regard. It scarcely needs the authorities which we hereafter cite to remind the practitioner that such is not the case here.

It is claimed that the case at bar is one of first impression by our court. However this may be, we think the matter solvable by the application of simple principles, long recognized here and abundantly established by judicial opinion.

The right of any caveator or objector to make his separate treaty of peace with legatees or propounders upon such terms as may be agreed upon is uniformly recognized, as will appear from citations of authority elsewhere in this opinion. The reason becomes clear when we examine and properly understand the proceeding provided by our laws for the contest of wills and their probate in solemn form.

In this State it takes only one interested person to caveat a will. C. S., 4158; In re Thompson, 178 N.C. 540, 542, 101 S.E. 107; Armstrong v. Baker, 31 N.C. 109, 114. It becomes the duty of the clerk thereupon to bring in interested persons, C. S., 4159; and, in some instances, it is conceivable that it might be incumbent upon the caveator to see that this duty is performed. When they come in they may align themselves as they will. They are cited only to "see proceedings" and not as parties. Redmond v. Collins, 15 N.C. 430; Mills v. Mills, 195 N.C. 595. It is the caveator's quarrel until some person interested joins him in the fight; and even then there is nothing in the law to prevent a litigant from making a separate and individual contract to desist from further opposition. There is no law compelling other heirs at law to join him in the fight or prevent their joining his adversaries, or to compel them to abandon their position on top of the fence. As a matter of common occurrence, since usually at least some of those who would be in the line of descent and distribution are beneficiaries under the will, we find a goodly number fighting with the propounders; others may "run with the hounds and hold with the hare," and others may, as did the plaintiffs in this case, stand aloof, or give positive notice to the objectors that they will not join in an attack on the will.

Caveat is, therefore, not a proceeding brought in the interest of the heirs at law as a class. In many instances they would be embarrassed in financial interest and in others in good conscience at the breaking of the will. There is no plane of cleavage in interest that would justify a legal presumption that the heirs at law are making a common fight, and the statute does not contemplate it. Hutson v. Sawyer, 104 N.C. 1, 10 S.E. 85, and cases cited; St. John's Lodge v. Callender, 26 N.C. 335; Sawyer v. Dozier, 27 N.C. 97; Syme v. Broughton, 85 N.C. 367; In re Will of Brown, 194 N.C. 583, 140 S.E. 192. The fact that the proceeding is in rem argues against any solidarity of attack, since the question is whether the paper writing presented is the last will and testament of the decedent. If it is not, it cannot be made so by common consent. Holt v. Ziglar, 159 N.C. 272, 74 S.E. 813; Syme v. Broughton, supra. The law does not regard the will as a thing to be sustained sub modo only after something has been sweated out of it for the heirs at law. Mental capacity and duress are conditions which cannot be altered nunc pro tunc by mere agreement of the parties on an issue of devisavit vel non. When attention has been drawn to these principles, so firmly planted in our law, it should be clear that any compromise must be dehors the proceeding and does not necessarily inure to the benefit of the "heirs at law," or, more properly speaking, in this case, distributees. Where the will is set aside, of course, the laws of distribution and inheritance apply; not because the will is vacated, but because there never was a will. In that event, no person entitled through those laws is estopped because of any want of cooperation in the proceeding, or by any act which does not convey his interest in the inherited property.

While the solemn probate of a will upon the issue of devisavit vel non concludes all heirs and distributees who have been cited, or who have knowledge of the proceeding, with respect to the property conveyed in the will, Mills v. Mills, supra, they have not been deprived of any right by the action of the withdrawing caveators, but only by their own failure to urge it or assert it when opportunity was presented. If the will stands, it must be regarded as valid ab initio, and they had no rights to be forestalled or concluded.

This State does not recognize the doctrine of partial renunciation whereby the estate may pass in part by the will and the renounced portion by descent.

It must be conceded that if the title to the money paid in compromise depends upon the contract, it cannot be diverted from those who made that contract by virtue of any power in the laws of descent and distribution, or upon the theory that the contract, to be successful in its purpose, must have been made by them all.

As stated, in some states, when all the parties are sui juris and before the Court, jurisdiction is given by statute to settle the controversy in terms which ignore the will, or, rather, under these statutes a compromise of the estate itself may be effected as if only the property rights in the estate were involved. (New York has such a statute in section 19 of the Decedent Estate Law.) The courts of some states have gone further and recognize such a jurisdiction, based on the inherent powers of the court. Neither is true in North Carolina, where the courts still decline to "make a will" for the decedent, agreeable to the desire of the parties interested; In re Will of Westfeldt, 188 N.C. 702, 125 S.E. 531; unless the doctrine of family settlement applies, when the jurisdiction is somewhat extended; In re Will of McLelland, 207 N.C. 375, 376, 177 S.E. 19. In such cases settlements appeasing family difficulties and promoting harmonious relations have been upheld as within the jurisdiction of the court. Reynolds v. Reynolds, 208 N.C. 578, 622, 182 S.E. 341. And it has even been suggested that the family honor may be a consideration to intrigue the jurisdiction. Price v. Price, 133 N.C. 494, 504, 41 S.E. 885; Bohannon v. Trotman, 214 N.C. 706. None of these considerations were presented or could be presented to the court in the original proceeding, since the legatee is a stranger in blood.

In English v. Crenshaw, 120 Tenn. 531, 110 S.W. 210, certain collateral heirs contested a will which left all the property of the testator to the widow. A compromise was effected and it was held that the compromise money passed by virtue of the contract between the parties and not as a part of the estate.

In Fidelity C. Trust Company v. Commonwealth of Kentucky, 78 A.L.R., 710, it is said: "Whilst the legatees could not receive the property under the will until it was duly established, neither could the heirs inherit the property unless the will was set aside." And speaking of the caveator: "While his right to maintain the contest of the will is derived from his relationship to the testator, his title to the money came from the contract with the legatees."

