Hoggard v. Jordan.

Connor, J.,

after stating the case: We had occasion to consider the general principle involved in this record in the case of Tripp v. Nobles, 136 N. C., 99, and upon a rehearing in 138 N. C., 747. The plaintiff insists that a distinction may be drawn between that case and the facts presented in this appeal; he also suggests that the very able dissenting opinion “is more in harmony with decisions and justice.” It must be conceded that in some eases, there is an apparent hardship in the application of the well-settled doctrine of election, but a careful examination of the numerous cases to be found in our own and the English courts show a solicitude on the part of the judges to so administer the doctrine that the rights of all persons interested shall be protected; decrees are so moulded, that, when possible, compensation is directed to be made and forfeitures of estates prevented. The doctrine of election between inconsistent dispositions' of property in wills and other instruments is peculiarly of equitable origin, and its administration in the jurisdiction of courts of equity “by reason of the inflexible, inelastic and cramped procedure of the common law courts.” An examination of the will of J esse N. Jordan, made but a few months prior to his death, discloses a wise plan for the disposition of his estate, by which his widow is enabled to use both her own and his property “for the best interest of herself and younger children.” To this end, he gives her a life estate in the Hancock land, to which it is not improbable he thought he was entitled to one-half, “two stores and lot in Lewiston, N. C.,” and his entire personal estate. It will be noted that, at the time of his death, four of his children were under fourteen years of age, and all were minors. At her death he gives to each child a share in the property. It was stated on the argument that, she, for some reason, did not get the stores. We are concluded in this respect by the record — the petition states that she died seized of the Hancock land and “two stores and lot situate in Lewiston, N. C.” His personal estate was worth but two hundred dollars, to all of which she would have been entitled as her year’s support. There is nothing in the record to show the value of the land or the stores, nor that the latter did not belong to the testator. We are of the opinion that upon the facts found, Mrs. Jordan was put to her election, either to claim under the will as a whole, or to claim against it, surrendering any other than her dower right in the stores, and her year’s support in the personalty. She knew the contents of the will — proved it and qualified as executrix, remained in possession of the property, until her death in 1896, and her children went into possession under the will. Thus for nine years she, by her conduct in proving the will and qualifying and by using the property, acquiesced in the disposition made by her husband. For eight years since her death, the only persons who could have been benefited by electing to take as her heirs, and against the will, have likewise acquiesced in it. Certainly, after so long acquiescence in the provisions of the will, her administrator, against the consent of her real representatives, will not be permitted to make an election for her by simply filing a petition for the sale of the land. Her conduct brings the case clearly within the observation of Lord Hardwicke, in Tomkins v. Ladbroke, 2 Vesey, Chan., 593, that the courts will not “disturb things long acquiesced in by families upon the foot of rights, which those in whose place they stand, never, called in question.” The Vice Chancellor, in Dewar v. Maitland, L. R. E., 2 Eq., 834, said: “Although the court compels persons to elect, yet election itself is a voluntary act. The doctrine has been established for the peace of families and of the public, that if property has been long enjoyed according to a certain mode and rights, this court will be very slow to disturb siich enjoyment. The heir in this case chose to enjoy the property devised by his father — whether properly devised or not — upon the footing of his will.” In Worthington v. Wigginton, 20 Blav., 67, the question was discussed by Sir John Romilly, M. R., saying: “Two things are essential to constitute a settled and concluded election by any person who takes an interest under a will, which disposes of property under that will. There must be, in the first place, clear proof that the person put to his election was aware of the nature and extent of his rights; and in the second place, it must be shown that, having that knowledge, he intended to elect. In this case, I think that the widow was aware of what her rights were; she was fully aware of the contents of her husband’s will, she was the sole executrix named in it and bad proved it; and she bad made use of her character of executrix to enforce payment of money due to her late husband and to arrange with the landlord for the surrender of the five leaseholds. She must, therefore, on the one band, have known that her husband bad, by bis will, specifically bequeathed the stock standing in their joint names, and that by it be gave her only a life interest in that stock. * * * She knew that the will disposed of her property, she knew that she could withdraw it from the operation of the will.”

The discussion and review of the authorities are full and exhaustive. In Adset v. Adset, 2 John, Ch. 448, Chancellor Kent said: “Taking possession of property under a will or other instrument and exercising unequivocal acts of ownership over it for a long time, will amount to a binding election.” Penn v. Gugginheimer, 76 Va., 839; Pom. Eq., 513; Fetter Eq. 56. We have discussed the question upon the theory that the widow in her life time, or her heirs at law; at her death, were seeking to claim her land devised by Jesse N. Jordan. It would seem that, if such were the case, they would, under the circumstances, be held to have elected to claim under the will after the unequivocal acts of ownership and long acquiescence in the disposition made by her bus-band. However this might be, we are unable to perceive bow, in the light of the facts appearing in the record, where all of the parties interested, or who, if no disposition bad been made of the land by the busband, would have been interested, are still acquiescing in and claiming under the will, the administrator of Mrs. Jordan can treat the election to claim against the will, as having been made, and subject the land to sale: It is conceded that the only purpose in seeking to sell the land is to pay a debt contracted by Mrs. Jordan after the death of her busband. She was certainly under no legal or moral obligation to the creditor to dissent from her husband’s wall or elect to take against it. The status of her property was a matter of record when the debt was contracted, and no question raised until eight years after her death. The children, it is to be presumed, upon the death of Mrs. Jordan, took possession of the land under their father’s will. It is difficult to see how, against their consent, a court, in a statutory proceeding, having no equitable element in it, can proceed to sell the land. If sold for a price in excess of the debt, to whom and in what right would the excess be paid? Certainly if the land is sold, as her property, the excess, after paying the debt, should be paid to her heirs and not the devisees of her husband. There can be no partial election to claim against the will. It is well settled that the election, when made, must be complete and final. Rights of property and family settlements made with the consent of husband and wife, or, at least, acquiesced in by the survivor, would be insecure, if, after so many years, they could be disturbed in this summary method. To the suggestion that Mrs. Jordan made no will, it would seem an answer that she acquiesced in the disposition of her land made by her husband. As we have said in Tripp v. Nobles, supra, the creditor cannot reasonably complain; he extended credit with the condition of the title disclosed on the records. Whether Mrs. Jordan preferred to abide by the will of her husband and take the two hundred dollars in personalty under the will by reason of' an arrangement made between them, or out of respect to his wishes, or for any other reason, is not material. She, by her conduct, showed that she was content with the disposition of her property; and his will, approved by her, should not now be disturbed. To do so would not “be in harmony with decisions and justice.”

We have given the case a careful consideration and re-examined the authorities and find no reason for disturbing the decisions heretofore made by us. It may be proper to say that all of the authorities disclose a purpose to give to the widow, claiming dower in land devised to her, the largest possible latitude, both in regard to the construction of the will and the time within which she is required to elect. As said by Romilly, V. C., in Worthington v. Wigginton, supra, “the cases relative to dower have no application to the present.” The judgment of the court below must be

Affirmed.