Commercial National Bank of Charlotte v. Misenheimer

DeviN, J. The appeal in this ease involves the construction of the will of Thomas M. Misenheimer, and the principal question presented is whether the testator’s use of the words “my life insurance” manifested the intention to dispose of policies of insurance in which Charles A. Misenheimer was named beneficiary as well as those policies made payable to his estate. The appellant contends that the language used, considered in connection with the attendant circumstances, indicates the intention to include the policies payable to Charles A. Misenheimer in the bequest contained in the second item of the will, and that thereby the devisee was placed in position where he was required to elect whether he should claim the insurance, or take under the will, and that, having elected to take under the will, a court of equity should not now permit him to claim and retain sole beneficial interest in these insurance policies. This view was strongly pressed in the argument by the able counsel for the appellant. But the court below has found the facts against this contention. Considering the evidence presented and interpreting the language of the will in the light of the surrounding circumstances, the trial judge has found the facts to be, and so decided, that by the words used in the will the testator included and disposed of only the policies of life insurance which were made payable to his estate. While- the testimony offered was susceptible of inferences favorable to the appellant’s contention, it did not necessarily compel the conclusion that the testator intended by the use of the words “my life insurance” to dispose of the property of another. The facts found by the court are sufficient to support the judgment. *524 In order to call for the application of the equitable principle of election the intention of the testator to dispose of property not bis own must be clear and unmistakable. 28 R. C. L., 330; Peel v. Corey, 196 N. C., 19. In Elmore v. Byrd, 180 N. C., 120, Walker, J., speaking for the Court, discusses learnedly and fully the doctrine of election in equity, and defines it as follows: “An election in equity is a choice which a party is compelled to make between the acceptance of a benefit under a written instrument and the retention of some property already bis own which is attempted to be disposed of in favor of a third party by virtue of the same paper.” In the application of the principle to wills it simply means that be who takes under a will is required to conform to all its provisions. McGehee v. McGehee, 189 N. C., 558. In the interpretation of a will there is a prima facie presumption that the testator intended only to dispose of what is bis own, what be has a right to give. To overcome this presumption the intention must clearly appear. 69 C. J., 1089, 1090. “If it be doubtful by the terms of the will whether the testator bad in fact a purpose to dispose of property belonging to another, that doubt will govern the courts, so that the owner, even though be derive benefit under the will, will not be put to election.” Isler v. Isler, 88 N. C., 581; Elmore v. Byrd, 180 N. C., 120. In In re Estate of Moore, 62 Cal. App., 265, it was said: “Where the testator has a partial or limited interest in the property devised, the presumption is that be intended to dispose of that which be might properly devise, and nothing more, and this presumption will prevail unless the intention is clearly manifested by demonstration plain, or necessary implication, on the part of the testator to dispose of the whole estate.” And where in such case be uses general words in disposing of it, no question of election arises. Waggoner v. Waggoner, 68 S. E. (Va.), 990. The rule seems to be well established that in eases where the testator’s language can have full effect when applied only to bis own property, be is presumed to have intended to give only the property over which he has power of disposition. Pratt v. Douglas, 38 N. J. Eq., 516; 30 L. R. A. (N. S.), 644, note. “Of two possible constructions, that which favors the conclusion that the testator was disposing only of bis own moiety of the property will be adopted.” In re Estate of Moore, supra. In Royal v. Moore, 187 N. C., 379, where the beneficiaries in life insurance policies were put to election, the will used the words “all my insurance,” together with designation of the particular policies. To the same effect is the holding in Weeks v. Weeks, 77 N. C., 421. In Whitten v. Peace, 188 N. C., 298, tbe doctrine of election was not involved because there was no specific devise. In Van Schaack v. Leonard, 45 N. E. (Ill.), 982, where tbe legatee was put to election, tbe *525 bequest was “The proceeds derived from all insurance policies upon my life.” In that case recognition was given to the rule that where a testator has a partial interest in property, it will be understood that he intended to dispose of that interest only, unless an intention to dispose of property not his own clearly appears. The facts in the ease at bar, as they are shown by the record, warrant the holding by the court below that the words “my life insurance” did not include those policies in which he had named Charles A. Misenheimer as sole beneficiary, and that the doctrine of election did not apply. The specifications of error addressed to the other questions involved do not require elaboration. While ordinarily rents collected by the executor from devised real property would go to the devisee (Carr v. Carr, 208 N. C., 246), the order of Harding, J., authorizing the application of collections of rents to repairs, taxes, insurance, and mortgage indebtedness on the particular tract from which the rents were derived, would not be injurious to the interest of the appellant, and his exception to the order is without substantial merit. The exception to the ruling of the court below in permitting defendant Charles A. Misenheimer to testify whether he intended to elect between the retention of the proceeds of the policies of insurance and the devise under the will, becomes immaterial in view of the holding that he was not put to election. The bequest that one-half of the proceeds from life insurance be applied to the liens on the lands owned jointly with defendant Charles A. Misenheimer would seem to justify the reasonable conclusion, gathered from a consideration of the entire will in the light of the surrounding circumstances, that the testator did not intend to provide for the payment of the entire mortgage debts, which had been created prior to his acquisition of the property, but rather that the devisees should take cum onere, and that the remainder of the mortgage debt should be carried or arranged by those to whom he devised the lands. The provision in the judgment which authorizes the plaintiff, as executor and commissioner, to sell certain real estate for the satisfaction of the respective liens thereon (unless other arrangements should be made by the interested parties), and to handle and disburse the excess in accordance with the last will and testament of Thomas M. Misenheimer seems to be proper under the terms of the will as construed, and affords the appellant no ground of complaint. After consideration of all the assignments of error, we find in the judgment no error, and it is Affirmed.