Byrd v. . Patterson

BabNhill, J. The record presents this situation : Land is conveyed to T. N. Allen and wife without naming the feme grantee. Allen dies testate, leaving surviving his widow and one child by a former marriage. In his will he devises his personal property and a life estate in the land to his widow. The widow qualifies as executrix, takes the personal property, and remains in possession of the land until her death. After her death, a collateral relative acquired a two-thirds interest in such estate as she owned in the land, and the feme defendant acquired the other one-third. The feme defendant, sole surviving heir of T. N. Allen, now claims the whole estate. This state of facts raises two questions for decision : (1) Did the deed from Crumpton and wife to Allen and wife convey an estate by entirety; and if so, (2) Did Mrs. Allen, by qualifying as executrix of Allen’s will and accepting the personal property therein bequeathed to her, make an election which estopped her and those claiming under her from asserting title to the locus? The court below answered the first in the affirmative and the second in the negative. We concur. A deed, to be operative as a conveyance, must in some manner designate as grantee an existing person who is capable of taking title to the land. 16 A. J., 482. While the correct name of the grantee affords a ready means of identification of the person intended, its use is not a prerequisite to the validity of the instrument. 16 A. J., 483. If a living or legal person is intended as the grantee and is identifiable by the description used, the deed is valid, however he may be named in the deed. 16 A. J., 483. Thus a conveyance, Ballard v. Farley, 226 S. W., 544, or a devise, Motley v. Whitemore, 19 N. C., 537, to a named man “and wife” or a deed to a designated person “and children” conveys an estate to the “wife” or “children” living at the time of the execution and delivery of the deed, or, in the case of a will, at the death of the testator. Darden v. Timberlake, 139 N. C., 181; Buchner v. Maynard, 198 N. C., 802, 153 S. E., 458; Cullens v. Cullens, 161 N. C., 344, 77 S. E., 228; King v. Stokes, 125 N. C., 514; Helms v. Austin, 116 N. C., 751; Gay v. Baker, 58 N. C., 344. It is just as effectual as if the name of the wife or child or children had been given in full, 6 Thompson, Real Property, 322, 325, and extrinsic evidence is admissible for the purpose of fitting the description to the person or persons intended. 16 A. J., 482; 6 Thompson, Real Property, 322, 325; Gold Mining Co. v. Lumber Co., 170 N. C.. 273. 87 S. E.. 40. *159 A wife is a woman who bas a husband. Davis v. Bass, 188 N. C., 200, 124 S. E., 566. The name of the husband appears in the face of the deed. This is sufficient to permit evidence aliunde the record to identify the other grantee, the “wife,” and her identity is made to appear by stipulation. 41 C. J. S., 447; Ballard v. Farley, supra; 6 Thompson, Real Property, 322, 325. The deed need not characterize the estate conveyed. If it is to husband and wife, nothing else appearing, they take by the entireties. Randolph v. Edwards, 191 N. C., 334, 132 S. E., 17; Johnson v. Leavitt, 188 N. C., 682. 125 S. E., 490; Davis v. Bass, supra; Turlington v. Lucas, 186 N. C., 283, 119 S. E., 366; Holton v. Holton, 186 N. C., 355, 119 S. E., 751; Bruce v. Nicholson, 109 N. C., 202. The slight inconsistencies in the designation of the grantees in the several provisions of the deed do not affect the nature of the estate conveyed for “in the event of any repugnancy between the granting clause and preceding or succeeding recitals, the granting clause will prevail.” Ingram v. Easley, 227 N. C., 442, 42 S. E. (2d), 624; Artis v. Artis, 228 N. C., 754; Williams v. Williams, 175 N. C., 160, 95 S. E., 157; 16 A. J., 575. Clearly then, the Crumpton deed conveyed an estate by entirety to T. N. Allen and his wife, Catherine Allen. The facts found by the court below are not such as to invoke the application of the doctrine of election. Her property was not devised to another so as to compel her to decide whether she would stand on her rights or abide by the terms of the will. “The doctrine of election is not applicable to cases where the testator, erroneously thinking certain property is his own, gives it to a donee to whom in fact it belongs, and also gives him other property which is really the testator’s own; for in such cases the testator intends that the devisee shall have both, though he is mistaken as to his own title to one.” 2 Pomeroy, Eq. Jur., 5th Ed., 358; Elmore v. Byrd, 180 N. C., 120, (125), 104 S. E., 162; Benton v. Alexander, 224 N. C., 800, 32 S. E. (2d), 584, and cited cases. Allen devised to his wife a life estate in the land held by entirety which she already owned. lie made no disposition of the remainder which was hers as surviving tenant by entirety. The fact that he also gave her other property and she qualified as executrix ot his will does not work an estoppel against those claiming under her. It follow's that the judgment belorv must be Affirmed.