Walston v. ATLANTIC CHRISTIAN COLLEGE (INC.)

*133 Denny, C.J. 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 co-executors 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. 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 contractural intent on the part of the plaintiff that affected the title to the real estate described in the complaint? 2. Did the terms of his 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 A.L.R., 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 j oint or conj oint 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 *134 persons make mutual or reciprocal provisions in favor of each other. “ * * * (I)n the absence of contract based upon consideration, such wills may be revoked at pleasure. íf i:' * “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. * * * (T)o enable one to invoke the intervention of equity, it is not sufficient that there are wills simultaneously made, and similar in their reciprocal provisions; but the existence of a clear and definite contract must be alleged and proved, either by proof of an express agreement, or by unequivocal circumstances.” It is said in 97 CJS., Wills, section 1367, page 301: “ * * * (T)he agreement, in order to make the wills mutual, and to be enforceable, must be more than a mere agreement to make wills, or to make the wills which in fact are made: it must involve the assumption of an obligation to dispose of the property as therein provided, or not to revoke such wills, which are to remain in force at the death of the testators.” We hold that the provision in the respective wills of Walter L. Walston and his wife, Martha C. Walston, devising a life estate to the survivor, is not a provision that adversely affected the plaintiff’s title to the real estate involved in this appeal. The joint will of Walston and wife is tantamount to separate wills although contained in a single instrument. Moreover, these wills do not purport to be reciprocal or mutual with respect to the disposition of the remainder interest in the real estate involved . In the case of Benton v. Alexander, 224 N.C. 800, 32 S.E. 2d 584, this Court said: “ * * * The inference of election arises only from the assumption that the devise related to the land of the wife. The intention to put the donee to an election cannot be imputed to a testator who, as one of the supposedly alternate gifts, attempts to devise property which he mistakenly believes to be his own, and so describes it, whereas, in reality, it is the property of another. * * Its significance here cannot be ignored. It is strong evidence of the fact that the testator really supposed the land to be his own, or that he had a disposable interest in it, and was not conscious- * * * of an attempt to devise the land of his wife.” *135 Likewise, in Lamb v. Lamb, 226 N.C. 662, 40 S.E. 2d 29, this Court said: “ * * The intent to put the beneficiary to an election must clearly appear from the will. Rich v. Morisey, 149 N.C. 37, 62 S.E. 762; Bank v. Misenheimer, 211 N.C. 519, 191 S.E. 14; Page on Wills, Vol. 4, p. 1347. The propriety of this rule especially appears where, in derogation of a property right, the will purports to dispose of property belonging to the beneficiary -and, inferentially, to bequeath or devise other property in lieu of it. “Our train of reasoning is not complete without adding that if, upon a fair and reasonable construction of the will, the testator, in a purported disposal of the beneficiary’s property, has mistaken it to be his own, the law will not imply the necessity of election.” Elmore v. Byrd, 180 N.C. 120, 104 S.E. 162; Benton v. Alexander, supra; Byrd v. Patterson, 229 N.C. 156, 48 S.E. 2d 45. In our opinion, there is nothing in the will of Walter L. Walston from which it can be inferred that he intended to devise or bequeath anything to his wife in said will in lieu of her legal interest as a tenant by the entireties in the land involved. Therefore, we hold that she is the absolute owner of the land involved, irrespective of whether or not she revokes or affirms >the j oint will signed by her and her husband. In light of the facts in this case and the authorities cited herein and the conclusion reached, the judgment of the court below is Affirmed.