Adams v. . Wilson

Clarkson, J. Z. Y. Witberington died on 21 June, 1893, leaving a last will and testament, which was duly admitted to probate. He left one child, tbe plaintiff, Zebbie Witberington, who married J. Q. Adams, and they are tbe plaintiffs in tbis action. She was born 6 days after tbe death of her father. In tbe will of Z. Y. Witberington, be made no provision for bis unborn child, Zebbie Witberington. She was bis only child. Under C. S., 4169, she.was entitled to tbe fee-simple title to tbe property. Tbe question of dower does not arise, as Z. Y. Withering-ton’s mother owned a life estate in tbe land at tbe time of bis death. In Nicholson v. Nicholson, 190 N. C., p. 123, it was said: “B. B. Nicholson having died leaving a widow and after-born son for whom be made no provision in bis will; tbe statute says that tbis son shall be entitled to such share and proportion of tbe parent’s estate as if be bad died intestate. . , . In tbe case of Flanner v. Flanner, 160 N. C., 126, Lizzie H. Flanner made a will as follows: T give, grant and devise to my beloved husband, William H. Flanner, all my property of every kind, real, personal and mixed.’ Tbe will was made 16 May, 1891. On 7 February, 1892, William B. Flanner, Jr., was born of tbe marriage and thereafter Lizzie H. Flanner died. Tbe Court in tbe case held that no provision was made for tbe child. See Rawls v. Ins. Co., 189 N. C., 268.” Tbe serious question presented: Zebbie Adams and her husband on 19 January, 1920, filed a caveat to tbe will of her father, Z. Y. Witber-ington. Tbe plea of tbe statute of limitation was set up and tbe court decided that tbe caveator, Zebbie Adams, was barred. 186 N. C., 152. Tbe present suit was instituted by Zebbie Adams while tbe caveat filed by her was pending. *395 The defendants contend: “The simple legal question involved is whether or not under the record both in the caveat case and the instant case, the plaintiffs are estopped, they having had an opportunity to present all matters involved here in the caveat case.” The caveat filed by Zebbie-Adams was, in part, as follows: “That Zebbie Adams, caveator above named, is the only child of the said Z. Y. Witherington; that she was born on 2 July, 1893, six days after the death' of her father, and that she intermarried with the plaintiff, J. Q. Adams, on 14 January, 1914. “That the paper-writing aforesaid, purporting to be the last will and testament of Z. Y. Witherington is not his will, for that as caveators are informed and believe, the signature to the same was obtained by undue influence and duress,” etc. We said in Cook v. Sink, 190 N. C., 625: “They cannot 'blow hot and cold in the same breath.’ Any other view would be inequitable and unconscionable. Plaintiff or the other devisees cannot take inconsistent positions. 'Upon the principle similar to that applied to persons taking under wills, beneficiaries under a trust are estopped, by claiming under it, to attack any of its provisions. . . . So, also, one who accepts the terms of a deed or other contract must accept the same as a whole; one cannot accept part and reject the rest.’ Bigelow on Estoppel, 6 ed., p. 744. Fort v. Allen, 110 N. C., 191; Chard v. Warren, 122 N. C., 86; Freeman v. Ramsey, 189 N. C., 790. Where a person has, with knowledge of the facts, acted or conducted himself in a particular manner, or asserted a particular claim, title, or right, he cannot afterwards assume a position inconsistent with such act, claim or conduct to the prejudice of another.’ 16 Cyc., p. 785; Holloman v. R. R., 172 N. C., 376.” In the present case — Zebbie Adams did not take inconsistent positions to the prejudice of anyone. If the will of Z. Y. Witherington was set aside for undue influence, etc., she was the only child of her father and would inherit his property. If the will was not set aside, he having made no provision for her, under C. S., 4169, she would still be entitled to his property. Hoke, J., speaking to the question in Pritchard v. Williams, 175 N. C., p. 322, says: “It is only when tivo rights are inconsistent that the party is put to his election, and that the exercise of one or the failure to do so bars the other.” Tyler v. Capehart, 125 N. C., 64; Fleming v. Congleton, 177 N. C., 188; Randolph Edwards, ante, 334; Gilbert v. McCreary, 12 A. L. R., p. 1172 (W. Va., 104 S. E., 273). In McGehee v. McGehee, 189 N. C., 560, Stacy, C. J., says: '"Election,’ in the sense it is used in courts of equity, says Judge Story, 'is the obligation imposed upon a party to choose between two inconsistent *396 or alternative rights or claims, in cases where there is a clear intention of the person from whom he derives one, that he should not enjoy both. Every case of election therefore presupposes a plurality of gifts or rights with an intention, express or implied, of the party who has the right to control one or both, that one should be a substitute for the other. The party who is to take has a choice; but he cannot enjoy the benefits of both.’ 3 Story’s Eq. (14 ed.), p. 113; Sigmon v. Hawn, 87 N. C., 450. The doctrine of election, as applied to the law of wills, simply means, that one who takes under a will must conform to all of its legal provisions. See Elmore v. Byrd, 180 N. C., p. 120, where the subject is fully discussed, but without undertaking to reconcile the divergent authorities. Indeed, such an undertaking would be a herculean, if not a hopeless, task.” On the record we cannot hold that plaintiff is estopped. She does not come within the old legal sayings: “Not having spoken when she should have been heard, she should not be heard when she should be silent.” Engineering Co. v. Boyd, ante, 143, and Pass v. Lea, 32 N. C., p. 410, cited by defendants are not inconsistent with the position here taken. The law is said to be “favorable to the utility of the doctrine of estoppel, hostile to its technicalityLord Bramwell said: “Estoppels are odious, and the doctrine should never be applied without a necessity for it.” Shirley’s Leading Cases in the Common Law, 3rd English Ed., p. 410. For the reasons given, there is Error.