Rouse v. Rouse , 237 N.C. 492 ( 1953 )

75 S.E.2d 300 (1953) 237 N.C. 492

ROUSE
v.
ROUSE et al.

No. 377.

Supreme Court of North Carolina.

April 8, 1953.

Jones, Reed & Griffin, Kinston, for plaintiff appellee.

Allen, Allen & Langley, Kinston, for defendant appellants.

BARNHILL, Justice.

There is error in the judgment entered in the court below. Plaintiff elected to take the benefits accruing to her under the will of her husband. She took possession of the very land upon which she claims a specific lien and, since the death of her husband, has been receiving the rents and profits therefrom. While the record is not entirely clear in respect thereto, we must assume that she has received or claims the right to receive the personal property bequeathed to her, for she "cannot accept and reject the same writing." Bispham's Eq., 6th ed., 413; Benton v. Alexander, 224 N.C. 800, 32 S.E.2d 584, 156 A.L.R. 814.

The doctrine of election rests upon the principle that a person claiming under any document shall not interfere by title paramount to prevent another part of the same document from having effect according to its construction; he cannot accept and reject the same writing. Elmore v. Byrd, 180 N.C. 120, 104 S.E. 162; Benton v. Alexander, supra.

Here plaintiff accepted the benefits accruing to her under the will and took the very property the law subjects to the payment of her debt, Moore v. Jones, 226 N.C. 149, 36 S.E.2d 920. She now seeks to sell the interest of the remaindermen in the real property to the exoneration of the personalty bequeathed to her in the will. This is one of the several types of claims the law will not enforce. The plaintiff has made her election and is now estopped to assert her claim to a preferred lien on the very property she received as devisee under the will of the debtor. Tripp v. Nobles, 136 N.C. 99, 48 S.E. 675, 67 L.R.A. 449; Elmore v. Byrd, supra; Wachovia Bank & Trust Co. v. Burrus, 230 N.C. 592, 55 S.E. 2d 183; Benton v. Alexander, supra.

The personal property of a decedent must be applied to the payment of his debts owing at the time of his death before resort can be had to his real property even to satisfy a specific lien. Moore v. Jones, supra; Linker v. Linker, 213 N.C. 351, 196 S.E. 329; Price v. Askins, 212 N.C. 583, 194 S.E. 284.

So then, we may concede, without deciding, that the estate is indebted to the plaintiff and said debt is secured by a specific lien on the real property devised to her. If this be true, then it is the duty of the executor to take possession of and sell the personal property bequeathed to plaintiff and, out of the proceeds of the sale, discharge the debt due her. How she can hope to profit by insisting upon this proceeding, we are unable to perceive.

It may be the personal property is insufficient to pay the debts and costs of administration. If so, plaintiff has failed to make that fact appear of record and the court was without authority to order a sale of the testator's real property for the satisfaction of his debts save and except in the manner provided by law.

The judgment entered in the court below is

Reversed.