McGehee v. McGehee

• Decision Date: 29 April 1925
• Docket Number: 385.
• Citation: 127 S.E. 684,189 N.C. 558
• Parties: MCGEHEE v. MCGEHEE ET AL.
• Court: North Carolina Supreme Court

127 S.E. 684

189 N.C. 558

MCGEHEE v. MCGEHEE ET AL.

No. 385.

Supreme Court of North Carolina

April 29, 1925

Appeal from Superior Court, Guilford County; Bryson, Judge.

Action by Laura S. McGehee against J. W. McGehee, executor, and another. Judgment for defendants, and plaintiff appeals. Error.

Heir to whom legacy given in lieu of interest in testator's real estate not put to election because will invalid as to real estate, where valid as to personalty.

Where husband's will valid as to real estate, but void as to personalty, widow may elect to take legacy under will or dissent therefrom and claim dower in real estate.

Civil action by Laura S. McGehee to recover the amount of a legacy given to her under her husband's will in lieu of her dower rights in his estate.

The case was heard on facts agreed. Henry W. McGehee died 8th September, 1919, domiciled in South Carolina, leaving him surviving a widow, the plaintiff, and several brothers and sisters, but no children. At the time of his death, his estate consisted of personal property in South Carolina North Carolina, and Virginia, and real estate in North Carolina, Virginia, and Maryland. He left a will, with only two witnesses, which is valid in North Carolina, Virginia and Maryland, but void in South Carolina, where three witnesses are required to make a valid testamentary disposition of property. The South Carolina statute (Civil Code 1912) applicable is as follows:

"Sec 3564. Devises Shall be in Writing, Attested by Three or More Witnesses. All wills and testaments of real and personal property shall be in writing, and signed by the party so devising the same, or by some other person in his presence and by his express directions, and shall be attested and subscribed in the presence of the said devisor, and of each other, by three or more credible witnesses, or else they shall be utterly void and of none effect."

The testator owned no real estate in South Carolina at the time of his death. The will on its face purports to dispose of all his property.

Item 2 is as follows:

"I give and bequeath to my wife, Laura S. McGehee, all of my furniture and household goods of whatever kind or description, and in addition I give and bequeath to her the sum of twenty thousand dollars ($20,000.00) to be used by her for her maintenance, support and comfort during her natural life, the same to be expended for said purposes in accordance with her personal wishes, and any amount of said sum, together with the interest and profits arising therefrom, which may remain unexpended at her death, I give to my nephew, Henry Richard McGehee, son of Dr. John W. McGehee. These bequests, together with the proceeds from certain policies of insurance on my life, amounting at this time to the aggregate sum of seven thousand five hundred dollars ($7,500) I give to my said wife Laura McGehee, in lieu of her dower rights in my estate, and with the hope and confident expectation that the same will be amply sufficient to provide for her support and comfort during her natural life, which is my wish and desire. I have caused the name of my said wife to be inserted as beneficiary in said policies of insurance on my life, and it is my will that she shall have the proceeds thereof in her own right, to be expended or disposed of in accordance with her wishes, without any limitations or restrictions whatever, and should any of said policies lapse, or for any reason not be paid at my death, it is my will that my executor shall pay her the amount of such shortage or deficiency out of any other money coming into his hands belonging to my estate, it being my wish and desire that she shall have the full sum named in this item."

The will also provides for the sum of $20,000 to be placed with Dr. John W. McGehee in trust for his minor son, Henry Richard McGehee.

Letters of administration were issued to the plaintiff and Dr. John W. McGehee in South Carolina, and they have administered the personal estate under the intestate laws of that state. The executor named in the will has qualified in the states of North Carolina, Virginia, and Maryland, where the will is admittedly valid.

The present controversy is primarily between the widow and Richard Henry McGehee, the beneficiary of a special legacy. The widow has received, under the intestate laws of South Carolina, one-half of the personalty wherever located, amounting to about $36,000, and the other half passed to the brothers and sisters of the deceased. The "furniture and household goods" did not pass under the will, but were sold and the proceeds administered under the intestate laws of the domiciliary state, or rather the widow was required to account for the value of same in the settlement of the estate.

