Allen v. . Allen , 121 N.C. 328 ( 1897 )

The last will and testament of M. A. Allen, who died in Halifax County, 9 September, 1874, was duly admitted to probate in the December following. The will contained a devise to R. J. Allen, the testator's son, of a tract of land of about 200 acres and a legacy of $940. In a codicil the testator uses of the following language: "Whereas, it is my desire that one of my sons should live at my old residence who bears my family name; in order, therefore, to place it in their power to do so, I make the following provision in Will: If my son, R. J. Allen, will agree to live at my old residence that I have left my wife during her life, at her death, if my son, R. J. Allen, shall think proper to pay $2,000 for all the land and residence that I left to my wife during her life, he shall have the privilege of doing so, and he shall have a fee-simple right and title to it to him and his heirs forever." The four children of the testator were named executors, but R. J. Allen alone qualified. The testator, in May, 1872, more than a year after the date of the execution of the will, made and delivered to R. J. Allen a deed in fee to the tract of land mentioned in the codicil. The grantee took possession of the tract of land in 1876, and in 1893 executed a mortgage upon the same to Sterling Johnston, one of the defendants, to secure a debt of $1,520 due to Johnston.

The first question presented for consideration is whether the simple qualification of R. J. Allen as executor of the will of his father was ipsofacto an election by the son to take under the provisions of the will. If such qualification amounts to such election, then the interest of the son in the tract of land described in the codicil is, so far as the son is concerned, derived from the codicil, and the deed is of no avail to him. This is an important question and is raised in its naked simplicity for the first time in this State. Under the common law the answer to the question was ready enough, if not entirely satisfactory. By the act of qualification the executor became vested with the whole (331) personal estate, and after the payment of debts and legacies, was entitled to the surplus, unless it appeared on the face of the will that the testator did not intend for the executor to have it. Therefore, and under that system, it is manifest that the act of qualifying as executor and taking the oath of office to execute the provisions of the will was irrevocable on his part, and the executor had to proceed to execute the will in all its parts and in its entirety. But the reason of the common law is of no force now; for executors, after the debts and legacies are paid, are trustees of the residuum for the next of kin.

But there is another view which leads us to the same conclusion as that of the common law, and as that view has been considered by this Court, we will examine the decisions in reference to the matter.

In Mendenhall v. Mendenhall, 53 N.C. 287, the Court decided that a widow who qualified as executrix of her deceased husband and took upon herself the execution of the will waived her right to dissent. ChiefJustice Pearson, for the Court, mentioned four considerations, all or any of which, he said, seemed to the Court sufficient to sustain the ruling. Three of these considerations apply with peculiar force to the cases concerning widows in their relations with the estates of their deceased husbands, but one of them appears to us of general application. The Chief Justice said in that case: "Upon qualifying, she assumes the duties and undertakes on oath to carry into effect the several provisions of the will, and it is inconsistent afterwards to do an act which defeats or in a great degree deranges the provisions of the will and disappoints the intention of the testator therein expressed." This ruling is affirmed in Syme v. Badger,92 N.C. 706.

In Yorkly v. Stinson, 97 N.C. 236, the opinion in reference to the cases of Mendenhall v. Mendenhall and Syme v. Badger, supra, is in the following language: "But in these cases the estoppel was (332) held to apply to a widow who was appointed to execute the will, and, of course, in all of its provisions, and who accepted the office and undertook to carry out its directions with which the legal effect of a dissent was wholly inconsistent. The subject is considered in the last cited case and leaves nothing now to be added."

It seems to us, from the reasoning in the cases above cited (although in those cases the personal representatives were widows qualifying upon the estates of their deceased husbands under wills), that this Court has decided that the same principle would apply to the qualification of any person as executor; that the taking of the oath of the office of executor is irrevocable on his part; that he must execute the will in all of its provisions, and that, therefore, by such qualification he makes his election to take under the will where the testator has disposed of property belonging to the executor and at the same time and in the same will has given to the executor property of the testator.

