Hoggard v. Jordan

• Decision Date: 27 February 1906
• Citation: 53 S.E. 220,140 N.C. 610
• Parties: HOGGARD v. JORDAN et al.
• Court: North Carolina Supreme Court

53 S.E. 220

140 N.C. 610

HOGGARD v. JORDAN et al.

Supreme Court of North Carolina

February 27, 1906

Appeal from Superior Court, Bertie County; Peebles, Judge.

Petition by J. W. Hoggard, as administrator of Mary C. Jordan, against C. E. Jordan and others, to sell lands for the payment of debts. From a judgment denying the petition, petitioner appeals. Affirmed.

Where a husband devised to the wife for life certain real estate of which the wife was a part owner, with remainder over to their children, and the widow took possession, after qualifying as executrix, and remained in possession nine years, until her death, and the children acquiesced in the will for eight years thereafter, there was an election, so that a petition to sell a portion of the lands as the property of the widow to make assets to pay her debts after her decease could not be maintained.

This was a petition by the administrator of Mary C. Jordan deceased, to sell land for the purpose of making assets with which to pay debts. The defendants are the devisees of Jesse N. Jordan and heirs at law of his widow Mary C. The petitioner alleged that his intestate Mary C. died seised of the lands described in the petition. This was denied by defendants. The cause was, upon issue thus joined transferred to the Civil Issue Docket for trial. By consent his honor found the facts. On the 18th day of May, 1877, Mary C. Jordan, being the owner of a share of a tract of land descended from her father, joined with her husband Jesse N Jordan, in a conveyance of said share to her sister, Florence Hancock, and her husband R. E. Hancock. On the same day the said Florence and her husband joined in a conveyance of her interest in said land to the said Mary C. and her husband Jesse N. Jordan, who died during the month of October 1887, leaving a last will and testament nominating the said Mary C. executrix thereto. Item 1 of his will is in the following words: "I leave to my beloved wife, Mary Catherine, during her natural life, my entire personal property of every kind and description, to use as she may think best, together with all of my real estate, consisting of the Hancock tract of land and the two stores and lots situated in Lewiston, to lease or rent as she may think best for the interest of herself and younger children." He gave the same property upon the death of his wife to his children, who were also the children of his wife, Mary C. The value of the personal estate of said Jesse N. was, at the time of his death, $200. The said Mary C. proved the will and qualified as executrix thereto, taking into her possession the personal estate and occupying the land until her death during the month of March 1896. She left no will. Petitioner qualified as her administrator, January 4, 1904. She was indebted in the sum of $75. His honor upon the foregoing facts being of the opinion that the said Mary C. took under the will but a life estate in the lands rendered judgment for defendants, to which they excepted and appealed.

Winston & Matthews, for appellant.

Day, Bell & Dunn and J. B. Martin, for appellees.

CONNOR J. (after stating the case).

We had occasion to consider the general principle involved in this record in the case of Tripp v. Nobles, 136 N.C. 99, 48 S.E. 675, 67 L. R. A. 449; and upon a rehearing in 138 N.C. 747, 51 S.E. 1038. The plaintiff insists that a distinction may be drawn between that case and the facts presented in this appeal; he also suggests that the very able dissenting opinion "is more in harmony with decisions and justice." It must be conceded that in some cases, there is an apparent hardship in the application of the well-settled doctrine of election, but a careful examination of the numerous cases to be found in our own and the English courts show a solicitude on the part of the judges to so administer the doctrine that the rights of all persons interested shall be protected; decrees are so molded, that, when possible, compensation is directed to be made and forfeitures of estates prevented. The doctrine of election between inconsistent dispositions of property in wills and other instruments is peculiarly of equitable origin and its administration in the jurisdiction of courts of equity "by reason of the inflexible, inelastic, and cramped procedure of the common-law courts." An examination of the will of Jesse N. Jordan made but a few months prior to his death discloses a wise plan for the disposition of his estate, by which his widow is enabled to use both her own and his property "for the best interest of herself and younger children." To this end he gives her a life estate in the Hancock land to which it is not improbable he thought he was entitled to one-half, "two stores and lot in Lewiston, N. C." and his entire personal estate. It will be noted that, at the time of his death, four of his children were under 14 years of age and all were minors. At her death he gives to each child a share in the property. It was stated on the argument that, she, for some reason, did not get the stores. We are concluded in this respect by the record--the petition states that she died seised of the Hancock land and "two stores and lot situate in Lewiston, N. C." His personal estate was worth but $200, to all of which she would have been entitled as her year's support. There is nothing in the record to show the value of the land or the stores, nor that the latter did not belong to the testator. We are of the opinion that upon the facts found, Mrs. Jordan was put to her election, either to claim under the will as a whole, or to claim against it, surrendering any other than her dower right in the stores, and her year's support in the personalty. She knew the contents of the will, proved it and qualified as executrix, remained in possession of the property until her death in 1896, and her children went into possession under the will. Thus for nine years she, by her conduct in proving the will and qualifying and by using the property, acquiesced in the disposition made by her husband. For eight years since her death the only persons who could have been benefited by electing to take as her heirs, and against the will, have likewise acquiesced in it. Certainly, after so long acquiescence in the provisions of the will, her administrator, against the consent of her real representatives, will not be permitted to make an election for her by simply filing a petition for the sale of the land. Her conduct brings the case clearly within the observation of Lord Hardwicke, in Tomkins v. Ladbroke, 2 Vesey, Chan. 593, that the courts will not "disturb things long acquiesced in by families upon the foot of rights, which those in whose place they stand, never called in question." The Vice Chancellor in Dewar v. Maitland, L. R. 2 Eq. 834, said: "Although the court compels persons to elect, yet election itself is a voluntary act. The doctrine has been established for the peace of families and of the public, that if property has been long enjoyed according to a certain mode and rights, this court will be very slow to disturb such enjoyment. The heir in this case chose to enjoy the property devised by his father--whether properly devised or not--upon the footing of his will." In Worthington v. Wigginton, 20 Beav. 67, the question was discussed by Sir John Romilly, M. R., saying: "Two things are essential to constitute a settled and concluded election by any person who takes an interest under a will, which disposes of property under that will. There must be, in the first place, clear proof that the person put to his election was aware of the nature and extent of his rights; and in the second place, it must be shown that, having that knowledge, he intended to elect. In this case, I think that the widow was aware of what her rights were; she was fully aware of the contents of her husband's will, she was the sole executrix named in it and had proved it; and she had made use of her character of executrix to enforce payment of money due to her late husband and to arrange with the landlord for the surrender of the five leaseholds. She must, therefore, on the one hand, have known that her husband had by his will, specifically bequeathed the stock standing in their joint names, and that by it he gave her only a life interest in that stock ***. She knew that the will disposed of her property, she knew that she could withdraw it from the operation of the will."

The discussion and review of the authorities are full and exhaustive. In Adsit v. Adsit, 2 Johns. Ch. 448, 7 Am. Dec. 539, Chancellor Kent said: ""Taking possession of property under a will or other instrument and exercising unequivocal acts of ownership over it for a long time, will amount to a binding election." Penn v Gugginheimer, 76 Va. 839; Pom. Eq. 513; Fetter, Eq. 56. We have discussed the question upon the theory that the widow...