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
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.
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. The intention of the testator is apparent that both dispositions shall take effect, (102) and the conscience of the donee is affected by the condition thus implied that he shall not defraud the design of the donor by accepting the benefit and disclaiming the burden, giving effect to the disposition in his favor and defeating that to his prejudice." The doctrine is so strongly fixed in our jurisprudence, and so uniformly adhered to and enforced by the Court, that it is unnecessary to cite authority for its support. The facts set out in this record bring the case clearly within the operation of the principle, unless, as contended by the plaintiff, there be some distinguishing feature to take it out of the general rule. The land devised to the wife for life, remainder to her son, subject to the charge in favor of the daughters, was the property of the wife. This was well known to the husband. The personal property bequeathed to her in the will was the property of the husband. Upon the death of the husband the wife well knew the status and value of the property and the provisions of the will. She wassui juris, and fully competent to elect by dissenting from the will, if she so desired, thereby holding her land and taking the personal property as her year's support by appropriate proceedings for that purpose. She deliberately and by a most solemn and unmistakable act chose to take andhold under the will. The principle of law which fixed her status in respect to the property is thus stated: "The doctrine of election as applied to the law of wills simply means that he who takes under a will must conform toall of its provisions. He can not accept a benefit given by the testamentary instrument and evade its burdens. He must either conform to the will or wholly reject and repudiate it. No person is under any legal obligation to accept the bounty of the testator; but if he accepts what the testator confers upon him by his will, he must adhere to that will throughout all its dispositions." Underhill Wills, sec. 726. This Court in Weeks v. Weeks, 77 N.C. 421, (103) says: "It is a familiar principle of equity that a devisee or legatee can not claim both under a will and against it. If the will give his property to another he may
keep his property, but he can not at the same time take anything given to him by the will; for it was given to him upon the implied condition that he would submit to the disposition of his property made by the testator." But it is suggested that, as the personal property given the wife was worth only $100 and the land $500, she took no benefit under the will; that she was entitled to have the personalty allotted to her as and for her year's support, and, therefore, received no more than by the law she was entitled to have from her husband's estate. We at first thought this fact relieved her of the duty to elect, but upon a careful examination of the works on Equity Jurisprudence, and many cases, we find no suggestion of any such exception to the general rule. The value of the personalty and her right to claim in some other way presented a strong reason to her for exercising her right to dissent from the will and thereby elect to take against it, but with a full knowledge of the facts she elected to prove the will and take out letters of administration, assuming thereby the duty of executing its provisions. If she had been misled or acted under misconception of the condition of the estate and her rights, she might have had relief and been permitted to exercise her right of election to dissent from the will, but there is no suggestion of that kind here. It has been held in New York that when one elected to take a benefit under the will, with burdens attached, he was bound although it turned out that the burden was greater than the benefit. Brown v. Knapp,79 N. Y., 136. "One who accepts a devise or bequest does so on condition of conforming to the will.
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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
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.
