Wright v. . Wright

Adams, J. The appeal presents the questions whether W. J. Wright was compelled to exercise an election between accepting the land devised to him and taking the personal property purporting to be bequeathed to others, and whether he is estopped to claim the land by having refused to give up the personal property. It is admitted that R. H. Wright, the testator, after the execution of his will gave to W. J. Wright all the articles in controversy and that the donee was the owner and in possession of this property at the death of the testator and at the death of the life tenant, Amanda Wright. The will was executed 23 January, 1920; the property was delivered to the donee in 1922; the testator died in March, 1925. The effect of the gift was to withdraw the property from the operation of the devise and to vest it in the son. If property is devised and subsequently alienated it does not go to the devisee, because the testator can devise or bequeath only the property he owns at the time of his death. 1 Page on Wills, sec. 456; Schouler on Wills, sec. 427; C. S., 4136, 4165. The failure of the bequest under these circumstances is more like the ademption of a legacy than the technical revocation of a devise. Page on Wills, supra; McRainy’s Executors v. Clark, 4 N. C., 698; S. c., 6 N. C., 317. In the sense used in equity jurisprudence, election has been defined as the obligation imposed on a party to choose between two alternative rights or claims in cases when there is a clear intention of the person *756 from whom be derives one that be should not enjoy botb. Eaton on Equity, 161. Tbe appellants invoke tbe aid of tbis doctrine. They say tbe respondent cannot bold botb tbe land and tbe personal property, and must make an election between tbe two. Tbe particular phase of tbe doctrine to which they advert is tbis: Where a person devises bis property to a beneficiary and assumes to devise to another property belonging to tbe first devisee and tbe devisee of tbe testator’s property accepts tbe devise with knowledge of all tbe facts be is thereby precluded from asserting’title to that part of bis own property which was devised to another. Sigmon v. Hawn, 87 N. C., 450; Syme v. Badger, 92 N. C., 706; Allen v. Allen, 121 N. C., 328; Tripp v. Nobles, 136 N. C., 99. We are of opinion that tbe fifth item of tbe will, taken in connection with tbe evidence, does not necessarily purport to dispose of tbe articles given to tbe respondent; and if not tbe appellants’ position cannot be maintained. There is evidence that these articles and tbe household and kitchen furniture were not all the personal property owned by tbe testator at tbe time of bis death. Tbe bequest to bis other children would therefore include tbe remaining property. In Gray v. Williams, 130 N. C., 53, it is said that before a donee can be put to an election his own property which is professed to be conveyed must be described in tbe instrument itself with such certainty that tbe donee may know bis own property by tbe description given. It was shown in Field v. Eaton, 16 N. C., 283, that tbe defendant, William Eaton, claimed title to a slave as a gift from bis father. Some time after tbe date of tbe alleged gift bis father made a will bequeathing tbe slave to bis son. In a subsequent clause be bequeathed tbe same slave to bis daughter Harriet. To bis son be devised other property, consisting of lands and slaves. In tbe will tbe slave in question was identified by name. It was held that as William claimed under tbe will and tbe will in express terms purported to convey title to tbe slave be could not accept and reject tbe same instrument. The turning point of tbe decision in Allen v. Allen, supra, was tbe fact that R. J. Allen, tbe vendee in tbe deed, qualified as executor of bis father’s estate — -the court bolding that bis qualification as executor was an election to take under tbe will. Tbe same conclusion was announced in Treadaway v. Payne, 127 N. C., 436, in which tbe defendant Payne, who claimed under a deed from the testator, was held to an election because be bad probated tbe will, made an inventory of tbe estate, stated bis receipts and disbursements, and executed tbe duties of executor. These decisions, cited by tbe appellant, are therefore not decisive in tbe present case. We find No error.