53 S.E. 220 | N.C. | 1906
Lead Opinion
after stating the case: We had occasion to consider the general principle involved in this record in the case of Tripp v. Nobles, 136 N. C., 99, and upon a rehearing in 138 N. C., 747. The plaintiff insists that a distinction may be drawn between that case and the facts presented in this appeal; he also suggests that the very able dissenting opinion “is more in harmony with decisions and justice.” It must be conceded that in some eases, there is an apparent hardship in the application of the well-settled doctrine of
The discussion and review of the authorities are full and exhaustive. In Adset v. Adset, 2 John, Ch. 448, Chancellor Kent said: “Taking possession of property under a will or other instrument and exercising unequivocal acts of ownership over it for a long time, will amount to a binding election.” Penn v. Gugginheimer, 76 Va., 839; Pom. Eq., 513; Fetter Eq. 56. We have discussed the question upon the theory that the widow in her life time, or her heirs at law; at her death, were seeking to claim her land devised by Jesse N. Jordan. It would seem that, if such were the case, they would, under the circumstances, be held to have elected to claim under the will after the unequivocal acts of ownership and long acquiescence in the disposition made by her bus-band. However this might be, we are unable to perceive bow, in the light of the facts appearing in the record, where all of the parties interested, or who, if no disposition bad been made of the land by the busband, would have been interested, are still acquiescing in and claiming under the will, the administrator of Mrs. Jordan can treat the election to claim against the will, as having been made, and subject the land to sale: It is conceded that the only purpose in seeking to sell the land is to pay a debt contracted by Mrs. Jordan after the death of her busband. She was certainly under no legal or moral obligation to the creditor to dissent from her husband’s wall or elect to take against it. The status of her property was
We have given the case a careful consideration and re-examined the authorities and find no reason for disturbing the decisions heretofore made by us. It may be proper to say that all of the authorities disclose a purpose to give to the widow, claiming dower in land devised to her, the largest possible latitude, both in regard to the construction of the will and the
Affirmed.
Concurrence Opinion
concurring in result: This case is not like Tripp v. Nobles, 136 N. C., 99. Here there was a substantial benefit conferred by the will, which forced the plaintiffs intestate to choose between the acceptance of that,benefit and the retention of the property, already her own, which is attempted to be disposed of by the same instrument. There was no such benefit received under the will construed in Tripp v. Nobles. It would seem but just to require that the benefit bestowed should be a substantial one, in order to put the donee to an election, and that it should not consist merely of property which he would have received under the law, if the will had not been made. Further investigation confirms me in the view entertained and stated in my dissenting opinion in that case. The principle was adopted and applied in Tyler v. Wheeler, 160 Mass., 206, where it was held that an executor is not estopped by qualifying under the will of his wife to claim his legal interest in her estate, and in Register v. Hensley, 10 Mo., 189, the court decided that a widow’s renunciation of the provisions of her husband’s will, made in lieu of dower, was not invalidated by her not surrendering personal property, which she had previously received under the will, where the amount was the same as that which she would receive under, the administration law. The case of Loving v. Craft, 16 Ind., 110, also sustains the same view, as the court held that a surviving wife is entitled to the statutory provision of $300 “notwithstanding she may have accepted the provisions made for her by the will of her husband.” Correll v. Ham, 2 Iowa, 552; Wilbur v. Wilbur, 52 Wis., 298. The language used in Fitts v. Cook, 59 Mass. (5 Cush.), 601,
It was held in In re Gwyn, 77 Cal., 313, that “a widow is not estopped to make an election to take under the law by causing the will of her husband to be probated and by becoming executrix thereof.” To the same effect is Estate of Frey, 52 Cal., 658. The court decided in Collier v. Collier, 3 Ohio St., 369, that “a widow electing to take under a will, containing provisions for her, expressed to be in lieu of dower and all other claims on the estate of the testator, is not barred of her right to the year’s support, provided by law, from the estate of the debtor.” So it was held in Taylor v. Browne, 2 Leigh (Va.), 454, that by taking administration with the will annexed, the widow will not be held to have elected to claim under the will instead of under a deed of settlement, formerly made by her husband for her use and benefit and which contained a disposition of the property different from, and more beneficial to her than the provisions of the will. Taking under the will, says the court in Hubbard v. Russell, 73 Ala., 578, will not deprive the widow of her exemption of one thousand dollars allowed her by the law, for she substantially and practically takes what already belongs to her..
