On motion for judgment of nonsuit, we consider and construe the two instruments
In tbe transaction of 28 May, 3 923, it was tbe intent of tbe parties for plaintiffs to bave tbe option to purchase tbe property at $5,000.00 frоm J. C. Sandlin and Susie Sandlin if tbey desired to sell in tbeir lifetime or in tbe lifetime of tbe survivor. It is noteworthy that tbe right to purchase during this period was not absolutе but exercisable only if I. C. Sandlin and Susie Sandlin, or tbe survivor, desired to sell. According to tbe contract, tbeir right to purchase became absolute upon tbe death of J. C. Sandlin and Susie Sandlin.
It is stated in 55 Am. Jur., Vendor and Purchaser, sec. 27: “An option to purchase real property mаy be defined as a contract by which an owner of real property agrees with another person that tbe latter shall bave tbe privilege of buying tbe property at a specified price within a specified time, or within a reasonable time in tbe future, and which imposes no obligation to purchase upon tbe person to whom it is given. Until tbe bolder or owner of an option for tbe purchasе of property exercises it, be has nothing but a mere right to acquire an interest, and has neither tbe ownership of nor any interest in tbe рroperty itself.”
Rights of plaintiffs under tbe contract constitute option rights. Tbe contract is unilateral. Plaintiffs are not legally bound to purchase tbe property from anybody at any price at any time. Tbe contract itself describes plaintiffs’ rights as an option. While this is not conclusive, it is a circumstance bearing upon tbe intent of tbe parties. Lewis v. Nunn, supra.
Treated as an option, plaintiffs’ rights as against defendants, аccrued upon tbe death of Susie Sandlin. No election to exercise tbeir option was made until tbeir tender of $2,500.00 on 16 October, 1953, more than eleven years after tbeir rights accrued. “No time being specified within which tbe right to buy may be exercised, that it must be exercised within а reasonable time is not subject to controversy.”
Ritter v. Chandler,
We bave considered tbe case upon tbe assumption that tbe plaintiffs’ option to purchase was valid. Attention is directed to tbe fact that tbe plaintiffs’ option rights run in favor of plaintiffs,
and their heirs,
and purport to be binding upоn J. C. Sandlin and Susie Sandlin,
and their heirs.
We need not now decide whether tbe contract itself was void as being an unreasonable restraint upon alienаtion. Anno., “Option to purchase as violation of rule against perpetuities or rule forbidding restraints on alienation.”
Apparently, on 28 May, 1923, the parties bad it in mind tbat J. C. Sandlin and Susie Sandlin would die intestate; and tbat in sucb ease George
W.
Sandlin would inherit an undivided one-half interest in the property and would acquire the right to purchase at $2,500.00 the undivided one-half interest inherited by Mamie Mashburn. The fact that $2,500.00 (rather than $5,000.00) was to be paid to Mamie Mashburn, or her legal heirs, suggests that it was contemplated that she, upon the death of her parents, would own an undivided оne-half interest. If this was the original intent, subsequent events indicate a radical departure therefrom. Presumably, J. C. Sandlin died intestate. Susie Sandlin diеd testate, devising this property in fee simple to or for the benefit of Mamie Mashburn. Other property was devised to George "W. Sandlin. He was named as executor. Defendants went into possession of this property and have continued in possession thereof. If Georgе "W. Sandlin qualified as executor and accepted real and personal property of Susie Sandlin devised and bequeathed tо him by her will, it would seem that he
“The dоctrine of election is based upon the principle that a devisee or donee cannot take benefits under a will and reject its adverse provisions. Lamb v. Lamb,226 N.C. 662 ,40 S.E. 2d 29 . The beneficiary under a will is not required to elect unless two benefits are presented which are inconsistent with each other. And when the beneficiary chooses to accept one of them such choice is tantamount to a rejеction of the other. He will not be permitted to take under the will and against it. And where the devisor purports to devise property which bеlongs to the beneficiary, giving it to another, and also devises property of his own to the beneficiary, such beneficiary must make a -choice between retaining his own property, which has been given to another, or take the property which has been given him under the terms of the will. By electing to take the gift from devisor’s estate, he is estopped from claiming his own property. Elmore v. Byrd,180 N.C. 120 ,104 S.E. 162 ; 57 Am. Jur. 1060; 69 C.J. 1089.”
Plaintiffs contend that the contract of 28 May, 1923, created a trust; that J. O. Sandlin and Susie Sandlin, during their lifetime, and defendants, after the death of the parents, were trustees fоr plaintiffs; and that there was no repudiation or disavowal of the trust until 16 October, 1953, when they rejected plaintiffs’ tender of $2,500.00 and refused to сonvey the property to plaintiffs. While we cannot accept the interpretation that the contract created a trust, if this were true plaintiffs’ action would be barred by the pleaded statutes of limitation. For if Susie Sandlin were a trustee, she repudiated and disavowed such trust unequivocally when
she devised the property in fee simple to or for the benefit of Mamie Mashburn; and it must be presumed, nothing еlse appearing, that defendants, who derive their title through the Will, took possession and have continued possession accоrding to their rights as defined in the Will, that is, as owners in fee simple. When a trustee by devise disposes of trust property in fee simple, free from and in contradiction of the terms of the trust, this is a repudiation or disavowal of the trust.
Pownall v. Connell,
For the reasons stated, the judgment of the lower court is
Affirmed.