In our case the testator has not "acted on the property" by a description of it, but merely describes it as "the land of which I am seized at my death," and the land of the wife would not answer this description. Therefore, his intention to devise it does not appear. Cull v. Showell, supra, would seem to be opposed to Isler v. Isler, 88 N.C. 581, already cited and commented upon by us, and so does Lord Redesdale's opinion in Moore v. Butler, 2 S. Lef., 267. In Cull v. Showell, supra, the land given to the nephew of the testatrix was described specifically, as "all the copyhold messuages, land, etc., held or lying within the manor of Crondal," so that it appeared that she intended to dispose of that particular land, and not merely her interest therein, provided she had any, and therefore a case for an election arose.
n undivided one-half interest therein at such time, were compelled to elect to take under said will, or renounce the same, and claim their legal rights in such property, the said testator devising them other property in which they had no interest, and devising his wife, Lucy Avery. Annie Williams and Eugene Tillman a portion of said real estate; and said defendants having elected to take and accept under and by virtue of the terms of said will, they are bound by all its terms and provisions, and by the terms thereof Lucy Avery, deceased, through whom plaintiffs claim title, was devised 303.71 acres of such land. 11 Am. Eng. Ency. of Law (2d ed.), pp. 61, 68, 72, 73; Pomeroy's Equity, secs. 461-5, 487, 488; Moore v. Baker, 51 Am. St. Rep., 205; Penn v. Guggenheimer, 76 Va. 839; Waggoner v. Waggoner, 68 S.E. 990; Wilson v. Arny, 21 N.C. 376; Gore v. Stevens, 1 Dana (Ky.), 201, 25 Am. Dec., 141; Moore v. Harper, 27 Va. 362; White v. Brocaw, 14 Ohio St. 339; Field v. Eaton, 16 N.C. 283; Isler v. Isler, 88 N.C. 581; Huhlien v. Huhlien (Ky.), 8 S.W. 260; McIlvain v. Porter (Ky.), 7 S.W. 309. It clearly and affirmatively appearing from the language of the will in question that the testator intended to devise to his wife, Lucy Avery, through whom plaintiffs claim title, 303.71 acres of such land, and that the same was to be in lieu of her homestead rights in testator's land, as well as her interest in the community estate of herself and husband, William Avery, and it being uncontroverted that testator had a disposable interest to such extent therein, and that the said Lucy Avery has agreed and elected to take and accept the same as such, if it be true that testator only intended to devise his one-half interest in said property, nevertheless the court erred in not decreeing her a preference over the remaining devisees and legatees in said will, and in not holding that the said Lucy Avery was a purchaser for value of such interest in the said real estate, the remaining devisees and legatees therein
5. Where an executor takes a security in his own name for a debt due the estate, it is not, in the absence of fraud and improper purpose, a devastavit. ( Mendenhall v. Mendenhall, 8 Jones, 287; Jones v. Gerock, 6 Jones Eq., 190; Harrington v. McLean, Phil. Eq., 258; Isler v. Isler, 88 N.C. 581; Deberry v. Ivey, 2 Jones Eq., 370; Nelson v. Hall, 5 Jones Eq., 32; Patterson v. Wadsworth, 89 N.C. 407; Torrence v. Davidson, ante, 437, cited and approved). CIVIL ACTION, heard on exceptions to the report of a referee, before Avery, Judge, at February Term, 1884, of WAKE Superior Court.
"The doctrine of election has been stated and restated many times by this Court and, in the restating, it has been tempered somewhat. Melchor v. Burger, 21 N.C. 634; Isler v. Isler, 88 N.C. 581; Tripp v. Nobles, [ 136 N.C. 99, 48 S.E. 675]; Hoggard v. Jordan, supra, [ 140 N.C. 610, 53 S.E. 220]. The following statement of the doctrine in Lovett v. Stone, 239 N.C. 206, 79 S.E.2d 479, has the full sanction of our decisions today: "`Election is the obligation imposed upon a party to choose between two inconsistent or alternative rights or claims in cases where there is a clear intention of the person from whom he derives one that he should not enjoy both, the principle being that one shall not take any beneficial interest under a will, and at the same time set up any right or claim of his own, even if legal and well founded, which would defeat or in any way prevent the full effect and operation of every part of the will.' (Italics ours.)
