Walston v. Atlantic Christian College (Inc.), 259

• Decision Date: 07 November 1962
• Docket Number: No. 259,259
• Citation: 128 S.E.2d 134,258 N.C. 130
• Parties: Martha C. WALSTON v. The ATLANTIC CHRISTIAN COLLEGE (INCORPORATED).
• Court: North Carolina Supreme Court

Page 134

128 S.E.2d 134

258 N.C. 130

Martha C. WALSTON v. The ATLANTIC CHRISTIAN COLLEGE (INCORPORATED).

No. 259

Supreme Court of North Carolina.

Nov. 7, 1962

Lucas, Rand & Rose, Wilson, for defendant appellant.

Gardner, Connor & Lee, Wilson, for plaintiff appellee.

DENNY, Chief Justice.

It is evident that at the time Walter L. Walston and his wife, Martha C. Walston, executed a joint will, both of them were under the impression that they owned the real property involved as tenants in common. It is further evident that the plaintiff was under that impression when the inheritance tax return was filed by the coexecutors of Walter L. Walston's estate. Even so, this misconception with respect to the manner in which the plaintiff and her husband held title to the real property involved at the time the joint will was executed did not change in any respect the manner in which title was actually held by them. The deed from Walston and wife to Lucas Trustee, not having been executed pursuant to the requirements of G.S. § 52-12, was a nullity. It follows, therefore, that the deed from Lucas, Trustee, purporting to reconvey the property to Walston and wife as tenants in common was ineffective to convey title. Honeycutt v. Citizens National Bank, 242 N.C. 734, 89 S.E.2d 598.

Since the deed from Walston and wife to Lucas, Trustee, was not executed and acknowledged as required by G.S. § 52-12, the estate by the entireties was not destroyed, and upon the death of Walter L. Walston, his wife, Martha C. Walston, nothing else appearing, became the sole owner as surviving tenant, with no right, title or interest of any kind passing to his executors for the benefit of creditors or devisees under his will. Honeycutt v. Bank, supra, and cited cases.

1. Did the court commit error in finding as a fact that under the terms of the joint will in question there was no contractual intent on the part of the plaintiff that affected the title to the real estate described in the complaint? 2. Did the terms of this will impose the doctrine of election upon the plaintiff? The court below answered both questions in the negative, and we concur.

It is stated in Anno--Joint, Mutual, or Reciprocal Wills, 169 ALR at page 22, 'The general rule is that a will jointly executed by two persons, being in effect the separate will of each of them, is revocable at any time by either one of them, at least where there is no contract that the joint will shall remain in effect * * *,' citing Ginn v. Edmundson, 173 N.C. 85, 91 S.E. 696.

In Ginn v. Edmundson, supra, where a husband and wife made a joint will disposing of property held as tenants by the entireties, it was held that the survivor could revoke the will at pleasure and take the property free of the will. The Court said: 'A joint or conjoint will is a testamentary instrument executed by two or more persons, in pursuance of a common intention, for the purpose of disposing of their several interests in property owned by them in common, or of their separate property treated as a common fund, to a third person or persons, and a mutual or reciprocal will is one in which two or more persons make natural or reciprocal provisions in favor of each other.

'* * * (I)n the absence of contract based upon consideration that such wills may be revoked at pleasure. * * *

'The will before us belongs to the class of joint or conjoint wills, as it is a disposition of the property owned by the husband and wife by the entireties to third persons, and there is no reason why the wife could not, after the death of her husband, revoke the will and dispose of the property as if it had not been signed by her.'

In Clements v. Jones, 166 Ga. 738, 144 S.E. 319, the Court said: 'The general rule is that, if two persons execute wills at the same time, either by one or two instruments, making reciprocal dispositions in favor of each other, the mere execution of such wills does not impose such a legal obligation as will prevent revocation. * *...