Anna W. TAYLOR, Robert L. Taylor, B. Bruce Taylor and Paul H. Taylor,
v.
Patricia Ann TAYLOR, Donald Bruce Taylor, Paul H. Taylor, Jr., Kay Lowery Taylor and Lon Otis Taylor, Minors, and such unborn children of Robert L. Taylor, B. Bruce Taylor and Paul H. Taylor, or either of them, as may be hereafter born to Robert L. Taylor, B. Bruce Taylor and Paul H. Taylor, and any child or children of Robert L. Taylor, B. Bruce Taylor and Paul H. Taylor in esse at the death of Robert L. Taylor, B. Bruce Taylor and Paul H. Taylor.
No. 167.
Supreme Court of North Carolina.
April 11, 1956.*140 John D. Larkins, Jr., Trenton, for defendants appellants.
White & Aycock, Kinston, for plaintiffs appellees.
WINBORNE, Justice.
Fundamentally decision of this appeal rests upon question as to whether the doctrine of election applies in respect to plaintiff, Anna W. Taylor.
The trial court, upon facts agreed, was of opinion and held that it does not apply.
In this connection, "the doctrine of election" as stated in the case of Lamb v. Lamb, 226 N.C. 662, 40 S.E.2d 29, 31, opinion by Seawell, J., "as applied to wills, is based on the principle that a person cannot take benefits under the will and at the same time reject its adverse or onerous provisions; cannot, at the same time, hold under the will and against it." And it is stated further that "the intent to put the beneficiary to an election must clearly appear from the will", and that "the propriety of this rule especially appears where, in derogation of a property right, the will purports to dispose of property belonging to the beneficiary and, inferentially, to bequeath *141 or devise other property in lieu of it."
The principle as thus stated is in keeping with uniform decisions of this Court. And in the Lamb case Seawell, J., in qualification of the rule, aptly declared: "Our train of reasoning is not complete without adding that if, 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", and that "that result follows as a corollary to the principles already laid down."
While in this connection it may be doubted that the guardian ad litem herein appointed to represent children born, and unborn, had authority to stipulate as to what the testator had in mind, it appears affirmatively from the provisions of the will, upon a fair and reasonable construction, Lamb v. Lamb, supra, that the testator, B. O. Taylor, was erroneously of the opinion that the title to all of the lands described in the complaint and purportedly devised by him under Items Four, Five and Six of his last will and testament were owned by him individually and in fee simple, and hence that he had no intention to put Anna W. Taylor, his wife, to an election. See Honeycutt v. Citizens Nat. Bank, 242 N.C. 734, 89 S.E.2d 598, 606, where in opinion of Bobbitt, J., this Court said: "Ordinarily, where the testator attempts to devise specific property, not owned by him, to a person other than the true owner, and provides other benefits for the owner of such specific property, such beneficiary is put to his election. * * * Even so, if it appears that the testator erroneously considered the specific property so devised to be his own, no election is required. * * An election is required only when the will confronts a beneficiary with a choice between two benefits which are inconsistent with each other."
In this respect it is noted that in Item Three the testator wills and devises: "All of my real property of every kind, sort, and description wherever situate to my wife, Anna W. Taylor, for and during her natural life." And, then, expressly "subject to the life estate" of his wife, "as set out in Item Three", he devises the remainder in Tracts 3 and 4 of the Quill Hill Farm (Item Four), and the remainders in described portions of the Home Place (Items Five and Six) as set forth in the statement of facts. And in view of the principle of law that as to real property, title to which is held by the husband and wife as an estate by the entirety, the husband, during coverture, and between him and his wife, "has absolute and exclusive right to the control, use, possession, rents, issues and profits" of such property, Lewis v. Pate, 212 N.C. 253, 193 S.E. 20; Nesbitt v. Fairview Farms, Inc., 239 N.C. 481, 80 S.E.2d 472, and numerous other cases, it is reasonable that the husband in the instant case had the erroneous impression that the property belonged to him. Thus it is manifest that all of these lands in which he purported to devise estates in remainder are included within the description "all of my real property of every kind, sort, and description wherever situate" used in Item Three in devising a life estate to his wife as above set forth.
Indeed, as stated in Byrd v. Patterson, 229 N.C. 156, 48 S.E.2d 45, 47, opinion by Barnhill, C. J., quoted with approval in the Honeycutt case, supra, the widow's "property was not devised to another so as to compel her to decide whether she would stand on her rights or abide by the terms of the will." Hence this Court concurs in the ruling of the trial court that the doctrine of election does not apply in this case.
Nevertheless it does not follow as a matter of law that Items Two, Three, Four, Five and Six of the will of B. O. Taylor, deceased, are void, and of no effect. "Any testator, by his will duly executed, may devise, bequeath, or dispose of all real and personal estate which he shall be entitled to at the time of his death, and which, if not so devised, bequeathed, or disposed of, would descend or devolve upon his heirs at law, or upon his executor or administrator * * *." G.S. § 31-40. Certainly, *142 therefore, the testator, B. O. Taylor, had the right to bequeath his personal property, or to devise real property he owned. Hence this Court holds that to such extent as these Items of his will relate to disposal of his personal property, and his real property, they are valid.
Now particularizing:
Item 2: As to the personal property the testator bequeathed to his wife, (Item Two), she, having elected to distribute it just as if her husband, the testator, had died intestate, her action in so doing is a closed transaction which requires no further adjudication.
Item 3: It being admitted as a fact that the only real estate owned by B. O. Taylor was an undivided one-half interest in the "Home Place", the devise of a life estate in all his real property (Item Three) is valid, and sufficient to vest in her such an estate in his undivided one-half interest.
Item 4: However, it appearing that Anna W. Taylor, the wife, by right of survivorship, she having survived her husband, acquired the fee in tracts 3 and 4 of the Quill Hill Farm, the purported devise thereof to Robert L. Taylor for life, with remainder to his lawful children is void, and the devisees thereof take nothing.
Items 5 and 6: It appearing that at the time of the death of B. O. Taylor, he individually and he and his wife Anna W. Taylor as tenants by the entirety were tenants in common of the "Home Place", he owning an undivided one-half interest therein, and they an undivided one-half interest therein, the question arises as to whether he, by attempting to devise particular parts thereof, vested in his devisees any right thereto. We find no comparable case in reported cases in this State, and none is cited by counsel for either party. However, we find it stated in 68 C.J.S., Partition, § 9(c), p. 16 that "where there are two tenants in common, each owning an undivided half of land, neither can make a partition that will be binding on the other, by assuming to convey either half specifically." The case, Eaton v. Tallmadge, 1869, 24 Wis. 217, cited supports the text.
Tenants in common are such as hold property by several and distinct titles, but by unity of possession. Each tenant owns an interest in every inch of the property, and cannot know where that fraction is until a division has been made. 86 C.J.S., Tenancy in Common, §§ 1, 2, 3 and 4, p. 361, citing among other cases Taylor v. Millard, 118 N.Y. 244, 250, 23 N.E. 376-377, 6 L.R.A. 667. See also Allen v. McMillan, 191 N.C. 517, 132 S.E. 276. Hence a purported devise of a specific portion of the whole by metes and bounds would seem to be too indefinite to constitute a valid devise. Therefore, this Court holds that the attempted devises of specific portions of the Home Place fails to vest title in the devisees therein named, and that the undivided interest of the testator in the Home Place, except as to the life estate of Anna W. Taylor is undevised, and descended to the testator's heirs at law, namely his three sons.
As so modified, the judgment from which appeal is taken is affirmed.
Modified and affirmed.
DEVIN, J., took no part in the consideration or decision of this case.