In Callaghan v. Corbin, 255 N.Y. 401, 175 N.E. 109, where the legatee or devisee agreed with certain of the heirs at law to pay them to induce others to withdraw objections to the will, and the question of public policy became involved, the court expressed its conclusions as to the rights and relations of the compromising parties amongst themselves, so strongly expressive of the view we take, we are tempted to quote: "So far the defendant has succeeded on the plea that this contract or agreement was illegal as against public policy and good morals . . . the idea being that it is illegal for one, acting for others on a matter of common interest, to secure to himself any profit or advantage over his associates by a secret undisclosed agreement or understanding. We are unable to see the illegality of this contract. Under the will offered for probate the widow had a life interest and the brothers and sisters remainders as next of kin . . . The latter filed objections to the will. The fact that they all filed objections is a mere incident. They were not obliged to act together and their interests were solely individual. There is no law which prevented the widow from giving any one of them a sum of money to withdraw his or her objection, and there is no law which required them to act as a class, or with equality. One could have withdrawn his objections to the probate, on the payment of money; and the rest could have continued the contest or settled the suit themselves." In this opinion, Cardozo, C. J., Pound, Kellogg, O'Brien, and Hubbs, JJ., concurred. See also Schoonmaker v. Gray, 208 N.Y. 209, 101 N.E. 886.

In Grochowski v. Grochowski (Neb.App.), 109 N.W. 742, in a similar situation, it is said: "The rights of no persons other than the contracting parties were affected nor would the settlement affect the due administration of justice. There is no evidence of a connivance to defeat or defraud the insane sister of any of her rights. She was not a necessary party to the agreement and we find no reason for discharging the decree . . ." See Seaman v. Coley, 178 Mass. 478, 59 N.E. 1077. In this case the question of secrecy maintained in the negotiations between propounders and caveators was presented as it is here, and as to that the Court said: "If the matter had been known to everyone it would be absurd to say that the plaintiff was not free to consult his own interest in opposing or withdrawing opposition to the codicil as well for money as without it." Citing Leach v. Fobes, 11 Gray, 506, 71 Am. Dec., 732; St. Mark's Church v. Teed, 120 N.Y. 583, 24 N.E. 1014.

Quoting from People v. Kaiser, supra: "The share of the estate passing to the heirs by virtue of the agreement did not pass by virtue of the statute of descent or by virtue of the will, but under the agreement." See Baxter v. Treasurer and Receiver-General, 209 Mass. 459, 95 N.E. 854; Matter of Cooke's Estate, 187 N.Y. 253, 79 N.E. 991; Estate of Graves, 242 Ill. 212, 89 N.E. 978. Analyzing the decisions in these cases, the opinion in Fidelity C. Trust Co. v. Com., supra, states they hold: "That the compromise of a will contest under which money is paid to a contestant is a matter of contract, and the tax is imposed upon the amount devised by will or received by inheritance, and not upon money collected by virtue of a contract among living persons."

We think the law of this case is aptly expressed by the Court in Janess v. Ambler, 62 N. H., 569: "There is no equity in the plaintiff's claim; she declined to join in the appeal, or in the agreement; she opposed both, and she paid no part of the expenses. If the appeal prevailed, she would be entitled to her full distributive share, much larger than her devise. If it failed, she would still receive all that was given her by the will, and in neither event was chargeable with any part of the expenses. Negotiations under the written agreement might be attended with large costs, and whatever the result she was liable for no part of them. It would be inequitable to permit her to enjoy the benefits of proceedings in which she had opportunity but refused to join, and for the charges of which she was not responsible."

It is strongly urged that the equitable jurisdiction of this Court is involved upon the apparent assumption that the distribution demanded by the plaintiffs is required, according to the statutes of descent and distribution; In re Seip, supra. We think the case comes under the law of contract, but whether resting in law or equity, we see no difference between the two in terms of equality and justice.

Perhaps jurisprudence might be richer if we could forget the fictional build-up of repugnance between law and equity which now and then tries to suffuse the law with the pink of shame; if we ceased to regard equity as a beneficent jus superior which, on occasion, throws delinquent law out of the temple and installs a new god. Since, in this State, both law and equity are administered in the same action and in the same court, the historical distinction might be reduced to the function of enlightenment, and thus become absorbed in the law. Equity is merely the tool by which the law is enabled more perfectly to trace the finer lines in the pattern of justice. It is neither altruistic nor prodigal, simply just. We do not feel inclined to impose upon the defendants in this case a generosity which these principles, which are after all but an adjustment of individual right to commendable human conduct, do not seem to require.

On the barren outer banks of Eastern North Carolina, the race of "banks ponies" has survived for two hundred years against the forces of nature with little or no help from man. Their tenacity of existence is heroic. They foal their kind upon the stark bosom of nature with a faith that reminds one of Sidney Lanier's "The Marshes of Glynn:"

"As the marsh-hen secretly builds on the watery sod, I will build me a nest on the greatness of God."

These little animals have learned many tricks of survival. It is said that when they are thirsty they gather in groups of three or four and dig until the water filters through in sufficient quantity. If a pony who has not assisted in their labors comes up for a free drink, they turn their heels upon him and drive him away. This is equity on Ocracoke.

Defendants in this case can derive their right to the funds in controversy through a contract, in which the plaintiffs had no part. Counsel whose name appear on the pleadings and judgment do not purport to represent the plaintiffs; the caveators were not either actually or impliedly their agents; and they had directly repudiated the whole proceeding in the positive statement: "After due consideration, we have decided not to join in the litigation or caveat." They are not legally entitled to share the proceeds of the contract.

The judgment is

Reversed.