North Carolina Nat. Bank v. Barbee, 462

• Decision Date: 19 July 1963
• Docket Number: No. 462,462
• Court: North Carolina Supreme Court
• Parties: NORTH CAROLINA NATIONAL BANK, Guardian of Clabron Ann Barbee, Ronald Mills Barbee and Carolyn Louise Barbee, Minors, v. Annie Mills BARBEE, Executrix of the Estate of C. J. Barbee, Deceased, and Annie Mills Barbee, Individually.

Page 666

131 S.E.2d 666

260 N.C. 106

NORTH CAROLINA NATIONAL BANK, Guardian of Clabron Ann

Barbee, Ronald Mills Barbee and Carolyn Louise

Barbee, Minors, v. Annie Mills BARBEE, Executrix of the Estate of C. J. Barbee, Deceased, and Annie Mills Barbee, Individually.

No. 462

Supreme Court of North Carolina.

July 19, 1963

Robert L. McMillan, Jr., Raleigh, for plaintiff appellant.

Charles O'H. Grimes and M. Alice Hunt, Raleigh, for defendant appellee.

SHARP, Justice.

In the vast majority of jurisdictions the rule is that merely qualifying as executor or administrator c. t. a. is not sufficient, standing alone, to constitute an election to take under the will but is a factor tending to establish such an election which must be considered in conjunction with all the other circumstances. 57 Am.Jur., Wills, § 1539; Anno.--Wills--Election by Beneficiary, 166 A.L.R. 316, 320.

The early cases in North Carolina held that if a wife qualified as executrix or administratrix c. t. a. of her husband's will, the act of qualifying and undertaking upon oath to carry out the provisions of the will was an irrevocable election to abide by it. Mendenhall v. Mendenhall, 53 N.C. 287; Hoggard v. Jordan, 140 N.C. 610, 53 S.E. 220, 4 L.R.A.,N.S., 1065. This same rule applied to any other beneficiary who qualified as executor or administrator c. t. a. Allen v. Allen, 121 N.C. 328, 28 S.E. 513; Treadaway v. Payne, 127 N.C. 436, 37 S.E. 460. An error in the legal consequences of a widow's decision was immaterial where there had been no imposition upon her. Syme v. Badger, 92 N.C. 706. However, where she was misinformed by those interested in the estate and had taken nothing under the will, she was allowed to dissent within the time provided in spite of having qualified as executrix. In Re Shuford's Will, 164 N.C. 133, 80 S.E. 420. Even where she herself owned the realty, and was entitled under the law to the personal property, given her by the will of her husband, her qualification as administratrix c. t. a. was held to estop her executor from afterwards claiming the property. Tripp v. Nobles, 136 N.C. 99, 48 S.E. 675, 67 L.R.A. 449.

In recent years North Carolina has modified the strict rule of the earlier cases and mere qualification as executor will not now constitute an election unless the executor was under the necessity of making an election.

In Elmore v. Byrd, 180 N.C. 120, 104 S.E. 162, a husband devised to his wife all his personal property and 'the lands of which he was seized' for life with remainder to his children and grandchildren. W was appointed executrix and qualified. H owned a one hundred and fifty acre tract of land. W owned a one hundred and twenty-five acre tract which she conveyed to H four months prior to his death by a deed void because her private examination was not taken. The defendants contended that by qualifying as executrix, she had forfeited her right to claim the one hundred and twenty-five acres. The Court rejected this contention. Assuming, it said, that her qualification as executrix would be sufficient as an election, no election was required. H had erroneously believed the title to the one hundred and twenty-five acres had passed to him; it had not. He was not seized of the land and therefore his intention to devise it did not appear from the will. The Court also said, quoting from Pomeroy on Equity, 3d Ed., Vol. 1, § 475 at p. 792:

'The doctrine of election is not applicable to cases where the testator, erroneously thinking certain property is his own, gives it to a donee to whom in fact it belongs, and also gives him other property which is really the testator's own, for in such cases the testator intends that the devisee shall have both, though he is mistaken as to his own title to one.' ' (Byrd v. Patterson, 229 N.C. 156, 48 S.E.2d 45, is such a situation.)

In Benton v. Alexander, 224 N.C. 800, 32 S.E.2d 584, 156 A.L.R. 814, a husband devised to his wife all his real and personal property for life with remainder to A, and appointed W his executrix. H owned no interest in any lands except as a tenant by the entireties with W. His personalty was insufficient to pay his debts and W spent substantial sums of her own discharging them. In a contest between W and A over the lands, A contended that W had elected to take under the will when she qualified as executrix and that A owned the fee. Speaking for the Court, Justice Seawell reviewed the previous cases on the question and said: 'While decided differently in many jurisdictions, it is settled law in this State that, nothing else appearing, a beneficiary under a will, who is under the necessity of making an election, has exercised that privilege by offering the will as executor and procuring its probate.'

The question presented in the instant case, as it was in Benton v. Alexander, supra, is whether the widow was put to her election under the terms of her husband's will.

The doctrine of election has been stated and restated many times by this Court and, in the restating, it has been tempered somewhat. Melchor v. Burger, 21 N.C. 634; Isler v. Isler, 88 N.C. 581; Tripp v. Nobles, supra; Hoggard v. Jordan, supra. The following statement of the doctrine in Lovett v. Stone, 239 N.C. 206, 79 S.E.2d 479, 60 A.L.R.2d 780, has the full sanction of our decisions today:

'Election 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, the principle being that one shall not take any beneficial interest under a will, and at the same time set up any right or claim of his own, even if legal and well founded, which would defeat or in any way prevent the full effect and operation of every part of the will.' (Italics ours.)

See also Sandlin v. Weaver, 240 N.C. 703, 83 S.E.2d 806; Taylor v. Taylor, 243 N.C. 726, 92 S.E.2d 136.

The cases have always held that there was a presumption that a testator meant only to dispose of what was his own and that all doubts would be resolved 'so that the true owner, even though he should derive other benefits under the will, will not be driven to make an election.' However, if the will discloses a manifest purpose to require an election, then it is immaterial whether he...