The executor, R. J. Allen, having elected, then, by his qualification, to take the land described in the codicil, the effect of this upon the interest of the defendant Johnston is next to be considered, the question involving the doctrine of constructive notice. Did Johnston have such notice of the will of the testator, Allen? He did not have actual notice, as appears in the case agreed. We think he is not bound constructively with knowledge of the contents of the will. The principle of constructive notice arises out of the duty of any would — be purchaser to reasonably and in common prudence see that his vendor has a prima facie good title; and because of this duty the purchaser will be affected with notice of the provisions of such deeds and other documents as are necessary to show the vendor's title. It was incumbent, then, upon Johnston (333) to see to the right of R. J. Allen to convey the land to him. He reasonably would have performed his duty if he had consulted, in the first place, the office of the register of deeds of Halifax County. He would have found there on registration a deed from the testator to R. J. Allen conveying the land mentioned in the codicil. He would not then have been required to look further. If the defendant Johnston, after he had examined the register's office, had been informed that the testator had left a will, the reasonable presumption would have been that the testator had not devised that which he had already conveyed by solemn deed.

We are of opinion, therefore, that the mortgage described in the case agreed, and which was executed by the defendant Allen to the defendant Johnston, is a first lien upon the land.

The last question for our determination is as to the nature of R. J. Allen's interest in the land described in the codicil — that is, whether it was an estate upon condition or a fee — simple in remainder, charged with the payment of the $2,000 mentioned in the codicil. Whatever interest it may be when considered as between R. J. Allen and his next of kin, it is subject in the first place to the debt and mortgage of Johnston, for the reasons already given. The intention of the testator as to whether he intended that the estate in the land should vest as a remainder in fee in his son, R. J. Allen, charged with the amount named in the codicil, or whether he intended that R. J. Allen should pay the amount for the benefit of the estate before the interest in the land should vest, is not clear. That being in doubt, we are disposed to adopt the first view, because the law favors the vesting of estates and learns to a view of a charge rather than to that of a condition precedent. Besides, there is no devise over to any other person, and in Woods v. Woods, 44 N.C. 290, this circumstance is declared to be a strong reasons for giving to such words of limitation the idea of a charge rather than of a condition precedent. We think, then, that the testator, by his language, (334) intended to devise the land — i. e., the remainder in fee after the death of the widow to his son, R. J. Allen, provided he should pay to the estate $2,000. That being so, R. J. Allen took a vested estate. Woods v.Woods, supra; Aston v. Galloway, 38 N.C. 126; Whitehead v. Thompson,79 N.C. 450; Patterson v. Patterson, 63 N.C. 322; Erwin v.Erwin, 115 N.C. 366, to the contrary, is in conflict with the decisions of this Court, and is a dictum, purely.

Considering, then, that the estate was vested in R. J. Allen, and that the $2,000 mentioned in the codicil was a charge upon the land, the plea of the statute of limitations set up by the defendants is a bar to the plaintiff's action, except as to Mrs. House. Rice v. Rice, 115 N.C. 43. Mrs. House, therefore, is entitled to one-fourth of the amount charged upon the estate, but the debt secured by the mortgage of R. J. Allen to Sterling Johnston is a first encumbrance on the land.

To summarize, our conclusion is that R. J. Allen, by the act of qualifying as executor, elected to take under the will; that the estate mentioned in the codicil was not a conditional one, but a vested interest, charged with the amount mentioned in the codicil; that the plaintiff, except Mrs. House, are barred by the statute of limitations, and that Mrs. House is entitled to one-fourth of the amount charged upon the land, but that she is to recover no part of her share until the debt of Sterling Johnston secured by the mortgage shall have been paid, that debt and mortgage being a first lien.

The judgment of the court below is reversed and the case is remanded, to be proceeded with according to law under this decision.

Reversed.