
155 S.E.2d 495 (1967)
271 N.C. 106
Eleanor B. O'NEIL, Fraser Knight O'Neil, and the Citizens Bank and Trust Company of Southern Pines, Executor and Trustee under the Will of John C. Barron, Deceased
v.
Michelle O'NEIL, Molly O'Neil and Michael O'Neil, Minors and the Unborn Issue of Eleanor B. O'Neil.
No. 536.
Supreme Court of North Carolina.
July 24, 1967.
*499 Boyette & Brogden, Carthage, and Hoyle & Hoyle, Sanford, for plaintiff appellees Eleanor B. O'Neil and Fraser Knight O'Neil.
Leath, Bynum, Blount & Hinson, Rockingham, for plaintiff appellee The Citizens Bank and Trust Company of Southern Pines.
William D. Sabiston, Jr., Carthage, for defendant appellant P. H. Wilson, Guardian Ad Litem.
BOBBITT, Justice.
There are material limitations upon the right to alter the terms of a testamentary trust by a family settlement agreement. Carter v. Kempton, 233 N.C. 1, 62 S.E.2d 713; Redwine v. Clodfelter, 226 N.C. 366, 38 S.E.2d 203; Wachovia Bank & Trust Co. v. Buchan, 256 N.C. 142, 123 S.E.2d 489; Stellings v. Autry, 257 N.C. 303, 126 S.E.2d 140.
Simply stated, plaintiffs propose a substantial modification of the disopsitive provisions of the "Will."
A will is not an instrument "to be amended or revoked at the instance of devisees who are merely dissatisfied with its provisions." Denny, J. (later C. J.), in Wagner v. Honbaier, 248 N.C. 363, 369, 103 S.E.2d 474, 478. "It is not the province of the courts to substitute their judgment or the wishes of the beneficiaries for the judgment and wishes of the testator." Barnhill, J. (later C. J.), in Carter v. Kempton, supra.
"Family agreements looking to the advantageous settlement of estates or to the adjustment of family differences, disputes or controversies, when approved by the court, are valid and binding. They are bottomed on a sound public policy which seeks to preserve estates and to promote and encourage family accord." Fish v. Hanson, 223 N.C. 143, 25 S.E.2d 461, and cases cited. When fairly made they are favorites of the law. Tise v. Hicks, 191 N.C. 609, 132 S.E. 560. However, "(t)he rule that the law looks with favor upon family agreements does not prevail if the rights of infants are unfavorably affected." Wagner v. Honbaier, supra; In re Reynolds, 206 N.C. 276, 173 S.E. 789.
The provisions of a will or testamentary trust may be modified by a family settlement agreement only where there exists some exigency or emergency not contemplated by the testator. Rice v. Wachovia Bank & Trust Co., 232 N.C. 222, 59 S. E.2d 803; Redwine v. Clodfelter, supra. Here, the alleged unforeseen exigency or emergency is the filing of the caveat with resulting expensive litigation and drastic and adverse effects upon defendants in the event the "Will" should not be established. Nothing in the record suggests controversies presently exist between Eleanor B. *500 O'Neil and defendants or any present lack of family accord.
The question for decision is whether the record before us is sufficient to support the court's finding that "(t)here is a bona fide controversy regarding the validity of the paper writing dated October 7, 1964, purporting to be the last will and testament of John C. Barron." If not, the judgment must be vacated and the cause remanded.
The mere fact that a caveat has been filed, standing alone, is not sufficient ground for modification of the dispositive provisions of the will. The outcome of the litigation must be in doubt to such extent that it is advisable for persons affected to accept the proposed modifications rather than run the risk of the more serious consequences that would result from an adverse verdict.
Nothing in the record indicates evidence was offered when the case was submitted to Judge McConnell. The judgment seems to be based solely upon admissions and stipulations. Hence, its binding effect, if any, upon defendants, is predicated upon the agreements and consent of their guardian ad litem.
