Sigmon v. . Hawn , 87 N.C. 450 ( 1882 )

This court cannot concur in the view which the learned judge seems to have taken of the law governing the case.

Whenever there is a plurality of rights, with a clear intention, express or implied, of the party from who one is derived, that both shall be enjoyed, the doctrine of election is enforced by the courts. The person who is to take has a choice, but cannot enjoy the benefits of both 2 Story's Eq. Jur., Sec. 1075.

The foundation of the rule is, that no one can be permitted to accept and reject the same instrument; and in every case, therefore, come before the courts in which such alternative rights are present (454) there is but one thing left to be done, and that is, to ascertain intention of the party from whom the last right emanates, and know whether that intention would be frustrated by permitting rights to be enjoyed by the same person.

In the case at bar, we have a plain instance of the occurrence inconsistent rights in the same person; the right of the plaintiff to and enjoy her own land, and the right to a support for herself and in daughter, assured to her out of her husband's estate; this latter growing out of his will, and by which instrument he at the same time undertook to dispose of her land, away from her. And as to the intention with which this was done, there cannot be the least room for doubt, since, so careful was he to manifest his purpose to be, that she should not enjoy the benefit of both rights, he caused her to relinquish the one at the very moment he created the other.

It is true that this relinquishment might have been ineffectual if repudiated in time, but it comes too late after she has accepted and enjoyed for two years the provision made in the will — she being all that while sui juris.

If instead of applying at any time for dower, the plaintiff had been content to enjoy the support guaranteed to her in the will and made a charge upon the lands devised to her husband's two sons, can any one suppose that she would have been permitted at the same time to defeat her husband's intentions as to the sale of her lands, in the proceeds of which the very persons thus charged with her support were to share? and if not, why should not the same consequence attend her voluntary acceptance of the other provisions made for her in the will, by taking dower thereunder — this right being expressly given her in lieu of the support previously secured to her, and to be enjoyed only at her election, and because the other arrangement might be unsatisfactory to her?

Indeed the plaintiff in this action seems to us to be resting (455) under two estoppels, either one of which has force sufficient to bar her right to recover the land in controversy: First, that arising out of her election, knowingly made, between the right to have her own land and the inconsistent one bestowed upon her in her husband's will; and secondly, that growing out of the judgment of the probate court in the proceedings for dower, when her right to assert any claim contrary to the provisions of that will, was denied by the heirs and solemnly passed upon and concluded by the court.

Our conclusion therefore is, that there is error in the judgment of the court below and the same is reversed, and judgment will be entered here for the defendant who will also recover the costs of the action.

Error. Judgment accordingly.

Cited: Brown v. Ward, 103 N.C. 178; Varner v. Johnston, 112 N.C. 577;Davenport v. Gannon, 123 N.C. 367; Earnhardt v. Clement, 137 N.C. 93;Elmore v. Byrd, 180 N.C. 127; McGehee v. McGehee, 189 N.C. 560; Adams v.Wilson, 191 N.C. 396; Wright v. Wright, 198 N.C. 756; Lovett v. Stone,239 N.C. 213.