PARKER, C.J.
Appellants have three assignments of error as follows:
“1. That the court erred in its finding of fact that Oscar P. Breece, testator, was under the mistaken idea that he owned all of the property in which he held any interest and that he had the right to will and devise the same as he saw fit.
“2.
That the court erred in its finding of fact that the testator did not intend that his widow, Mary J. Breece, be put to an election that would require her to forfeit her fee simple ownership arising upon and as an incident to lands owned as an estate by the entireties in order to obtain the other benefits afforded her by the Last Will and Testament.
“3. That the court erred in its conclusion of law that upon the facts found Mary J. Breece, widow, was not put to an election with respect to lands owned by Oscar P. Breece and Mary J. Breece as an estate by the entirety and the acceptance of a life estate in other lands, including income producing property on Russell Street in the City of Fayetteville and that she, as
surviving tenant by the entirety at the time of the death of the testator, became the owner in fee of all lands owned as an estate by the entirety and the owner of a limited life estate in and to the lands owned by the testator in fee simple.”
Appellants do not challenge any pure findings of fact by Judge Bailey. Nearly all of the facts were stipulated and agreed to in writing by counsel for all parties.
The sole question for us to determine is whether or not the doctrine of election applies to the facts in this case.
The doctrine of election has been stated correctly so many times in our cases, and particularly in very recent years by Bobbitt, J., for the Court in
Burch v. Sutton,
266 N.C. 333, 145 S.E. 2d 849 (1965); Sharp, J., for the Court in
Bank v. Barbee,
260 N.C. 106, 131 S.E. 2d 666 (1963); and Ervin, J., for the Court in
Lovett v. Stone,
239 N.C. 206, 79 S.E. 2d 479 (1953); that it would be sup-erogatory to state it again here, and to attempt to state it again, like the useless labor of trying to pile Ossa on Pelion, might lead to confusion instead of clarity.
Bobbitt, J., said for the Court in
Burch v. Sutton, supra:
“The doctrine of equitable election is in derogation of the property right of the true owner. Hence, the intention to put a beneficiary to an election must appear plainly from the terms of the will.
Lamb v. Lamb,
226 N.C. 662, 40 S.E. 2d 29;
Bank v. Misenheimer,
211 N.C. 519, 191 S.E. 14;
Rich v. Morisey,
149 N.C. 37, 62 S.E. 762;
Walston v. College,
258 N.C. 130, 128 S.E. 2d 134. ‘An election is required only when
the will
confronts a beneficiary with a choice between two benefits which are
inconsistent with each other.’ Honeycutt v. Bank,
242 N.C. 734, 89 S.E. 2d 598. An election is required only if the will discloses it was the testator’s manifest purpose to put the beneficiary to an election.
Bank v. Barbee,
260 N.C. 106, 110, 131 S.E. 2d 666.
“In
Lamb v. Lamb, supra,
in accordance with prior decisions, this Court said: ‘(I)f, upon a fair and reasonable construction of the will, the testator, in a purported disposal of the beneficiary’s property, has'mistaken it to be his own, the law will not imply the necessity of election.’ This statement is quoted with approval in
Bank v. Barbee, supra,
in which pertinent prior decisions are cited.”
Sharp, J., said for the Court in
Bank v. Barbee, supra:
“The doctrine of election has been stated and restated many times by this Court and, in the restating, it has been tempered
somewhat.
Melchor v. Burger,
21 N.C. 634;
Isler v. Isler,
88 N.C. 581;
Tripp v. Nobles,
[136 N.C. 99, 48 S.E. 675];
Hoggard v. Jordan, supra,
[140 N.C. 610, 53 S.E. 220]. The following statement of the doctrine in
Lovett v. Stone,
239 N.C. 206, 79 S.E. 2d 479, has the full sanction of our decisions today:
“ 'Election is the obligation imposed upon a party to choose between two inconsistent or alternative rights or claims in cases
where there is a clear intention of the person from whom he derives one that he should not enjoy both,
the principle being that one shall not take any beneficial interest under a will, and at the same time set up any right or claim of his own, even if legal and well founded, which would defeat or in any way prevent the full effect and operation of every part of the will.’ (Italics ours.)”
