#### G. L. ROBERSON and Wife REVA B. ROBERSON, HOLLIS ROBERSON and Wife EDITH S. ROBERSON, MARY R. BYRD and Husband BRYAN BYRD, LUTHER ROBERSON and Wife DAISY W. ROBERSON, and JOE ROBERSON and Wife BILLIE ROBERSON, and HUGH ROBERSON, Executor of the Last Will and Testament of GERTRUDE ROBERSON PENLAND, Deceased v. MACKEY O. PENLAND.

(Filed 20 November 1963.)

1. Cancellation and Rescission of Instruments § 4; Judgments § 35—

The fact' that an agreement between, the widower and beneficiaries in regard to 'the settlement of am estate and the deed and -the consent judgment effectuating the agreement are made in reliance upon .the statute giving the husband 'the right to dissent from the will of his wife, *held*not ground for the cancellation of the consent judgment and deed sequent to the declaration by the court of the uneomstitutianality of the statute, the agreement having been made by parties *sui juris*dealing ah arms length and who were represented by competent counsel, and there being no suggestion of fraud.

3. Statutes § 4—

The legal principle that am unconstitutional statute is a complete nullity and cannot justify any acts under it, must be construed with respect to the particular factual situation, and while a party may not assert a right arising out of a statute which has .been declared unconstitutional, the principle does not strike down all undertakings made in reliance upon such statute.

Appeal by plaintiffs from *Martin, S.J.,*March, 1963 Special Non-jury Session, BuNCombe Superior Court.

The plaintiffs brought this civil action demanding judgment:

*“1.*That the paper writing purporting to be the deed dated the 16th day of February, 1962, and recorded in the Office of the Register of Deeds of Buncombe County, North Carolina, in Deed Book 859, page 349, be declared null and void and of mo force and effect, and be stricken from the records of the Register of Deeds of Buncombe County, North Carolina.

*“2.*That the entire paper writing purporting to -be a contract between these plaintiffs .and the defendant arising out of the defendant’s purported dissent to the will of Gertrude Roberson Pen-land be declared null, void 'and of no force .and effect.

“3. That the constitutional rights of the deceased, Gertrude Roberson Penland, bo fully protected and enforced *and that the Executor thereof be directed to execute her said last wild and testament fully in accordance with the same, and in accordance with *503said Constitution and the valid laws -of the State, as fully and ■completely as if no acts or things had been done in conflict therewith.

“4. That all parties be restored to the same position and status to which they are entitled ;by virtue of all valid existing laws of the State of North Carolina.”

As the sole basis for .the relief demanded, the plaintiffs alleged they executed the deed and 'entered into the consent judgment giving the defendant a large .share in his wife’s estate because of their mistaken belief the defendant bad the legal right to dissent from the will.

Attached to the 'complaint was the will of Gertrude Roberson Pen-land, dated August 20, 1960. The will provided:

“(a) I give, devise and bequeath unto my husband, Mack Pen-land, the sum of TWO THOUSAND DOLLARS, in fee simple forever.

“(b) That after the payment of the costs of administration, all the balance of the proceeds of said sale -of said property, together with any other property that I may own or possess shall be divided into five (5) equal shares or parts, and one part thereof paid to the following named persons: One part to my sister, Mary Roberson Byrd; One part to* my brother, Ged Roberson; One part to my brother, Luther Roberson; One .part to my brother, Hollis Roberson; and one part to my nephew, Joe Roberson, in fee simple forever.”

On the 25th day o.f August, 1961, the defendant filed a dissent to his wife’s will, giving notice of 'his election not to. take under the will but to demand his share of his wife’s property as if she had died intestate. The dissent wias drafted in 'conformity with G.S., Chapter 30. Subsequent to the filing of the dissent, the parties personally and through counsel carried on extensive negotiations looking to a settlement of their respective rights in the estate. The negotiations culminated in an agreement fixing the rights of the several devisees and legatees under the will. The consent judgment and the deed implemented the (agreement. Both are here under 'attack upon the ground the parties acted under the mistaken belief a husband, by dissent, became entitled to share as .in case of his wife’s intestacy.

Judge Martin, of the Superior Court, by consent, found facts which are not in dispute, and concluded:

“1. That the consent judgment signed and executed by the parties and by the Clerk of the Superior Court, together with the *504warranty deed, signed and executed by the plaintiffs and delivered to toe defendant, and by him duly recorded in the Office of toe Register of Deeds, constitute a valid and -binding obligation and transaction between toe plaintiffs and toe -defendant and that all of toe obligations set forth therein have been fully complied wito, wito toe exception -of toe final division of toe money of said estate by toe executor as set forth and agreed upon.

“2. That toe executor Hugh Roberson malee a division of toe moneys belonging to said estate in accordance wito toe provisions of said consent judgment and pay the respective parts thereof to toe respective parties entitled thereto.”

