Allen v. Allen

• Decision Date: 24 December 1897
• Citation: 28 S.E. 513,121 N.C. 328
• Parties: ALLEN et al. v. ALLEN et al.
• Court: North Carolina Supreme Court

28 S.E. 513

121 N.C. 328

ALLEN et al. v. ALLEN et al.

Supreme Court of North Carolina

December 24, 1897

Appeal from superior court, Halifax county; Robinson, Judge.

Action by A. A. Allen and others against R. J. Allen, in which Sterling Johnston was allowed to intervene as a defendant. From a judgment in favor of defendants, plaintiffs appeal. Reversed.

Faircloth C.J., and Douglas, J., dissenting.

Where a testator, after making the will, gives a devisee, who is nominated in the will as executor, a deed of property devised to the latter charged with the payment of a certain sum, such devisee, by qualifying as executor, elects to take under the will, and the deed is of no effect.

MacRae & Day, for appellants.

R. O Burton, for appellees.

MONTGOMERY J.

The last will and testament of M. A. Allen, who died in Halifax county on the 9th of September, 1874, was duly admitted to probate in the December following. The will contained a devise to R. J. Allen, the testator's son, of a tract of land of about 200 acres, and a legacy of $940. In a codicil the testator uses the following language: "Whereas, it is my desire that one of my sons should live at my old residence, who bears my family name, in order, therefore, to place it in their power to do so, I make the following provision in will: If my son R. J. Allen will agree to live at my old residence that I have left my wife during her life at her death, if my son R. J. Allen shall think proper to pay $2,000 for all the land and residence that I left to my wife during her life, he shall have the privilege of doing so, and he shall have a fee-simple right and title to it, to him and his heirs forever." The four children of the testator were named executors, but R. J. Allen alone qualified. The testator, in May, 1872,--more than a year after the date of the execution of the will,--made and delivered to R. J. Allen a deed in fee to the tract of land mentioned in the codicil. The grantee took possession of the tract of land in 1876, and in 1893 executed a mortgage upon the same to Sterling Johnston, one of the defendants, to secure a debt of $1,520 due to Johnston.

The first question presented for consideration is whether the simple qualification of R. J. Allen as executor of the will of his father was ipso facto an election by the son to take under the provisions of the will. If such qualification amounts to such election, then the interest of the son in the tract of land described in the codicil is, so far as the son is concerned, derived from the codicil, and the deed is of no avail to him. This is an important question, and is raised in its naked simplicity for the first time in this state. Under the common law the answer to the question was ready enough if not entirely satisfactory. By the act of qualification the executor became vested with the whole personal estate, and, after the payment of debts and legacies, was entitled to the surplus, unless it appeared on the face of the will that the testator did not intend for the executor to have it. Therefore, and under that system, it is manifest that the act of qualifying as executor and taking the oath of office to execute the provisions of the will was irrevocable on his part, and the executor had to proceed to execute the will in all its parts and in its entirety. But the reason of the common law is of no force now, for executors, after the debts and legacies are paid, are trustees of the residuum for the next of kin. But there is another view which leads us to the same conclusion as that of the common law, and, as that view has been considered by this court, we will examine the decisions in reference to the matter. In Mendenhall v. Mendenhall, 53 N.C. 287, the court decided that a widow who qualified as executrix of her deceased husband, and took upon herself the execution of the will, waived her right to dissent. The chief justice (Pearson), for the court, mentioned four considerations, all or any of which he said seemed to the court sufficient to sustain the ruling. Three of these considerations apply with peculiar force to the cases concerning widows in their relations with the estates of their deceased husbands, but one of them appears to us of general application. The chief justice said in that case: "Upon qualifying, she assumes the duties and undertakes on oath to carry into effect the several provisions of the will, and it is inconsistent afterwards to do an act which defeats, or in a great degree deranges, the provisions of the will, and disappoints the intention of the testator therein expressed." This ruling is affirmed in Syme v. Badger, 92 N.C. 706. In Yorkly v. Stinson, 97 N.C. 236, 1 S.E. 452, the opinion in reference to the cases of Mendenhall v. Mendenhall and Syme v. Badger, supra, is in the following language: "But in these cases the estoppel was held to apply to a widow who was appointed to execute the will, and, of course, in all of its provisions, and who accepted the office and undertook to carry out its directions with which the legal effect of a dissent was wholly inconsistent. The subject is considered in the last-cited case and leaves nothing now to be added." It seems to us, from the reasoning in the cases above cited (although in those cases the personal representatives were widows qualifying upon the estates of their deceased husbands under wills), that this court has decided that the same principle would apply to the qualification of any person as executor; that the taking of the oath of the office of executor is irrevocable on his part; that he must execute the will in all of its provisions; and that, therefore, by such qualification he makes his election to take under the will where the testator has disposed of property belonging to the executor, and at the same time and in the same will has given to the executor property of the testator.

The executor R. J. Allen having elected, then, by his qualification, to take the land described in the codicil, the effect of this upon the interest of the defendant Johnston is next to be considered,--the question involving the doctrine of constructive notice. Did Johnston have such notice of the will of...