Olive v. Biggs

• Decision Date: 15 April 1970
• Docket Number: No. 31,31
• Citation: 173 S.E.2d 301,276 N.C. 445
• Parties: Robert M. OLIVE, Sr., Individually and as Executor of the Estate of Ruth Sedberry Olive, Deceased v. George BIGGS, et al.
• Court: North Carolina Supreme Court

Page 301

173 S.E.2d 301

276 N.C. 445

Robert M. OLIVE, Sr., Individually and as Executor of the Estate of Ruth Sedberry Olive, Deceased v. George BIGGS, et al.

No. 31.

Supreme Court of North Carolina.

April 15, 1970.

McCoy, Weaver, Wiggins, Cleveland & Raper, Fayetteville, for plaintiff-appellee.

Quillin, Russ, Worth & McLeod, Fayetteville, for defendants-appellants.

LAKE, Justice.

The document before us for construction is what is called a joint will. Ginn v. Edmundson, 173 N.C. 85, 91 S.E. 696; Atkinson on Wills, 2d ed., § 49; 57 Am.Jur., Wills, § 681. In order to determine its effect upon the present right of the surviving husband to convey an unencumbered fee simple estate in (a) land owned by the wife alone at the time of her death, (b) land then owned by them as tenants by the entireties, and (c) land owned, at the time of the wife's death, by the husband alone, we must determine first the effect of the document as a will and second its effect, if any, as a contract.

What is called a joint will, is, in effect, the separate will of each person signing it as a testator. Walston v. Atlantic Christian College, 258 N.C. 130, 128 S.E.2d 134; In Re Davis' Will, 120 N.C. 9, 26 S.E. 636; 57 Am.Jur., Wills, §§ 688, 735; Annot., 169 A.L.R. 9, 12. It is as if each of them had simultaneously executed separate, identical wills. Thus, though the document is not executed by one of the signers in the manner prescribed by the statute for the execution of wills, it may nevertheless be properly probated as the will of the other. In Re Cole's Will, 171 N.C. 74, 87 S.E. 962. Though revoked by one of the signers, it may continue in effect and be properly probated as the will of the other. In Re Will of Watson, 213 N.C. 309, 195 S.E. 772.

Nothing else appearing, either signer of a joint will may revoke it, in any manner permitted by statute, during the life of all of the persons signing as testator. In Re Davis' Will, supra. Upon the death of one of the persons so signing, without a valid revocation of the document by that person, it will be probated and given effect as his or her will. In Re Davis' Will, supra; In Re Will of Watson, supra. Thereafter, upon the death of another person so signing the document, without a revocation of it by him or her, it will then be probated and given effect as the will of that person. In Re Davis' Will, supra; 57 Am. Jur., Wills, § 682. Nothing else appearing, though one of the signers has died and the document has been probated as his or her will, the surviving signer may revoke it and, in that event, it cannot be probated as the will of such survivor. Ginn v. Edmundson, supra; In Re Davis' Will, supra. That is, the mere execution of a joint will does not establish the existence of a contract by the signers thereof so to dispose of their property. Ginn v. Edmundson, supra; In Re Davis' Will, supra; Atkinson on Wills, 2d ed., § 49; 57 Am.Jur., Wills, § 729. The intervening death of one of the signers, followed by the probate of the document as the will of such signer, nothing else appearing, does not impair the right of the survivor to convey property belonging to him at the time of such conveyance. Ginn v. Edmundson, supra.

Even where there is a contract between the testators not to revoke the joint will, the better view is that the revocation by the survivor is effective to prevent the probate of the instrument as the will of the survivor, leaving the disappointed legatees or devisees under the joint will to their rights, if any, for breach of the contract as beneficiaries thereof. Allen v. Bromberg, 147 Ala. 317, 44 So. 771; Stewart v. Todd, 190 Iowa 283, 173 N.W. 619, 180 N.W. 149, 20 A.L.R. 1272; Rastetter v. Hoenninger, 214 N.Y. 66, 108 N.E. 210; Williams v. Williams, 123 Va. 643, 96 S.E. 749; Doyle v. Fischer, 183 Wis. 599, 198 N.W. 763, 33 A.L.R. 733; Annot., 169 A.L.R. 9, 24, 47; 57 Am.Jur., Wills, § 690; Atkinson on Wills, 2d ed., § 49. Thus, in Stone v. Hoskins (1905), P. 194 (Probate Division, England), it was held that a later will, executed by the survivor in violation of his contract not to revoke the joint will, must be admitted to probate since, notwithstanding such contract, a will is always revocable, but a court of equity may impose a trust upon the devisee under the later will in favor of the beneficiary of such contract.