See also
Sandlin v. Weaver,
240 N.C. 703, 83 S.E. 2d 806;
Taylor v. Taylor,
243 N.C. 726, 92 S.E. 2d 136.
“The cases have always held that there was a presumption that a testator meant only to dispose of what was his own and that all doubts would be resolved ‘so that the true owner, even though he should derive other benefits under the will, will not be driven to make an election.’ However, if the will discloses a manifest purpose to require an election, then it is immaterial whether he should recognize it as belonging to another, or whether he should believe that he had the title and right to dispose of it.
Isler v. Isler, supra; Horton v. Lee,
99 N.C. 227, 5 S.E. 404;
Elmore v. Byrd, supra
[180 N.C. 120, 104 S.E. 162], This is the law today.
Lovett v. Stone, supra; Trust Co. v. Burns,
230 N.C. 592, 55 S.E. 2d 183.”
“An estate by entirety is based on the fiction of the unity of persons resulting from marriage, so that the husband and wife constitute a legal entity separate and distinct from them as individuals, with the result that together they own the whole, with right of sur-vivorship by virtue of the original conveyance.” 3 Strong’s N. C. Index, Husband and Wife, § 15.
Oscar P. Breece devises in Item Second of his last will and testament “all of my right, title and interest in Rogers and Breece Funeral Home, including accounts receivable, rolling stock, fixtures and equipment,” and including a vacant lot that forms a part of Rogers and Breece Funeral Plome, to his sons, Oscar P. Breece, Jr., Bobby Breece, and to his brother, Wilbur Breece. These tracts of land and the buildings thereon were owned by Oscar P. Breece and wife, Mary
J. Breece, as tenants by the entireties. Obviously, upon a fair and reasonable construction of his will, Oscar P. Breece, in his purported disposition of this property of Rogers and Breece Funeral Home, acted under the mistaken belief that he was the sole owner thereof.
Oscar P.
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PARKER, C.J.
Appellants have three assignments of error as follows:
“1. That the court erred in its finding of fact that Oscar P. Breece, testator, was under the mistaken idea that he owned all of the property in which he held any interest and that he had the right to will and devise the same as he saw fit.
“2.
That the court erred in its finding of fact that the testator did not intend that his widow, Mary J. Breece, be put to an election that would require her to forfeit her fee simple ownership arising upon and as an incident to lands owned as an estate by the entireties in order to obtain the other benefits afforded her by the Last Will and Testament.
“3. That the court erred in its conclusion of law that upon the facts found Mary J. Breece, widow, was not put to an election with respect to lands owned by Oscar P. Breece and Mary J. Breece as an estate by the entirety and the acceptance of a life estate in other lands, including income producing property on Russell Street in the City of Fayetteville and that she, as
surviving tenant by the entirety at the time of the death of the testator, became the owner in fee of all lands owned as an estate by the entirety and the owner of a limited life estate in and to the lands owned by the testator in fee simple.”
Appellants do not challenge any pure findings of fact by Judge Bailey. Nearly all of the facts were stipulated and agreed to in writing by counsel for all parties.
The sole question for us to determine is whether or not the doctrine of election applies to the facts in this case.
The doctrine of election has been stated correctly so many times in our cases, and particularly in very recent years by Bobbitt, J., for the Court in
Burch v. Sutton,
266 N.C. 333, 145 S.E. 2d 849 (1965); Sharp, J., for the Court in
Bank v. Barbee,
260 N.C. 106, 131 S.E. 2d 666 (1963); and Ervin, J., for the Court in
Lovett v. Stone,
239 N.C. 206, 79 S.E. 2d 479 (1953); that it would be sup-erogatory to state it again here, and to attempt to state it again, like the useless labor of trying to pile Ossa on Pelion, might lead to confusion instead of clarity.
