48 S.E. 675 | N.C. | 1904
Lead Opinion
The land described in the petition was the property of Simon J. Nobles, the husband of plaintiff’s testatrix, and father of the defendants. He conveyed it to Macon G. Moye, who immediately conveyed to said Mary J. Nobles.
Ten years thereafter the husband, Simon J. Nobles, executed his will, bequeathing to his wife, the said Mary, all of his personal property, of the value of $100, and devising to her the land conveyed, as aforesaid, for her life, remain
Gaston, J., in Melchor v. Burger, 21 N. C., 634, says: “Ever since the case of Noyes v. Mordaunt, 2 Ves., 581, which was decided in 1706, it has been holden for an established principle of equity that where a testator by his will confers a bounty on one person and makes a disposition in favor of another prejudicial to the former, the person thus prejudiced shall not insist upon his old right and at the same time enjoy the bounty conferred by the will.
A careful examination of the record we think explains the conduct of the parties. The land belonged to Simon J. Nobles. He conveyed it to his son-in-law, who immediately conveyed to the wife. It was the purpose, by these conveyances, to put the title in the wife, doubtless to meet some undisclosed conditions or family arrangement. The husband thereupon makes his will, giving this land to the ryife for life, remainder to the son, subject to a charge of about one-half its value in favor of his two daughters. The wife leaves a will in which she makes no mention of this land— the reasonable inference is that she understood and acquiesced in her husband’s disposition of the property. The issue in regard to her ownership is found by consent in the affirmative. It was evidently the purpose of counsel to pre
New Trial.
Dissenting Opinion
dissenting. Tbe facts of this case are well stated in tbe opinion of tbe majority of tbe Court, as written by Mr. Justice Gonnor, and it is not necessary therefore to repeat them here. I do not differ with my brethren of tbe majority in their understanding of tbe facts, but their views and mine are not at all in accord as to tbe law applicable to those facts. They think, and have so decided, that a case
It is not necessary though to rely upon the principle of compensation in order to defeat the claim of the defendant, S. J. Nobles. Every widow of an intestate, or of a testator from whose will she has dissented, is entitled, besides her distributive share in her deceased husband’s personal estate, to an allowance for the support of herself and family for one year after his death, the value of that “year’s allowance” being not less than $300. The Code, secs. 2116 and 2118. Where the value of any gift of personal property to her in her husband’s will does not exceed the amount allowed her by law she need not dissent in order to claim her year’s support, because it is presumed to be given by the testator as and for her allowance. Flippen v. Flippen, 117 N. C., 376. There could be no reason for requiring her to dissent if she will get no more by doing so, and in such a case she takes the amount given in the will as her year’s allowance by virtue of the law and not of the will. She is considered as in the possession and enjoyment of it under her paramount title. Statutes, in all material respects like ours, have been thus construed in other States by courts whose decisions are entitled to the highest respect. Baker v. Baker,
The rule requires, therefore, that there must be a benefit which the party claimed to have elected would not have enjoyed if the will had not been executed. What did this widow get under the- will that she would not have received under the law by dissenting (if a dissent was necessary) or if her husband had died intestate ? The taking of her property under such circumstances, when she gets nothing that can justly be called compensation, would amount to confiscation and would violate the cardinal principle of the doctrine of election.
The cases cited in the opinion do not sustain the conclu
The idea that the mere qualification .of a person as executor or administrator with the will annexed estops him to claim against the instrument, that is to accept and reject it at the same time, was founded upon the ancient provision of the common law by which the personal representative, after paying debts and legacies, was entitled to the surplus of the estate, and also had the right of retainer against other creditors whose debts were of equal dignity and had other rights and privileges not necessary to be enumerated. All of these have been taken away and the rule founded upon this reason of the common law has ceased to exist. This is in accordance with the maxim of the law. “Reason is the .soul of the law, and when the reason of any particular law ceases, so does the law itself.” Broom’s Legal Maxims (8 Ed.), p. 159. The proposition that an executor is thus es-topped by his proving the will and qualifying under it is distinctly repudiated by this Court in Allen v. Allen, 121 N. C., 328, as the following language of the Court in the opinion of Montgomery, J., will clearly show. Discussing the question as to whether proving the will and qualifying as executor estop or amount to an election, the Court says: “This is an important question and is raised in its naked simplicity for the first time in this State. Under the com
It all comes to this: That the widow did not forfeit her land so as to divest her title and take away the right of her executor to sell it, but if she was put to an election at all, which I think has been shown not to be the case, she can, still claim her own (and her executor succeeds to her right) by making compensation to the extent of the legacy received by her. The subject, in this aspect of it, is so exhaustively discussed and the principle for which I contend is so conclusively vindicated in 2 Underhill on Wills, sec. 729, as the only true and equitable one, and the one too which has been generally if not universally accepted, that I must add what is said by that text writer to the other authorities cited. If it is suggested that this view of the case was not presented in the Court below, nor in this Court, I can only answer that the lower Court held the plaintiff was not estopped, and, as the charge to the jury to that effect was correct, it can make no difference what reason for the ruling was in the mind of counsel or the Court. We must presume, in the absence of a reason being assigned, that the decision was based upon the right one.