We shall consider below the effect of the document before us as a contract between Dr. and Mrs. Olive. Considered only as the will of Dr. Olive, it is revocable by him and does not impair his right to convey properties now owned by him, notwithstanding the fact that it was also executed by Mrs. Olive and has been probated as her will.

We turn now to the effect of this document as the will of Mrs. Olive. Obviously, the will of Mrs. Olive could not and did not devise to Dr. Olive property, which at the time of her death, was already owned by him alone or was owned by them as tenants by the entireties, nor could her will, nothing else appearing, limit his right to convey such properties after her death. Land owned by a husband and wife as tenants by the entireties is not owned by them in shares, but by the two considered as a separate legal being. Isaacs v. Clayton, Comr. of Revenue, 270 N.C. 424, 154 S.E.2d 532. Consequently, nothing else appearing, no interest in such property passes under the will of the first to die. Honeycutt v. Citizens National Bank, 242 N.C. 734, 89 S.E.2d 598. As Stacy, J., later C.J., said for the Court, in Davis v. Bass, 188 N.C. 200, 204, 124 S.E. 566, 'Upon the death of one, either the husband or the wife, the whole estate belongs to the other by right of purchase under the original grant or devise and by virtue of survivorship, and not otherwise, because he or she was seized of the whole from the beginning, and the one who died had no estate which was descendible or devisable.'

The record shows that in the preparation of this document Dr. and Mrs. Olive had the assistance of an attorney. It is reasonable to assume that when they executed it they were aware of this attribute of a tenancy by the entireties and, consequently, to assume, in the complete absence of any indication to the contrary, that they did not intend the provisions thereof relating to property owned by them as tenants by the entireties to be given effect as parts of the will of the first to die, but intended these provisions to become effective only as parts of the will of the survivor. It is equally reasonable to assume that neither of them intended the provisions of the document relating to the properties owned by the other alone to take effect, except as parts of the will of the owner thereof at the time of such owner's death. Therefore, considering the document as the will of Mrs. Olive, it does not show an attempt by her to devise property owned by her husband alone, or property owned by her and her husband as tenants by the entireties, unless she should survive her husband and thus be the owner of those properties at the time of her own death.

As Denny, J., later C.J., said for the Court, in Wachovia Bank & Trust Co. v. Burrus, 230 N.C. 592, 55 S.E.2d 183, '(W)here the devisor purports to devise property which belongs to the beneficiary, giving it to another, and also devises property of his own to the beneficiary, such beneficiary must make a choice between retaining his own property, which has been given to another, or take the property which has been given him under the terms of the will.'

This doctrine of election does not apply, however, unless the intent of the testator to put the beneficiary to an election clearly appears from the terms of the will. Burch v. Sutton, 266 N.C. 333, 145 S.E.2d 849; Lamb v. Lamb, 226 N.C. 662, 40 S.E.2d 29. For example, the doctrine of election does not come into play where it appears that the testator was under the mistaken belief that he or she had the right to devise the property of the person alleged to be under the duty to make the election. Breece v. Breece, 270 N.C. 605, 155 S.E.2d 65; Burch v. Sutton, supra.

In Walston v. Atlantic Christian College, supra, the testator was under the mistaken belief that he and his wife held title to land as tenants in common, whereas they actually held it as tenants by the entireties. He and his wife made a joint will purporting to devise this land to the survivor for life and then to Atlantic Christian College. The court found there was no evidence of a contract between them so to do. The will also bequeathed to the wife, absolutely, the personal property of the husband. Upon the death of the husband, the surviving wife brought an action to quiet title to the land. The court held that the wife was not put to an election since it could not be inferred that the husband intended to devise or bequeath anything to her 'in lieu of her legal interest as a tenant by the entireties in the land involved.'

We think it quite clear that the document before us shows upon its face that Mrs. Olive (and similarly, Dr. Olive) intended that thereby, if she died first, all the property of which she was the sole owner would pass to Dr. Olive as a devise from her and all of the property held by them as tenants by the entireties would pass to him by operation of law so that he would then be the owner of the whole, together with the lands of which he was already the sole owner. Conversely, it was her intent and expectation that, if he died first, she would be the sole owner of the whole of the three types of properties. In that event, and only in that event, she intended that the provisions in Items Three through Twelve, relating to the land owned by him alone or to the land owned by them as tenants by the entireties, would be given effect as parts of her will. This is not the intent which calls into play the doctrine of election; namely, the intent by her will to devise his property and, in lieu thereof, devise hers to him.

Thus, the doctrine of election has no application...