Lamb v. Lamb

• Decision Date: 06 November 1946
• Docket Number: 387.
• Citation: 40 S.E.2d 29,226 N.C. 662
• Parties: LAMB v. LAMB et al.
• Court: North Carolina Supreme Court

40 S.E.2d 29

226 N.C. 662

LAMB v. LAMB et al.

No. 387.

Supreme Court of North Carolina

November 6, 1946

[Copyrighted Material Omitted]

A.J Johnson, Jr., and Faircloth & Faircloth, all of Clinton for plaintiff, appellee.

Butler & Butler and P.D. Herring, all of Clinton, for defendants, appellants.

SEAWELL Justice.

The trial court, correctly construing the wil of W.B. Lamb, held that the plaintiff, his widow, was not thereby put to her election with respect to the lands in controversy, and that her right of survivorship therein was not defeated. In this we concur.

Any attempt to list, by exhaustive rule, the conditions which give rise to the duty or legal necessity of election, must be left to the text-writer or encyclopedist. Confining ourselves to the fact of this case and the situation they present, which is not wholly novel in type, we repeat some principles which we believe to be applicable and controlling.

The doctrine of election, as applied to wills, is based on the principle that a person cannot take benefits under the will and at the same time reject its adverse or onerous provisions; cannot, at the same time, hole under the will and against it. Benton v. Alexander, 224 N.C. 800, 32 S.E.2d 584, 156 A.L.R. 814; McGehee v. McGehee, 189 N.C. 558, 127 S.E. 684; Weeks v. Weeks, 77 N.C. 421. The intent to put the beneficiary to an election must clearly appear from the will. Rich v. Morisey, 149 N.C. 37, 62 S.E. 762; Commercial Nat. Bank v. Misenheimer,i 211 N.C. 519, 191 S.E. 14, 110 A.L.R. 1310; Page on Wills, Vol. 4, p. 1347. The propriety of this rule especially appears where, in derogation of a property right, the will purports to dispose of property belonging to the beneficiary and, inferentially, to bequeath or devise other property in lieu of it.

Our train of reasoning is not complete without adding that if, 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. Benton v. Alexander, supra. That result follows as a corollary to the principles already laid down.

We should also say that as a matter of course there is no election implied or is indeed possible when the person whose right is adversely dealt with in the will receives from the testator no alternative benefit thereunder in lieu of that taken away. Ford v. Whedbee, 21 N.C. 16; McGehee v. McGehee, supra.

In the case at bar the preamble to the codicil states that the testator had, since the making of his will, sold the land referred to in item three thereof (not the land in controversy here) receiving $9,000 therefor, one-half of which belonged to the wife, the present plaintiff, by virtue of her one-half interest therein, and that he now desires to dispose of such of his half of the proceeds--$4,500--as might remain in his hands at his death. This is the legacy which appellants contend the plaintiff accepted, formally and legally, in lieu of her own land when she qualified as executrix to the will. But the burden rested upon the defendant to adduce some evidence of a condition confronting the plaintiff which put her to an election at the time she presented the will for probate and qualified as executrix; and, in view of the conditional nature of the bequest, the court cannot assume that any part of it remained undisposed of or spent at the time of testator's death. The defendants offered no evidence. Ordinarily, time is no fixative when applied to cash assets.

But we are of opinion that defendants' cause must fail in...