
124 S.E.2d 822 (1962)
256 N.C. 630
L. E. STEWART and wife, Nonie D. Stewart, et al.
v.
Grace M. McDADE.
No. 738.
Supreme Court of North Carolina.
April 11, 1962.
*825 Bonner D. Sawyer, Hillsboro, Reade, Fuller, Newsom & Graham, Durham, for plaintiffs.
Max D. Ballinger, Greensboro, for defendant.
MOORE, Justice.
Defendant's assignments of error pose the general question, whether or not the matters decided by the jury's verdict are sufficient predicate for the relief granted by the court in the judgment.
Issues arise on the pleadings, and their formation must have regard to the phases of the evidence pertinent thereto. Brown v. Daniel, 219 N.C. 349, 352, 13 S.E. 2d 623. Exclusive of matters settled by stipulation, the only issues of fact raised by the complaint and answer in the case at bar are those which were submitted to and answered by the jury. Defendant set up no affirmative defenses. The execution of the release having been established by the verdict, its force and effect was a question of law for the court.
Defendant contends that, notwithstanding the jury's finding that she executed the release for a valuable consideration, the complaint fails to state facts sufficient to constitute a cause of action and the demurrer should have been sustained.
In the first place, defendant asserts that the subject of the release is a mere possibility and a contract with respect thereto is against public policy and void. Under the old practice an assignment of a mere expectancy of an heir apparent could not be enforced in an action at law. Cannon v. Nowell, 51 N.C. 436; Fortescue v. Satterthwaite, 23 N.C. 566. But equity gave effect to the assignment of a mere expectancy or possibility as a contract, in the absence of proof of fraud or imposition. Mastin v. Marlow, 65 N.C. 695; McDonald v. McDonald, 58 N.C. 211. The present rule in this jurisdiction is clearly stated in Price v. Davis, 244 N.C. 229, 93 S.E.2d 93, in which Denny, J. (now C. J.) discusses the decisions of this Court bearing on the subject. In Price the ancestor had four sons and four daughters. For a specified consideration paid by the ancestor each of the four daughters released to him any and all right to share in his estate. There was no contention that the amounts paid the daughters were not fair shares of the estate. It was held that the releases were binding and the daughters were estopped thereby to claim any part of the estate. The principles involved are fully discussed, and the opinion points out that "There is no allegation or contention of bad faith, overreaching or fraud on the part of the ancestor, or disability of any one of the four daughters."
*826 North Carolina follows the majority rule. 35 N.C.Law Rev. 127 (1956). "If fraud and gross inequality are not present, the consideration for the release will usually be held fair even though its amount may later turn out to be an inadequate share of the estate. The burden of proving want of consideration is on the party asserting said want." ibid., p. 131. The majority rule is stated as follows: "Generally, the release of an expectant share to an ancestor, fairly and freely made, in consideration of an advancement or for other valuable consideration, excludes the heir from participation in the ancestor's estate at his death. It is necessary that the person executing the release was at the time competent to contract, that the release was not obtained by means of fraud or undue influence, and that the instrument or transaction in question be sufficient to constitute a release or a contract creating a bar; and the burden of proving want of consideration for the release is on the party asserting such want." 26A C.J.S. Descent & Distribution § 62, pp. 656, 657. In the case of Re Edelman's Estate, 148 Cal. 233, 82 P. 962 (1905) it is said: "It is true that where the heir sought to transfer or convey his interest in the estate of an ancestor to a third person, equity, before it would give effect to such transfer, required evidence from that third person of the good faith and fairness of the transaction, the very apparent reason being that designing persons should not take advantage of the improvidence or penury or inexperience of one to strip him of his prospective inheritance. An additional reason was that such a transfer, made without the knowledge of the ancestor, was in a certain sense a fraud upon him. Both these reasons are eliminated, however, and with their elimination the rule ceases when the release is made to the ancestor himself; for, in the first place, since he has the right absolute to disinherit, he cannot be accused of taking advantage of the heir, and, in the second place, as the release is made to him he is not in ignorance of the fact, and thus could not be deceived into leaving his property to one to whom he never intended it should go. Therefore, where such a release is made to the ancestor, the rule requiring the party relying on it to prove its fairness is no longer in force." A fortiori, where, as in the instant case, the releasor and expectant devisee is a stranger and not an heir apparent to the anticipated testator, and the release is to the latter or his estate and for a valuable consideration, the burden is upon the former to allege and prove gross want of consideration, fraud or oppression, if estoppel is to be defeated. Defendant herein alleges none of these and pleads no affirmative defense.
The policy of the law, of which defendant speaks, is for the protection of heirs apparent, and against children spending their inheritance before it comes to them. Price v. Davis, supra; Kornegay v. Miller, 137 N.C. 659, 50 S.E. 315; Boles v. Caudle, 133 N.C. 528, 45 S.E. 835. It does not extend to a stranger. Where, by reason of close association and friendship a stranger is placed in a favored position with another and it is apparent that the latter might leave the former a legacy, and the former releases to the latter or his estate upon a valuable consideration the expected gift, the release will work an estoppel as to any gift to the stranger under the will of the other, especially when it is strongly suggested that the testator lacked mental capacity to make the will at the time of its execution.
Defendant further contends that it was beyond the scope of the guardian's authority to expend assets of his ward's estate to obtain a release from defendant for the benefit of the heirs. This argument misconceives the nature of the transaction. The guardian has the positive duty to preserve the estate of his ward. In the performance of this duty Stewart's guardian instituted an action to set aside the deed Stewart had made to defendant, for want of mental capacity on Stewart's part to execute a deed. Defendant freely admits that she deeded the property back to end litigation. The execution and delivery of the deed and release by defendant constituted one transaction, all had on the same *827 date. It was hardly to be expected that the guardian, knowing that a purported will had been executed, would merely accept the deed as a final settlement of the matter, when the deed might be set at naught almost immediately by the possible death of the ward. The transaction was duly approved by the court.
Though the contracting parties did not know that a purported will had been executed on 7 August 1952, the contract is sufficient in terms to release the rights and interests of defendant under any will Stewart might execute. It provides that "the undersigned, Grace M. McDade, does hereby forever renounce any bequest and devise made to her in said purported will or paper writing, or any other testamentary disposition made to her by the said J. A. Stewart at any time, and any right that she may have to qualify as executrix of the Estate of J. A. Stewart, and that she will not at any time in the future make or assert any claim as legatee and devisee of his estate, and does hereby also assign, set over, transfer, release, quitclaim, and convey and does by these presents assign, set over, transfer, release, quitclaim and convey unto the Estate of J. A. Stewart and his heirs and their assigns, all right, title and interest that she may have at any time in the future as legatee and devisee of the said J. A. Stewart in and to any and all personal and real property of which the said J. A. Stewart may die seized and possessed."
Plaintiffs were entitled to have this action determined under the Declaratory Judgments Act. G.S. § 1-254. There is a real controversy. The heart of the case is the determination of the effect, meaning and validity of the release and the rights of the parties thereunder. In First Security Trust Co. v. Henderson, 226 N.C. 649, 39 S.E.2d 804, it was held that the court might determine the validity of an assignment by a legatee in a suit by the executor under the Act.
Questions raised by the assignments of error and not discussed herein are without merit and will not be sustained. In the trial below we find
No error.
SHARP, J., took no part in the consideration or decision of this case.
