Wachovia Bank & Trust Co. v. Burrus
| Decision Date | 21 September 1949 |
| Docket Number | 23 |
| Citation | 55 S.E.2d 183,230 N.C. 592 |
| Parties | WACHOVIA BANK & TRUST CO. v. BURRUS et ux. |
| Court | North Carolina Supreme Court |
This is a civil action brought by the Wachovia Bank & Trust Company, as executor and trustee under the will of Mary Belle Burrus, against Robert Burrus and wife, Ora Lee Burrus to remove a cloud from title of a tract of land in Surry County, North Carolina, known as the Hollifield tract.
The property was conveyed to Dr. J. T. Burrus, and wife, Mrs. J T. Burrus, as an estate by the entirety, by deed dated 21 August, 1933, and duly recorded.
Dr Burrus died 8 June, 1936, leaving surviving him his widow, Mary Belle Burrus, who together with the Wachovia Bank & Trust Company, qualified as executors of the will of Dr. J. T. Burrus. Dr. Burrus in his last will and testament devised the property in question to his wife, Mary Belle Burrus, for life, and then to the defendant Robert Burrus, in fee simple.
It is admitted that Mrs. Burrus did not know the title to the Hollifield tract of land had been held by her and her husband previous to his death as tenants by the entirety, at the time she qualified as executrix, but she was informed of the status of the title, both as executrix and individually, and having such knowledge took a life estate under the will of her husband, Dr. Burrus, in other property which was worth in excess of $100,000.00. During the remainder of her life, she permitted the defendant, Robert Burrus, to remain in possession of the land now in dispute, without the payment of rent and exercised no control thereof except to list the land for taxes and to pay the taxes thereon.
Mary Belle Burrus died 8 September, 1947, leaving a last will and testament, which has been duly probated; by the terms of such will she devised certain real property, including the Hollifield tract, to the plaintiff in trust.
The parties waived a trial by jury and agreed that the trial judge might hear the case upon the pleadings, the will of Dr. J. T. Burrus, and the stipulations of counsel filed in the record, the pertinent parts of which are set forth above.
His Honor held that Mary Belle Burrus was required to elect as to whether or not she would waive any interest that she had in the lands described in the complaint, and take under the will, or dissent therefrom, and being of the opinion that she elected to take under the will, a decree was entered adjudging the defendants the owners in fee simple of the land in controversy. From this ruling the plaintiff appeals, assigning error.
Roberson, Haworth & Reese, High Point, for plaintiff.
Woltz & Barber, Mount Airy, amici curiae.
Allen & Henderson, Elkin, for defendants.
The sole question for us to determine is whether or not the doctrine of election is applicable to the facts in this case.
The doctrine of election is based upon the principle that a devisee or donee cannot take benefits under a will and reject its adverse provisions. Lamb v. Lamb, 226 N.C. 662 40 S.E.2d 29. The beneficiary under a will is not required to elect unless two benefits are presented which are inconsistent with each other. And when the beneficiary chooses to accept one of them such choice is tantamount to a rejection of the other. He will not be permitted to take under the will and against it. And where 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. By...
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