Craven v. Caviness

Per Curiam. The question of the validity of a codicil to the will of Eli A. Craven was here upon appeal of caveators. This Court affirmed the judgment of the court below, declaring the will and codicil to be valid. In re Graven, 169 N. C., id. 561. [313] Prom a careful consideration of the facts as admitted of record, we think that the principle both of election and estoppel apply. This is a conclusion of law. Plaintiff was sui juris. In Elmore v. Byrd, 180 N. C., p. 120, Walker, J., fully sets forth in an exhaustive opinion concerning the principle of the doctrine of election. In Cook v. Sink, 190 N. C., at p. 625-6, it is said: “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 a 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.” The judgment is Affirmed.