I conclude that neither the widow nor her executor was estopped to deny the title, nor was she put to an election, and, if she was, the case should have been decided upon the principle of compensation and not upon that of forfeiture or estoppel. In no view of the case can the Court, upon the ground of estoppel or election, deprive the widow or her executor who represents her of that which was rightfully hers and give it to another, who will lose nothing to which he is justly entitled if the money and the land are both adjudged to have been hers at her death. In my judgment, it would be not only against sound law so to do, but against established principles of equity. The defendant would be
Lead Opinion
WALKER and DOUGLAS, J.J., dissenting in part. This is a petition filed by the plaintiff, executor of Mary Nobles, deceased, for license to sell her real estate to make assets for the payment of her debts. The defendants are her heirs at law. The petition contains the usual averments prescribed by the statute in such cases. The defendant, S. J. Nobles, filed an answer to the petition, denying the material averments therein. The Clerk, upon the coming in of the answer, transferred the cause to the civil issue docket for trial upon the *73 issues raised by the pleadings. The only issues and finding thereupon pertinent to the exceptions are: "Did Mary Nobles die in possession of and holding title in fee to the lands described in the petition?" This issue was by consent answered "Yes." "Is the plaintiff estopped to allege title in Mary Nobles at the time of her death of the lands described in the complaint?" The jury, under instruction of the Court, answered the second "No." From a judgment for the plaintiff the defendant, S. J. Nobles, appealed. The land described in the petition was the property of Simon J. Nobles, the husband of plaintiff's testatrix, and father of the defendants. He conveyed it to Macon G. Moye, who immediately conveyed to said Mary J. Nobles.
Ten years thereafter the husband, Simon J. Nobles, executed his will, bequeathing to his wife, the said Mary, all of his personal property, of the value of $100, and devising to her the land conveyed, as aforesaid, for her life, remainder to his son, the defendant, S. J. Nobles, subject to a charge of $126 in favor of his daughter, Florence L. Moye, and $172 (101) in favor of another daughter, C. F. Crawford, both of whom are defendants herein. Said Simon J. died March, 1891, and his widow, the said Mary, offered the will for probate and qualified as administratrix cum testamento annexo. In her application for probate of said will and letters of administration she set forth the value of the estate as $600, of which "$500 is real estate and $100 is personal property." She further set forth that "Simon J. Nobles, Florence L. Moye and Mary Nobles, the widow, are entitled as heirs and distributees." The said Simon J. and wife, Mary, resided on said land during the life of the former, and after his death she remained in possession until her death, November 19, 1902. She retained the personal property bequeathed to her in the will of her said husband. The said Mary Nobles left a last will and testament appointing the plaintiff executor, which was duly admitted to probate. She made no disposition of said land in her will. The defendant, S. J. Nobles, insists that by proving the will of her husband and qualifying as his administratrix cum testamento annexo, and taking and retaining the personal property, the said Mary elected to take thereunder, and that she and her representatives are thereby estopped from making any claim to the land inconsistent with the provisions of the will. *74
GASTON, J., in Melchor v. Burger,
A careful examination of the record we think explains the conduct of the parties. The land belonged to Simon J. Nobles. He conveyed it to his son-in-law, who immediately conveyed to the wife. It was the purpose, by these conveyances, to put the title in the wife, doubtless to meet some undisclosed conditions or family arrangement. The husband thereupon makes his will, giving this land to the wife for life, remainder to the son, subject to a charge of about one-half its value in favor of his two daughters. The wife leaves a will in which she makes no mention of this land — the reasonable inference is *77 that she understood and acquiesced in her husband's disposition of the property. The issue in regard to her ownership is found by consent in the affirmative. It was evidently the purpose of counsel to present the contested question upon the third issue. His Honor instructed the jury to answer the issue "No." Strictly speaking, his Honor was correct. (106) The right of the remainderman, S. J. Nobles, does not accrue by way of estoppel. A court of equity, would, if applied to at the death of the husband and the election of the wife to take under the will, have decreed a conveyance of the legal title in the land to the remainderman, subject to the life estate of the wife; or accomplished the same end by impressing a trust upon the legal title in accordance with the disposition made in the will. Mr. Eaton says: "If the donee elects to take under the will he must carry out all of its provisions, and transfer his own property disposed of thereunder to the person named as the recipient thereunder. Eaton's Eq., 66. The will of Simon J. Nobles did not transfer the legal title, hence it remained in the wife, burdened with the rights of the son and his sisters. We notice this phase of the record because of the apparent inconsistency in the verdict. The legal title to the land is in the heirs of Mrs. Nobles, but as she would have been precluded from asserting it against the devisee in the will, save for her life estate, so her executor may not sell the naked legal title as against the beneficial owner, the defendant, Simon J. Nobles. The cause must be remanded for a new trial in accordance with this opinion. It is so ordered.
New trial.
Concurrence Opinion
I concur in the dissenting opinion.