The plaintiff contends that she is entitled to claim her legacy, given "in lieu of her dower rights," and to have it paid from a sale of the real property situated in those states where the will is valid. Richard Henry McGehee, the beneficiary of a special legacy, denies the widow's right to claim under the will, to the extent that it may defeat him of his legacy. The court below took the defendant's view of the matter and rendered judgment accordingly. The plaintiff appeals.

King, Sapp & King, of Greensboro, and Swink, Clement & Hutchins, of Winston-Salem, for appellant.

J. R. Joyce, of Reidsville, Manly, Hendren & Womble, of Winston-Salem, for appellees.

STACY, C.J. (after stating the facts as above).

It is conceded that the will of Henry W. McGehee is void in South Carolina and valid in North Carolina, Virginia, and Maryland. The case pivots on whether the plaintiff is entitled to claim under, or required to take against, her husband's will in North Carolina. In other words, do the facts, properly appearing of record, call for the application of the doctrine of equitable election as between the legacy and a distributive share of the personal property? We think not.

"Election," in the sense it is used in courts of equity, says Judge Story, "is the obligation imposed upon a party to choose between two inconsistent or alternative rights or claims, in cases where there is a clear intention of the person from whom he derives one, that he should not enjoy both. Every case of election therefore presupposes a plurality of gifts or rights, with an intention, express or implied, of the party who has the right to control one or both, that one should be a substitute for the other. The party who is to take has a choice; but he cannot enjoy the benefits of both." 3 Story's Eq. (14th Ed.) p. 113; Sigmon v. Hawn, 87 N.C. 450. The doctrine of election, as applied to the law of wills, simply means that one who takes under a will must conform to all of its legal provisions. See Elmore v. Byrd, 180 N.C. 120, 104 S.E. 162, where the subject is fully discussed, but without undertaking to reconcile the divergent authorities. Indeed, such an undertaking would be a herculean, if not a hopeless, task.

To avoid confusion, the one circumstance which must be held clearly in mind is that the plaintiff took nothing in South Carolina against the will and nothing under it. The testator died intestate as to his personal property, and therefore without testamentary intent as to its disposition. The situs of such property is at the domicile of the owner, hence its name. Mobilia sequuntur personam. Trust Co. v. Doughton, 187 N.C. 272, 121 S.E. 741. The will is void in South Carolina, the domiciliary state. Title to the personal property was vested in the distributees under the South Carolina law, and not by virtue of the will. The plaintiff had no alternative as to the personal property. She could not take her distributive share of it under the will, when the will failed to dispose of any of the personal property. She could only claim it under the law, or decline to take it, and, upon her refusal to accept her distributive share of the personal property, what would become of it? There is no will by which it may be given to others. "What the testator has left undisposed of, the law must dispose of for him." Gaston, J., in Ford v. Whedbee, 21 N.C. 21.

The defendants do not contend that the plaintiff is required to elect between her legacy and an escheat. They only say that, if she claim her legacy under the will to the prejudice of Henry Richard McGehee, so much of the property received by her from her husband's estate should be sequestered in equity and surrendered to the disappointed devisee or legatee so as to compensate him for the disappointment. Dunshee v. Dunshee, 263 Ill. 196, 109 N.E. 1100; Bispham Eq. (9th Ed.) 499; Eaton's Equity, 182.

It is not strictly the doctrine of election, for which the defendants contend so much, as it is the principle of equitable compensation sometimes ingrafted upon this primary doctrine of election. Ker v. Wauchope, 1 Bligh, 25. The principle sought to be envoked by the defendants was stated by Sir Thomas Plummer, M. R., in Gretton v. Howard, 1 Swanst. 409, as follows:

"I conceive it to be the universal doctrine that the court possesses power to separate the estate till satisfaction has been made, not permitting it to devolve in the customary course. Out of that sequestered estate so much is taken as is required to indemnify the disappointed devisee. If insufficient, it is left in his hands. In the case to which I have referred, Lord Loughberry uses the expression that the court 'lays hold of what is devised, and makes compensation out

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