Ginn v. Edmundson

• Decision Date: 07 March 1917
• Docket Number: (No. 112.)
• Court: North Carolina Supreme Court
• Parties: GINN et al. v. EDMUNDSON.

91 S.E. 696

(173 N.C. 85)

GINN et al.

v.EDMUNDSON.

(No. 112.)

Supreme Court of North Carolina.

March 7, 1917.

Appeal from Superior Court, Wayne County; Cox, Judge.

Action by Mary J. Ginn and others against B. G. Edmundson. Judgment for plaintiffs, and defendant excepts and appeals. Affirmed.

This is an action to recover the purchase price of a tract of land which the plaintiff, Mary J. Ginn, has contracted to sell to the defendant. The defendant refused to pay the purchase money, and to accept the deed upon the ground that the plaintiff has not a good title to the land. On the 30th day of September, 1909, John B. Exum and wife conveyed the land in controversy by deed to J. Hiram Ginn and his wife, the plaintiff, Mary J. Ginn. In April, 1910, the said J. Hiram Ginn died, leaving the plaintiff Mary J. Ginn, surviving him, but prior to his death he and his wife executed jointly a will in which the land in controversy was devised to several children of the said Hiram Ginn and wife, and in which nothing was devised to the said Mary J. Ginn, or to the said J. Hiram Ginn. After the death of the said J. Hiram Ginn the said Mary J. Ginn refused to abide by said will, repudiated the same, and contracted to sell the land devised therein to the defendant, and has tendered him a deed, which he has refused to accept, because, as he alleges, the plaintiff has no title.

Dickinson & Land, of Goldsboro, for appellant.

W. T. Dortch, of Goldsboro, for appellees.

ALLEN, J. [1] The deed to J. Hiram Ginn and his wife, Mary, conveyed an estate by the entireties with the right of survivorship (Motly v. Whitmore, 19 N. C. 537; Bruce v. Nicholson, 109 N. C. 204, 13 S. E. 790, 26 Am. St.. Rep. 562), and the plaintiff, Mary J. Ginn, being the survivor, is the owner of the land in controversy and can convey a good title to the defendant, Unless prevented from doing so by the signing of the joint will with her husband.

A joint or conjoint will is a testamentary instrument executed by two or more persons, in pursuance of a common intention, for the purpose of disposing of their several interests in property owned by them in common, or of their separate property treated as a common fund, to a third person or persons, and a mutual or reciprocal will is one in which two or more persons make natural or reciprocal provisions in favor of each other.

In many of the early cases it was held that there could not be a valid joint or mutual will, but—

"it is now well settled by the overwhelming weight of authority both in England and the United States that such wills may be valid and may be admitted to probate like any other will unless revoked." 40 Cyc. 2110 et seq.

In Clayton v. Liverman, 19 N. C. 558, our court adhered to the earlier authorities, but this case was overruled in the Davis Will Case, 120 N. C. 9, 26 S. E. 636, 38 L. R. A. 289, 58 Am. St. Rep. 771, which was approved at the last term in the Cole Will Case, 171 N. C. 74, 87 S. E. 962, and joint and mutual wills are now recognized in this state as valid...