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. The intention of the testator is apparent that both dispositions shall take effect, (102) and the conscience of the donee is affected by the condition thus implied that he shall not defraud the design of the donor by accepting the benefit and disclaiming the burden, giving effect to the disposition in his favor and defeating that to his prejudice." The doctrine is so strongly fixed in our jurisprudence, and so uniformly adhered to and enforced by the Court, that it is unnecessary to cite authority for its support. The facts set out in this record bring the case clearly within the operation of the principle, unless, as contended by the plaintiff, there be some distinguishing feature to take it out of the general rule. The land devised to the wife for life, remainder to her son, subject to the charge in favor of the daughters, was the property of the wife. This was well known to the husband. The personal property bequeathed to her in the will was the property of the husband. Upon the death of the husband the wife well knew the status and value of the property and the provisions of the will. She wassui juris, and fully competent to elect by dissenting from the will, if she so desired, thereby holding her land and taking the personal property as her year's support by appropriate proceedings for that purpose. She deliberately and by a most solemn and unmistakable act chose to take andhold under the will. The principle of law which fixed her status in respect to the property is thus stated: "The doctrine of election as applied to the law of wills simply means that he who takes under a will must conform toall of its provisions. He can not accept a benefit given by the testamentary instrument and evade its burdens. He must either conform to the will or wholly reject and repudiate it. No person is under any legal obligation to accept the bounty of the testator; but if he accepts what the testator confers upon him by his will, he must adhere to that will throughout all its dispositions." Underhill Wills, sec. 726. This Court in Weeks v. Weeks, 77 N.C. 421, (103) says: "It is a familiar principle of equity that a devisee or legatee can not claim both under a will and against it. If the will give his property to another he may
keep his property, but he can not at the same time take anything given to him by the will; for it was given to him upon the implied condition that he would submit to the disposition of his property made by the testator." But it is suggested that, as the personal property given the wife was worth only $100 and the land $500, she took no benefit under the will; that she was entitled to have the personalty allotted to her as and for her year's support, and, therefore, received no more than by the law she was entitled to have from her husband's estate. We at first thought this fact relieved her of the duty to elect, but upon a careful examination of the works on Equity Jurisprudence, and many cases, we find no suggestion of any such exception to the general rule. The value of the personalty and her right to claim in some other way presented a strong reason to her for exercising her right to dissent from the will and thereby elect to take against it, but with a full knowledge of the facts she elected to prove the will and take out letters of administration, assuming thereby the duty of executing its provisions. If she had been misled or acted under misconception of the condition of the estate and her rights, she might have had relief and been permitted to exercise her right of election to dissent from the will, but there is no suggestion of that kind here. It has been held in New York that when one elected to take a benefit under the will, with burdens attached, he was bound although it turned out that the burden was greater than the benefit. Brown v. Knapp,79 N. Y., 136. "One who accepts a devise or bequest does so on condition of conforming to the will. No one is allowed to disappoint a will under which he takes a benefit, and everyone claiming under a will is bound to give full effect to the legal disposition thereof, (104) so far as he can, and when one is thus put to his election under a will it matters not that what he takes turns out to be greater or less in value than that which he surrenders." Caulfield v. Sullivan,85 N. Y., 153. Certainly this must be so where the person knows at the time she elects to take under the will the value of the property. In Syme v.Badger, 92 N.C. 706, Judge Badger, for the purpose of providing for the payment of a debt due his wife, devised and bequeathed to her real and personal property in payment of the debt. He left other property and other creditors. Mrs. Badger qualified as executrix and took possession of the property. It turned out that the property given her was of insufficient value to pay her debts. This Court held that by proving the will and qualifying as executrix she elected to take under the will, and was thereby precluded from resorting to other assets of her testator
to pay her debts. SMITH, C. J., quoting with approval the language of this Court in Mendenhall v. Mendenhall, 53 N.C. 287, said: "The act of qualifying as executrix and undertaking upon oath to carry into effect the provisions of the will is irrevocable." The authorities are cited in the opinion in that case. The principle has been approved by this Court in Allenv. Allen, 121 N.C. 328; Treadway v. Payne, 127 N.C. 436. We can see no distinction between the qualification of the wife as executrix and administratrix with the will annexed. In either case the will is offered for probate, and the party claims under it and assumes the duty of executing its provisions. It is argued that the election by Mrs. Nobles can not affect the rights of her creditors. That to permit her thereby to divest herself of her lands would be a fraud upon them. If the debts were in existence at the time of the death of her husband we should concur with the plaintiff in this view. The record does not disclose when the debts were contracted. For (105) the purpose of disposing of this appeal we cannot assume that the outstanding debts were contracted during coverture. If they were so contracted they could not as simple contract debts or bonds be a charge upon her land. Of course, if the debts were chargeable upon her land she could not, by her election to take other property of less value under her husband's will, permit the land to pass to other parties discharged of such debts. This question may be inquired into upon another trial. Her heirs at law and her personal representative, except in so far as the rights of existing creditors may be affected, are bound by her election. "An election once made by a party bound to elect, and under no misapprehension as to his rights, and with knowledge of the value of the properties to be affected by such election, is irrevocable, and binds the party making it and all persons claiming under him and also all donees under the instrument whose rights are directly affected by the election." Eaton Eq., 199; Cory v. Cory, 37 N.J. Eq., 198.
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
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.