Bobbitt, J., said for the Court in
Burch v. Sutton, supra:
“The doctrine of equitable election is in derogation of the property right of the true owner. Hence, the intention to put a beneficiary to an election must appear plainly from the terms of the will.
Lamb v. Lamb,
226 N.C. 662, 40 S.E. 2d 29;
Bank v. Misenheimer,
211 N.C. 519, 191 S.E. 14;
Rich v. Morisey,
149 N.C. 37, 62 S.E. 762;
Walston v. College,
258 N.C. 130, 128 S.E. 2d 134. ‘An election is required only when
the will
confronts a beneficiary with a choice between two benefits which are
inconsistent with each other.’ Honeycutt v. Bank,
242 N.C. 734, 89 S.E. 2d 598. An election is required only if the will discloses it was the testator’s manifest purpose to put the beneficiary to an election.
Bank v. Barbee,
260 N.C. 106, 110, 131 S.E. 2d 666.
“In
Lamb v. Lamb, supra,
in accordance with prior decisions, this Court said: ‘(I)f, upon a fair and reasonable construction of the will, the testator, in a purported disposal of the beneficiary’s property, has'mistaken it to be his own, the law will not imply the necessity of election.’ This statement is quoted with approval in
Bank v. Barbee, supra,
in which pertinent prior decisions are cited.”
Sharp, J., said for the Court in
Bank v. Barbee, supra:
“The doctrine of election has been stated and restated many times by this Court and, in the restating, it has been tempered
somewhat.
Melchor v. Burger,
21 N.C. 634;
Isler v. Isler,
88 N.C. 581;
Tripp v. Nobles,
[136 N.C. 99, 48 S.E. 675];
Hoggard v. Jordan, supra,
[140 N.C. 610, 53 S.E. 220]. The following statement of the doctrine in
Lovett v. Stone,
239 N.C. 206, 79 S.E. 2d 479, has the full sanction of our decisions today:
“ 'Election is the obligation imposed upon a party to choose between two inconsistent or alternative rights or claims in cases
where there is a clear intention of the person from whom he derives one that he should not enjoy both,
the principle being that one shall not take any beneficial interest under a will, and at the same time set up any right or claim of his own, even if legal and well founded, which would defeat or in any way prevent the full effect and operation of every part of the will.’ (Italics ours.)”
See also
Sandlin v. Weaver,
240 N.C. 703, 83 S.E. 2d 806;
Taylor v. Taylor,
243 N.C. 726, 92 S.E. 2d 136.
“The cases have always held that there was a presumption that a testator meant only to dispose of what was his own and that all doubts would be resolved ‘so that the true owner, even though he should derive other benefits under the will, will not be driven to make an election.’ However, if the will discloses a manifest purpose to require an election, then it is immaterial whether he should recognize it as belonging to another, or whether he should believe that he had the title and right to dispose of it.
Isler v. Isler, supra; Horton v. Lee,
99 N.C. 227, 5 S.E. 404;
Elmore v. Byrd, supra
[180 N.C. 120, 104 S.E. 162], This is the law today.
Lovett v. Stone, supra; Trust Co. v. Burns,
230 N.C. 592, 55 S.E. 2d 183.”
“An estate by entirety is based on the fiction of the unity of persons resulting from marriage, so that the husband and wife constitute a legal entity separate and distinct from them as individuals, with the result that together they own the whole, with right of sur-vivorship by virtue of the original conveyance.” 3 Strong’s N. C. Index, Husband and Wife, § 15.