The doctrine of election has been stated and restated many times by this Court and, in the restating, it has been tempered somewhat. Melchor v. Burger, 21 N.C. 634; Isler v. Isler, 88 N.C. 581; Tripp v. Nobles, supra; Hoggard v. Jordan, supra. The following statement of the doctrine in Lovett v. Stone, 239 N.C. 206, 79 S.E.2d 479, has the full sanction of our decisions today:
69 C.J., Wills, section 2380. This statement of the doctrine of election finds full sanction in our decisions. Rouse v. Rouse, 237 N.C. 492, 75 S.E.2d 300; Trust Co. v. Burris, 230 N.C. 592, 55 S.E.2d 183; Lamb v. Lamb, 226 N.C. 662, 40 S.E.2d 29; Benton v. Alexander, 224 N.C. 800, 32 S.E.2d 584, 156 A.L.R. 814; Bank v. Misenheimer, 211 N.C. 519, 191 S.E. 14, 110 A.L.R. 1310; Peel v. Corey, 196 N.C. 79, 144 S.E. 559; Craven v. Caviness, 193 N.C. 311, 136 S.E. 705; McGehee v. McGehee, 189 N.C. 558, 127 S.E. 684; Royal v. Moore, 187 N.C. 379, 121 S.E. 666; Brown v. Brown, 180 N.C. 433, 104 S.E. 889; Elmore v. Byrd, 180 N.C. 120, 104 S.E. 162; Tripp v. Nobles, 136 N.C. 99, 48 S.E. 675, 67 L.R.A. 449; Syme v. Badger, 92 N.C. 706; Isler v. Isler, 88 N.C. 581; Sigmon v. Hawn, 87 N.C. 450; Weeks v. Weeks, 77 N.C. 421; Flippin v. Banner 55 N.C. 450; McQueen v. McQueen, 55 N.C. 16, 62 Am. D. 205; Robertson v. Stephens, 36 N.C. 247; Melchor v. Burger, 21 N.C. 634; Wilson v. Arny, 21 N.C. 376; Field v. Eaton, 16 N.C. 283. The testator Alexander Stone clearly intended his will to operate so as to vest all of the H. J. Stone tract in Hector Alexander Stone for life with remainder in equal shares in the children of Hector Alexander Stone in fee simple.
69 C. J., 1089, 1090. "If it be doubtful by the terms of the will whether the testator had in fact a purpose to dispose of property belonging to another, that doubt will govern the courts, so that the owner, even though he derive benefit under the will, will not be put to election." Isler v. Isler, 88 N.C. 581; Elmore v. Byrd, 180 N.C. 120. In In re Estate of Moore, 62 Cal.App. 265, it was said: "Where the testator has a partial or limited interest in the property devised, the presumption is that he intended to dispose of that which he might properly devise, and nothing more, and this presumption will prevail unless the intention is clearly manifested by demonstration plain, or necessary implication, on the part of the testator to dispose of the whole estate."
ve done nothing to conclude themselves, and the court will not consider anything done in ignorance of their rights as binding them, the party whose property has been given to another will be put to his election, either to take what is offered to him in the instrument, yielding up to the party who would otherwise be disappointed, his own property, or to keep what was his own, abandoning the provision made for him in the instrument." The rule is referred to with approval in Chipman v. Montgomery ( 63 N.Y. 221); Haack v. Weicken ( 118 N.Y. 67), and in many other cases. It has been approved and stated in the Federal courts ( Peters v. Bain, 133 U.S. 670, 695), and in Arkansas ( Fitzhugh v. Hubbard, 41 Ark. 64); Georgia ( McGinnis v. McGinnis, 1 Ga. 496); Illinois ( Van Schaack v. Leonard, 164 Ill. 602); Indiana ( Moore v. Baker, 4 Ind. App.115); Kentucky ( Huhlein v. Huhlein, 87 Ky. 247); Maryland ( Hyatt v. Vanneck, 82 Md. 465); Missouri ( Keene v. Barnes, 29 Mo. 377); North Carolina ( Isler v. Isler, 88 N.C. 581); Ohio ( Hibbs v. Union Cent. Life Ins. Co., 40 Ohio St. 554) ; Pennsylvania ( Zimmerman v. Lebo, 151 Pa. St. 345); West Virginia ( Bennett v. Harper, 36 W. Va. 546), and other states. The rule does not rest so much upon presumptions as upon the general principles of right, justice and fair dealing.
He is put to his election. Isler v. Isler, 88 N.C. 581. The defendant, Tazwell L., sets up no claim to a conveyance of the estate under the contract, and as from our view he cannot, neither can the plaintiff maintain an action on the covenant in opposition to a subsequent adjustment proposed in the will, assented to by the devisee, and thus doing away the original agreement.
The testator devised "the tract of land whereon" he resided. The area and extent of that tract and what was included therein, are questions of fact. Did it include the fifty-nine acres? Did the testator intend to include the fifty-nine acres? It is true, as was said in Isler v. Isler, 88 N.C. 581, "that there is a prima facie presumption always that a testator means only to dispose of what is his own, and what he has a right to give; and if it be at all doubtful by the terms of his will, whether he had in fact a purpose to dispose of property really belonging to another, that doubt will govern the courts, so that the true owner, even though he should derive other benefits under the will, will not be driven (232) to make an election. But if, on the other hand, there should be a manifest purpose expressed in the will to dispose of the thing itself, then it is wholly immaterial whether he should recognize it or not as belonging to another, or whether he shall believe that the title and right to dispose of it vested in himself or not.