"It is well settled in this jurisdiction, at least, that in the case of infant parties, the next friend, guardian ad litem, or guardian cannot consent to a judgment against the infant, without an investigation and approval by the court." Butler v. Winston, 223 N.C. 421, 27 S.E.2d 124. As stated by Parker, J. (now C. J.), in Wachovia Bank & Trust Co. v. Buchan, supra: "The superior court of North Carolina in its equity jurisdiction has inherent authority over the property of infants, since it stands in loco parentis, and has the same jurisdiction in this respect as that of the English High Courts of Chancery. Coxe v. Charles Stores Co., 215 N.C. 380, 1 S.E.2d 848, 121 A.L.R. 959."
Plaintiffs alleged Eleanor B. O'Neil was examined adversely before a commissioner, on motion of the Bank, in the caveat proceeding. They alleged she testified, when so examined, "that her father, John C. Barron, was confused in the last year of his life about many things; that at times he did not recognize old friends; that he was uncertain as to the nature and extent of his property; that he frequently, prior thereto, stated that he felt that substantial sums of money should not be inherited by children at the age of twenty-one, and that children should not receive the unrestricted use of substantial sums of money until they were more mature, and preferably in three separate distributions at ages twenty-five, thirty, and thirty-five." Plaintiffs alleged "that Eleanor B. O'Neil contends that her sworn testimony tends to show generally that during most of the last year of his life John C. Barron lacked the capacity to understand the nature of his act and the nature and extent of his property."
Plaintiffs alleged that "the position of the Bank is, and continues to be, that the paper writing dated October 7, 1964, was drafted by an experienced and competent attorney; that it was executed by John C. Barron at a time when he was completely lucid and at a time when he had a clear understanding of the nature of his act and the nature and value of his property and the manner in which he desired to dispose of his property; that it was properly executed by John C. Barron; and that it is in all respects a valid testamentary disposition of all the property and estate of John C. Barron."
It does not appear that a transcript of said adverse examination of Eleanor B. O'Neil was submitted to Judge McConnell. Certainly, it is not in the record presented to this Court. Moreover, neither the Bank nor the guardian ad litem offered evidence as to whether the "Will" constitutes a valid testamentary disposition by John C. Barron of his property and estate.
The provisions of the "Will" indicate clearly it was drawn carefully by a competent and skillful draftsman. The signature *501 of John C. Barron appears on the last (sixth) page and on the left-hand margin of each of the five preceding pages. Three witnesses attested its execution by John C. Barron. The record discloses no information as to the circumstances under which the "Will" was drafted. Nor does the record indicate what inquiries, if any, have been made to determine what testimony the draftsman and the witnesses would give relevant to what occurred prior to and at the time of the execution of the "Will."
In the present case there is no evidence, either by testimony or affidavit, that John C. Barron did not have mental capacity sufficient to make and execute a valid will on October 7, 1964. The nearest approach to evidence to this effect is the allegation in the complaint that Eleanor B. O'Neil had testified in a different case in the general manner set forth above. In this connection, compare Redwine v. Clodfelter, supra, and Wagner v. Honbaier, supra.
Plaintiffs alleged they entered into the agreement "expressly subject to approval by the Supreme Court of North Carolina." We are constrained to hold the record submitted does not contain evidence sufficient to support the crucial factual findings upon which the validity of the "family settlement agreement" depends.
We do not hold there is no bona fide controversy as to the validity of the "Will." We do hold, and all that we hold, is that there is no evidence in the present record sufficient to support the court's finding that such bona fide controversy exists. Accordingly, the judgment of the court below is vacated and the cause is remanded for further proceedings not inconsistent with this opinion.
If there exists in fact a genuine and bona fide controversy as to the validity of the "Will," the proposed modifications of its dispositive provisions seem reasonable and not adverse to the best interests of the defendants.
Error and remanded.