Election being a matter of equitable cognizance, the ordi
Upon the doctrine of compensation, I will add to the authorities cited in my dissenting opinion in Tripp v. Nobles, the following: In Bell v. Culpepper, 19 N. C., 20, this court, by Gaston, J., said: “The rule of election, in the sense in which it is insisted on by the defendant, is confined exclusively to courts exercising equitable jurisdiction, which have it in their power to restrain men from the unconscientious assertion of acknowledged legal rights. They hold that it is against conscience for a man to take a benefit under a will or other instrument, and at the same time disappoint other plain provisions of that will, made in favor of third persons. Of course he may keep, if he pleases, what was before his own;
It does not appear in the case at bar what is the value of the land, nor what is the value of the “Lewiston lots,” so that the principle of compensation could not be applied, even if there had not been a binding election to take under the will but an election had been so made as to call for the application of that principle, and even if equitable relief can be administered in this statutory proceeding and by the court where it originated. Vance v. Vance, 118 N. C., 864.
While I differed from the majority of the court in the case of Tripp v. Nobles, as to the questions of estoppel and election involved, yet having fully stated what, in my opinion, is the correct principle of law, as it should have been declared and applied to the facts, henceforth that decision shall be the law with me, for it may be right, though the conclusion reached by the court, I must think, and this is said with the utmost deference, is not supported by the best precedents or by the weight of authority.
Lead Opinion
This was a petition by the administrator of Mary C. Jordan, deceased, to sell land for the purpose of making assets with which to pay debts. The defendants are the devisees of Jesse N. Jordan, and heirs at law of his widow, Mary C. The petitioner alleged that his intestate, Mary C., died seized of the lands described in the petition. This was denied by defendants. The cause was, upon issue thus joined, transferred to the civil issue docket for trial. By consent, his Honor found the facts. On 18 May, 1877, Mary C. Jordan, being the owner of a share of a tract of land, descended from her father, joined with her husband, Jesse N. Jordan, in a conveyance of said share to her sister, Florence Hancock, and her husband, R. E. Hancock. On the same day the said Florence and her husband joined in a conveyance of her interest in said land to the said Mary C., and her husband, Jesse N. Jordan, who died October, 1887, leaving a last will and testament, nominating (611) the said Mary C. executrix thereto. Item 1 of his will is in the following words: "I leave to my beloved wife, Mary Catherine, during her natural life, my entire personal property of every kind and description, to use as she may think best, together with all of my real estate, consisting of the Hancock tract of land, and the two stores and lots situated in Lewiston, to lease or rent, as she may think best for the interest of herself and younger children." He gave the same property upon the death of his wife to his children, who were *457
also the children of his wife, Mary C. The value of the personal estate of said Jesse N. was, at the time of his death, $200. The said Mary C. proved the will and qualified as executrix thereto, taking into her possession the personal estate and occupying the land until her death, March, 1896. She left no will. Petitioner qualified as her administrator, 4 January, 1904. She was indebted in the sum of $75. His Honor, upon the foregoing facts, being of the opinion that the said Mary C. took under the will but a life estate in the lands, rendered judgment for defendants, to which plaintiff excepted and appealed.
after stating the case: We had occasion to consider the general principle involved in this record in Tripp v. Nobles,
The discussion and review of the authorities are full and exhaustive. InAdset v. Adset, 2 John, Ch. 448, Chancellor Kent said: "Taking possession of property under a will or other instrument and exercising unequivocal acts of ownership over it for a long time, will amount to a binding election." Penn v. Gugginheimer,
We have given the case a careful consideration and re-examined the authorities and find no reason for disturbing the decisions heretofore made by us. It may be proper to say that all of these authorities disclose a purpose to give to the widow, claiming dower in land devised to her, the largest possible latitude, both in regard to the construction of the will and the time within which she is required to elect. As said by Romilly,(616) V. C., in Worthington v. Wigginton, supra, "the cases relative to dower have no application to the present."
The judgment of the court below must be
Affirmed.