Treadaway v. Payne

• Decision Date: 22 December 1900
• Citation: 127 N.C. 436,37 S.E. 460
• Court: North Carolina Supreme Court
• Parties: TREADAWAY et al. v. PAYNE et al.

127 N.C. 436

37 S.E. 460

TREADAWAY et al.

v.PAYNE et al.

Supreme Court of North Carolina.

Dec. 22, 1900.

WILLS—RIGHTS OF DEVISEES—ESTOPPEL— ELECTION.

1. One who has executed the duties of executor and rendered a final accounting is estopped from denying his qualification as such, though the records do not show that he ever qualified.

2. A legatee elects to take under the will by procuring the probate thereof and executing the duties of executor, and hence cannot take devised property under a deed executed by the testator after making the will.

Appeal from superior court, Madison county; Coble, Judge.

Action by Elizabeth Treadaway and others against James Payne and another. Judgment for defendants, and plaintiffs appeal. Reversed.

W. W. Zachary, for appellants.

J. M. Gudger, Jr., for appellees.

MONTGOMERY, J. This action seems to have been commenced under chapter 6 of the Acts of 1893, but was tried as an action for the possession of the land mentioned in the complaint. The plaintiff Tempie Lunsford claimed the land under the will of her father, Daniel Payne, which was probated on the 30th day of September, 1889, before the clerk of Madison county; the testator having died on the 5th of the same month and year. The defendants' claim to the land is under a deed executed by the testator a few months before his death, and registered after his death. The plaintiff, in her complaint, alleged that the deed was a forgery on the part of the grantees; but the jury found that issue In favor of the defendants, under proper instructions from the court The main contention of the plaintiff in this court is that the deed is of no force and effect as to R. F. Payne, because he was a large beneficiary, devisee, and legatee under the will of the testator, and himself probated the will and acted as executor, and therefore elected to take under the will. On the trial R. F. Payne admitted that he brought the witnesses before the clerk and had the will probated, Mr. Pritchard being employed as his attorney, and that he took charge of the estate under the will; that he sold the personal property at public sale as executor; that as executor, he charged in his account for the expenses of 25 trips to Marshall on business as executor; that he took a note from a debtor of the testator's estate to himself as executor, and received payment on the same as executor; that he collected all of the debts due to the estate that could be collected, and paid all the debts of the estate; that he...