In Re Covington's

114 S.E.2d 257 (1960)

252 N.C. 546

Matter of the WILL of Leake S. COVINGTON, Deceased.

No. 456.

Supreme Court of North Carolina.

May 18, 1960.

*259 Leath & Blount, Rockingham, and Blakeney, Alexander & Machen, Charlotte, for appellants.

Webb & Lee, Bynum & Bynum, Rockingham, and Robinson, Jones & Hewson, Charlotte, for appellee.

RODMAN, Justice.

Courts of equity, to prevent injustice to one who relies on the spoken word or act of another, fashioned a rule of conduct called estoppel in pais. The rule prohibits or estops the speaker or actor from controverting what he had previously asserted. Lord Coke said: "It is called an estoppel or conclusion, because a man's own act or acceptance stoppeth or closeth up his mouth to allege or plead the truth."

Adams, J., said: "Equitable estoppel in pais owes its origin and development to the notion of justice promulgated by courts of chancery. It embraces estoppel by conduct which rests upon the necessity of compelling the observance of good faith." Thomas v. Conyers, 198 N.C. 229, 151 S.E. 270, 273.

"The doctrine of equitable estoppel is based on an application of the golden rule to the everyday affairs of men." Stacy, C. *260 J., in McNeely v. Walters, 211 N.C. 112, 189 S.E. 114, 115.

The rule has been given recognition and applied in a multitude of cases by this Court. The facts which must be established by the party claiming protection by the rule have likewise been summarized in a multitude of cases. Johnson, J., said in Hawkins v. M. & J. Finance Corp., 238 N.C. 174, 77 S.E.2d 669, 672: "* * * in determining whether the doctrine of estoppel applies in any given situation, the conduct of both parties must be weighed in the balances of equity and the party claiming the estoppel no less than the party sought to be estopped must conform to fixed standards of equity. As to these, the essential elements of an equitable estoppel as related to the party estopped are: (1) Conduct which amounts to a false representation or concealment of material facts, or at least, which is reasonably calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party afterwards attempts to assert; (2) intention or expectation that such conduct shall be acted upon by the other party, or conduct which at least is calculated to induce a reasonably prudent person to believe such conduct was intended or expected to be relied and acted upon; (3) knowledge, actual or constructive, of the real facts. As related to the party claiming the estoppel, they are: (1) lack of knowledge and the means of knowledge of the truth as to the facts in question; (2) reliance upon the conduct of the party sought to be estopped; and (3) action based thereon of such a character as to change his position prejudicially." Peek v. Wachovia Bank & Trust Co., 242 N.C. 1, 86 S.E.2d 745; Barrow v. Barrow, 220 N.C. 70, 16 S.E.2d 460; North Carolina Self Help Corp. v. Brinkley, 215 N.C. 615, 2 S.E.2d 889; Upton & Co. v. Ferebee, 178 N.C. 194, 100 S.E. 310; Boddie v. Bond, 154 N.C. 359, 70 S.E. 824; Holmes v. Crowell, 73 N.C. 613.

The record establishes prima facie these facts: Caveator, a few days after the death of his brother, found in deceased's lock box an instrument dated 20 March 1940 admittedly signed by deceased and purporting to be his last will and testament. This paper named caveator as its executor. He had no knowledge of any later will. Assuming its validity he properly offered it for probate and qualified as the executor. Several months after this probate and qualification caveator was informed by one who witnessed it that his brother had executed a will later than 1940. Search was made and the paper writing so witnessed dated 8 September 1953 was discovered among some papers which had been at the home of deceased. This paper was found 17 April 1959, a little more than fourteen months after the discovery of the first paper. On 21 May it was delivered to the clerk of the court.

When the last writing was discovered, caveator had a duty to perform. The Legislature, when it granted the right to dispose of property at death, provided for the enforcement of that right. G.S. § 31-15. It became the legal duty of caveator to deliver to the court what purported to be the last will and testament of Leake S. Covington. A fraudulent concealment of this paper would constitute a violation of our criminal laws. G.S. § 14-77. Caveator asserts that he acted with reasonable diligence in the performance of his duty when he delivered the two instruments to the court for probate in accordance with the desires of Leake S. Covington as expressed first on 20 March 1940 and later 8 September 1953. Without knowledge or intimation that there was a later will, caveator acted properly when he qualified as executor of the instrument dated 20 March 1940. That qualification does not now estop him as a matter of law from asserting the invalidity of that will because of its subsequent revocation.

Knowledge or reckless indifference to the truth is necessary to invoke the doctrine of estoppel. The absence of that element distinguishes In re Will of Averett, *261 206 N.C. 234, 173 S.E. 621; In re Lloyd's Will, 161 N.C. 557, 77 S.E. 955, and the other cases relied upon by movants from this case. Cf. McClure v. Wade, 34 Tenn.App. 154, 235 S.W.2d 835, 28 A.L.R. 2d 104; In re Bremer's Estate, 141 Neb. 251, 3 N.W.2d 411.

The record does not show that caveator as executor took any action after the discovery of the will which was prejudicial to movants or to the estate of Leake S. Covington. He asserts that he acted with reasonable diligence when he acquired knowledge. He called the court's attention to the conflict and his incapacity to serve as executor of both paper writings.

We conclude that Judge Armstrong was correct in ordering: "that all issues made by the caveat and other pleadings herein, including any issue of estoppel, if any is properly raised, be tried at term before a judge and jury, reserving to the trial judge the determination of what issue should be submitted to the jury."

Affirmed.