Perkins v. . Isley

DeNNY, J. This appeal may be determined by answering the following questions: 1. Did Irene Perkins Isley renounce and refuse to take under the last will and testament of her mother, Mrs. Lalah Boss Perkins? 2. If so, did the renunciation have the effect of a conveyance which required the written assent of her husband, as provided in Art. X, sec. 6, of the Constitution of North Carolina, unless she was a freetrader under the provisions of G. S., 52-6? We think the first question must be answered in the affirmative and the second in the negative. The weight of authority is to the effect that a legatee or devisee under a will is not bound to accept a legacy or devise therein provided, but may disclaim or renounce his right under the will, even where the legacy or devise is beneficial to him, provided he has not. already accepted it. 69 C. J., Wills, sec. 2168, p. 674; 28 E. C. L., Wills, sec. 351, p. 352; Thompson on Wills, sec. 479, p. 567; Page on Wills, Vol. 4, secs. 1402 through 1404, p. 140,-et seq.; Sanders v. Jones, 347 Mo., 255, 147 S. W. (2d), 424; People v. Flanagan, 331 Ill., 203, 162 N. E., 848, 60 A. L. E., 305; In re Vasgaard’s Estate, 62 S. D., 421, 253 N. W., 453; Greely v. Houston, 148 Miss., 799, 114 So., 740; Schnoover v. Osborne, 193 Iowa, 474, 187 N. W., 20, 27 A. L. B., 465; Chilcoat v. Beid, 154 Md., 378, 140 A., 100; Albany Hospital v. Hanson, 214 N. Y., 435, 108 N. E., 812; Peter v. Peter, 343 Ill., 493, 175 N. E-, 846, 75 A. L. B., 890; In re Hodge’s Estate, 20 Tenn. App., 411, 99 S. W. (2d), 561; Coomes v. *798 Finegan (Iowa) (1943), 7 N. W. (2d), 729; Strom v. Wood, 100 Kan., 556, 164 Pac., 1100; Bouse v. Hull, 168 Md., 1, 176 A., 645; Seifner v-. Weller (Mo.) (1943), 171 S. W. (2d), 617; Daley v. Daley, 308 Mass., 293, 32 N. E. (2d), 286. The right to renounce a devise or legacy is a natural one and needs no statutory authorization. “An heir-at-law is the only person who, by the common law, becomes the owner of land without his own agency or assent. A title by deed or devise requires the assent of the grantee or devisee before it can take effect. But in the case of descent, the law casts the title upon the heir, without any regard to his wishes or election. He cannot disclaim it if he would.” 3 Washburn on Real Property (5th Ed.), sec. 4, p. 6; In re Kali’s Estate (Cal.) (1940), 102 Pac. (2d), 399; S. c., 108 Pac. (2nd), 401; In re Mahlstedt’s Will, 250 N. Y., 628. A beneficiary is presumed to have accepted a testamentary legacy or devise which is beneficial to him, but the presumption is rebuttable, and where the legatee or devisee renounces or .disclaims the legacy or devise in clear and unequivocal terms, in the absence of fraud, the renunciation or disclaimer is effective as of the date of the death of the testator. In such cases the devise or legacy is lapsed or void, and the gift passes under other provisions of the will, if there be any covering such contingency, otherwise it passes to the heirs at law under the statutes of intestacy. G. S., 31-42; lieid v. Neal, 182 N. C., 192, 108 S. E., 769; Bradford v. Lealce, 124 Tenn., 312, 137 S. W., 96; Sanders v. Jones, sufra; Qreely v. Houston, supra; Schnoover v. Osborne, supra; Peter v. Peter, supra. When a devisee accepts a devise, his title relates back to the death of the testator, but when there is a renunciation the devise never takes effect and title never vests in the devisee. In re Johnston’s Will, 298 N. Y., 957; Schnoover v. Osborne, supra. In most jurisdictions, however, it is held that a renunciation must be made within a reasonable time after the ..probation of the will. What is a reasonable time is usually left for judicial determination in the light of the facts and circumstances involved in each case. The appellant contends that she did not have the right to renounce the gift under her mother’s will, since the Security National Bank was appointed administrator c. t. a., at her suggestion. • We do not so hold. We are advertent to the decisions of this Court, which hold that ordinarily where a beneficiary under a will, who is under the necessity of making an election, is presumed to have made the election by offering the will as executor and procuring its probate. Benton v. Alexander, post, 800, and the cases there cited. Even though a widow is estopped in this jurisdiction from claiming dower, where she, as executrix, procures the probation of her deceased husband’s will, nothing else appear *799 ing, sbe could still renounce tbe gift under tbe will and take nothing from ber husband’s estate if sbe so desired. Brown v. Routzahn, 63 Fed. (2d), 914, 290 U. S., 641, 78 Law Ed., 557. In tbe instant case, tbe appellant was under no obligation to make an election, and tbe mere fact that sbe requested tbe appointment of an administrator c. t. a., in lieu of tbe executor named therein, who bad been adjudged incompetent, is insufficient to estop ber from renouncing ber rights under tbe will. Tbe appellant renounced ber rights under tbe will of ber mother, Mrs. Lalah Boss Perkins, in a clear and unequivocal manner and within a reasonable time. Sbe filed a verified petition in tbe office of tbe clerk of tbe Superior Court of 'Guilford County, in which sbe alleged that sbe was tbe sole beneficiary under tbe last will and testament of ber mother, Mrs. Lalah Boss Perkins, that sbe did not wish to take under tbe will, and further stated therein that “Sbe hereby does renounce all ber rights under said will.” Tbe renunciation set forth in tbe petition was sufficient to justify tbe orders of tbe clerk and tbe judge of tbe Superior Court approving ber -renunciation and directing the Security National Bank, administrator c. t. aafter paying tbe debts of tbe estate and all proper charges against it, to distribute all tbe property remaining in its bands as such administrator between Irene Perkins Isley and Wachovia Bank & Trust Company, Trustee for Aubrey A. Perkins, in equal shares, in accordance with tbe intestate laws of North Carolina. Tbe appellant’s renunciation became effective upon tbe filing of ber verified petition in tbe office of tbe clerk of tbe Superior Court renouncing ber rights under said will and said renunciation related back to tbe death of ber mother. Tbe will of Mrs. Lalah Boss Perkins contained no residuary clause,- or other provisions disposing of ber property in tbe event of a renunciation by tbe beneficiary therein, therefore tbe plaintiff and tbe defendant herein are tenants in common in all tbe real property of which Mrs. Lalah Boss Perkins died seized. Tbe appellant may have made a mistake when sbe renounced ber rights under ber mother’s will, but sbe has not shown upon this record any reason, legal or otherwise, why sbe should now be permitted to retract or revoke ber renunciation. Whether or not tbe right to renounce a testamentary gift is superior to tbe right of a judgment creditor, is not presented or decided. In tbe trial below, we find No error. DeviN, J., took no part in tbe consideration or decision of this case.