Shirley BURCH
v.
Glennie Belle SUTTON, Shelby Ann Daughtry and husband, Elbert Daughtry, Dorothy Mae Bowden and husband, Robert Bowden, Shirley Fay Carter and husband, Ray Carter, Bobbie Whitfield Sutton and wife, Ruby Sutton.
No. 371.
Supreme Court of North Carolina.
January 14, 1966.*850 Langston & Langston and Herbert B. Hulse, Goldsboro, for plaintiff appellee.
*851 Sasser & Duke and J. Thomas Brown, Jr., Goldsboro, for defendant appellants.
BOBBITT, Justice.
The doctrine of equitable election is in derogation of the property right of the true owner. Hence, the intention to put a beneficiary to an election must appear plainly from the terms of the will. Lamb v. Lamb, 226 N.C. 662, 40 S.E.2d 29; Commercial National Bank of Charlotte v. Misenheimer, 211 N.C. 519, 191 S.E. 14; Rich v. Morisey, 149 N.C. 37, 62 S.E. 762; Walston v. Atlantic Christian College, 258 N.C. 130, 128 S.E.2d 134. "An election is required only when the will confronts a beneficiary with a choice between two benefits which are inconsistent with each other." Honeycutt v. Citizens National Bank in Gastonia, 242 N.C. 734, 89 S.E.2d 598. An election is required only if the will discloses it was the testator's manifest purpose to put the beneficiary to an election. North Carolina Nat. Bank v. Barbee, 260 N.C. 106, 110, 131 S.E.2d 666.
In Lamb v. Lamb, supra, in accordance with prior decisions, this Court said: "(I)f, upon a fair and reasonable construction of the will, the testator, in a purported disposal of the beneficiary's property, has mistaken it to be his own, the law will not imply the necessity of election." This statement is quoted with approval in Bank v. Barbee, supra, in which pertinent prior decisions are cited.
R. C. Burch refers in Item 3 to "all my real property"; in Item 4 to "my home tract of land, containing Thirty-Six (36) Acres"; and in Item 5 to "my other land, consisting of SIXTY (60) ACRES." (Our italics) Obviously, upon a fair and reasonable construction of his will, R. C. Burch, in his purported disposition of the 60-acre tract, has acted under the mistaken belief that he was the sole owner thereof. Since it appears clearly that R. C. Burch erroneously considered the 60-acre tract purportedly devised in Item 5 to be his own, no election was required. Honeycutt v. Citizens National Bank, supra, and cases cited therein; Taylor v. Taylor, 243 N.C. 726, 92 S.E.2d 136; Walston v. Atlantic Christian College, supra; North Carolina Nat. Bank v. Barbee, supra. The factual situation now under consideration is closely analogous to that considered in Taylor v. Taylor, supra.
As noted by Sharp, J., in North Carolina Nat. Bank v. Barbee, supra, the doctrine of equitable election as declared in earlier cases "has been tempered somewhat" in our later decisions.
Appellant cites and stresses Wachovia Bank & Trust Co. v. Burrus, 230 N.C. 592, 55 S.E.2d 183. There the controversy related to real property described in the will of Dr. Burrus only as "the Hollifield property." In contrast, the record shows Dr. Burrus identified other devised real estate as his property, e. g., (1) "my land holdings known as the McCormick farm," (2) "the river bottom originally owned by my father," (3) "the Burrus home property," and (4) "that property which was conveyed to me by G. M. Burrus, my uncle." (Our italics.) Suffice to say, the will of Dr. Burrus did not disclose affirmatively he was under the erroneous impression that he was the sole owner of "the Hollifield property." On account of factual differences, and in the light of later decisions, Wachovia Bank & Trust Co. v. Burrus, supra, does not control decision with reference to the factual situation now under consideration.
Whether the testator would have made a different disposition of his property if he had been aware of the true status of the title to the 60-acre tract and, if so, to what extent, are matters in the realm of speculation. The determinative fact is that the will itself, which is the only basis on which the doctrine of equitable election may be invoked, contains no provision that manifests an intent that an election was required. Honeycutt v. Citizens National Bank, supra.
Affirmed.