Oscar P. Breece devises in Item Second of his last will and testament “all of my right, title and interest in Rogers and Breece Funeral Home, including accounts receivable, rolling stock, fixtures and equipment,” and including a vacant lot that forms a part of Rogers and Breece Funeral Plome, to his sons, Oscar P. Breece, Jr., Bobby Breece, and to his brother, Wilbur Breece. These tracts of land and the buildings thereon were owned by Oscar P. Breece and wife, Mary
J. Breece, as tenants by the entireties. Obviously, upon a fair and reasonable construction of his will, Oscar P. Breece, in his purported disposition of this property of Rogers and Breece Funeral Home, acted under the mistaken belief that he was the sole owner thereof.
Oscar P. Breece devises in Item Fourth of his last will and testament “all other property of which I shall die seized and possessed or to which I shall be entitled, the same at this time consisting of property in Norwood Street in the City of Fayetteville, designated at 1102 and 1104; also property on Russell Street in the City of Fay-etteville, designated as 532, 534, 536, and 538; also vacant property on the west side of ‘C’ Street in said city and my farm lands in Gray’s Creek Township, to have and to hold for the term of her natural life and at her death to my sons, Oscar Breece, Jr., and Bobby Breece, and to my beloved daughter, Mary Lee Breece Tart, as tenants in common in fee simple forever.” Oscar P. Breece at the time of his death owned in fee simple a house and lot at 1104 Nor-wood Street, Fayetteville, North Carolina. The house and lot at 1102 Norwood Street, Fayetteville, North Carolina, was held by Oscar P. Breece and wife, Mary J. Breece, as tenants by the entire-ties. At the time of his death Oscar P. Breece owned in fee simple four houses and lots on Russell Street, Fayetteville, North Carolina. A vacant lot on “C” Street, Fayetteville, North Carolina, was owned in fee simple by Oscar P. Breece. The farm lands in Gray’s Creek Township were owned by testator and his wife, Mary J. Breece, as tenants by the entireties. There was a vacant lot on Belmont Circle in the city of Fayetteville owned by Oscar P. Breece and wife, Mary J. Breece, as tenants by the entirety. Obviously, upon a fair and reasonable construction of his will, Oscar P. Breece, in his purported disposition of this property, acted under the mistaken belief that he was the sole owner of all these tracts of land referred to in Item Fourth of his will.
Oscar P. Breece devises in Item Fifth of his will to his beloved wife, Mary J. Breece, the house and lot in the city of Fayetteville in which they lived, together with the vacant property forming a part thereof, in fee simple. He also bequeathed to his wife in this item of his will all household and kitchen furniture and furnishings in the house. This house and lot, together with the household and kitchen furniture and furnishings were owned by Mary J. Breece, his wife, in fee simple. It is manifest, upon a fair and reasonable construction of his will, that Oscar P. Breece, in his purported disposition of this property to his wife, acted under the mistaken belief, as so many husbands do, that he was the sole owmer thereof, and that what belonged to his wife belonged to him.
In
Lamb v. Lamb,
226 N.C. 662, 40 S.E. 2d 29, this Court, in accordance with prior decisions, said: “(I)f, upon a fair and reasonable construction of the will, the testator, in a purported disposal of the beneficiary’s property, has mistaken it to be his own, the law will not imply the necessity of election.” This statement is quoted with approval in
Burch v. Sutton, supra,
and in
Bank v. Barbee, supra.
Respondent appellants cite and stress
Trust Co. v. Burrus,
230 N.C. 592, 65 S.E. 2d 183. As stated in substance in
Burch v. Sutton, supra,
on account of factual differences, and in the light of our most recent decisions,
Trust Co. v. Burrus
does not control with reference to the factual situation under consideration in the instant case.
Oscar P. Breece’s last will and testament, which is the only basis on which the doctrine of equitable election may be invoked, contains no provision that manifests an intent that an election was required by his beloved widow, Mary J. Breece. It is significant that his widow and his daughter, Mary Lee Breece Tart, respondents, did not appeal, and they, by their counsel, have signed petitioners’ brief asking that Judge Bailey’s judgment be affirmed. Judge Bailey’s judgment was correct, and is affirmed, and all of respondent appellants’ assignments of error are overruled.
Affirmed.