The plaintiffs excepted and appealed.

*Williams, Williams and Morris by Robert R. Williams, Jr., for plaintiff appellants.*

*Don C. Young and W. W. Candler for defendant appellee.*

HiggiNS, J.

The plaintiffs seek to 'have toe Oourt rescind toe deed and the -consent judgment by which toe parties settled their respective claims in the property -owned by Mrs. Gertrude Roberson Penland who died without lineal descendants on August 14, 1961. The defendant was -toe husband of toe testatrix. By (a) -of Item 2 of the will he was given ia legacy of $2,000.00. The remainder -of toe not inconsiderable estate w-a,s devised to toe plaintiffs -as shown by (b) of Item 2.

After toe probate of toe will the defendant filed -a dissent. Thereafter long negotiations -consisting of proposals and counter-proposals between toe parties and their counsel followed. All assumed toe husband had -a legal right to- dissent from toe will. The negotiations for a settlement -culminated in toe consent judgment which specified what properties toe defendant -should receive and that the remainder should go to toe plaintiffs who implemented toe settlement by executing a warranty deed. The defendant in the consent judgment released all further claim in his wife’s estate, including the $2,000.00 bequest.

Plow ever, subsequent to toe settlement -as sat forth in the judgment -and deed, this Oo-ur-t, in *Dudley v. Staton,*257 N.C. 572, 126 S.E. 2d 590, held unconstitutional toe Legislative Act permitting -a husband to dissent from -his wife’s will. The consent judgment bad -already been signed and approved by toe court. The warranty deed had been executed, -delivered, .and recorded. At the time -of toe settlement all interested parties were *sui juris.*They were represented by eminent -counsel. They were -dealing at arm’s length upon a lawful subject. There is no sug-*505gestión of -any unfair advantage. True, all parties made -the agreement in the mistaken belief the husband, by hi® dissent, became entitled to share in his wife’s estate as if she bad died intestate. The Legislature bad so provided. The provision .carried a presumption of its coustitu-■tionality. With this presumption on the pant of counsel, all parties entered into the settlement of the estate and completed the settlement 'by judgment and deed. May these be canceled by the court upon a showing the attorneys did not anticipate this Court would hold unconstitutional the provision, that a husband may dissent from his wife’s will? The question presented goes deeper than a mistake of law on the part of attorneys. Solemn documents fixing property rights 'are involved. These documents were executed in the exact form which the parties intended. On this subject, Justice Pearson used this language: “But however this may be, the plaintiff by her assent to. the legacy vested the legal title in the defendant; and the question is, does the bill disclose any .ground upon wlhich she can ask this Court to> undo what she has done, so ais to relieve her from the legal effect of her assent? * * * It is settled that mere ignorance of law, unless there .be some fraud .or circumvention, -is not a ground for relief in equity whereby to set aside conveyances or avoid the legal effect of acts which have been done.” *Foulkes v. Foulkes,*55 N.C. 260.

The plaintiffs rely for a reversal upon a long line of cases, some by this Court, bolding that an unconstitutional statute is a nullity *ab initio,*confers no rights, imposes no obligations, bestows no power, and justifies no acts performed under it. *Board of Managers v. Wilmington,*237 N.C. 179, 74 S.E. 2d 749; *Norton v. Shelby County,*118 U.S. 425; Cooley, Constitutional Limitations, 8th Ed., (1927) p. 382.

The *Norton*case was decided in 1886. Its sweeping .statements 'have .been narrowed by later decisions. In *Chicot County Drainage District v. Baxter State Bank,*308 U.S. 371, the Court said: “It is quite clear, however, that such broad statements as to the effect of a determination of uniconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such determination, iis an -operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by >a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects, with respect to particular relations. . . . it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.”

In *McLean Coal Co. v. Pittsburgh Terminal Coal Co.,*238 Pa. 250, 195 A. 4, the Court held: “The uneonistitutionality of a statute is a *506'defense to an -action only when, the liability is created by the statute in question; the invalidity of an act is of no av-ail when the liability -arise-s ■from acts indicating the assumption of liability by parties who -may, it is -true, be acting only because the statute was passed, b-ut who- are, nevertheless, voluntarily assuming a relationship which creates a liability.” See also, 49 Yale Law Journal, 959.

In this ease the ¡rights of the parties are fixed by solemn warranty dead and consent judgment. These may not -be set aside m-e-rely because eminent lawyers were unable to -anticipate that this Court would strike down the Act -of the General Assembly w-liic'h permitted the dissent. The rights of -the parties are fixed by the judgment and the deed. These documents provide road blocks which the Court -may not -remove merely because the -parties were mistaken- as to one or m-ore o-f the factual considerations which induced them.

The judgment of the Superior Court of Buncombe County is

Affirmed.