Jones v. Callahan

89 S.E.2d 111 (1955)

242 N.C. 566

Olivia B. JONES, Executrix of the Will of David A. Jones, Deceased, v. Mrs. Edna Jones CALLAHAN and husband H. G. Callahan.

No. 31.

Supreme Court of North Carolina.

September 21, 1955.

*113 Grimes & Grimes, Washington, D. C., for plaintiff, appellant.

Carter & Ross, Washington, D. C., for defendants, appellees.

BOBBITT, Justice.

David A. Jones died testate. His Will disposed of all assets constituting his estate. Our primary inquiry is to ascertain the testator's intent. Wachovia Bank & Trust Co. v. Miller, 223 N.C. 1, 25 S.E.2d 177. With this in mind, we consider each item in controversy.

1. Ford car. The agreed case states simply that the testator "had one 1950 two-door secondhand Ford automobile." Nothing else appearing, the Ford car is not comprehended in the bequest to the widow in Item II of "all of my household and kitchen furniture, jewelry, clothing and other articles of personal property used in and around my home." (Italics added.) On the contrary, it passed under Item IV, which comprehended all undesignated property. The court below so ruled.

2. War Bonds. The agreed case gives no information as to when or by whom the bonds were purchased. From the facts (1) that they were purchased before Mrs. Callahan was married, and (2) that they have matured, we may well infer that they were purchased years ago. Be that as it may, the testator had possession thereof until his death. He could have cashed them at any time. No delivery thereof was made to Mrs. Callahan during the testator's life. The executrix properly delivered these bonds to Mrs. Callahan; for, upon the testator's death, she became the sole owner thereof, not under the Will but under the terms of the bonds. Ervin v. Conn, 225 N.C. 267, 34 S.E.2d 402; Watkins v. Shaw, 234 N.C. 96, 65 S.E.2d 881.

Plaintiff's contention that Mrs. Callahan must account for the value of these bonds as an advancement is untenable. These bonds, retained by the testator until his death, do not fall within the definition of an advancement, to wit, "an irrevocable gift in praesenti of money or of property, real or personal, to a child by a parent, to enable the donee to anticipate his inheritance or succession to the extent of the gift." (Italics added.) Thompson v. Smith, 160 N.C. 256, 75 S.E. 1010.

Mrs. Callahan's ownership of the bonds is not affected by the Will. They are not to be *114 considered in the settlement of testator's estate. The court below so ruled.

3. Year's Support. The widow claims, for herself, G.S. § 30-15 and for her child by a former marriage, G.S. § 30-17, allowances for a year's support. The right to such allowances is statutory. Broadnax v. Broadnax, 160 N.C. 432, 76 S.E. 216, 42 L.R.A.,N.S., 725. G.S. § 30-15, by its express terms, is applicable only to the "widow of an intestate, or of a testator from whose will she has dissented". Here the widow did not dissent, but elected to take under the Will. Perkins v. Brinkley, 133 N.C. 86, 45 S.E. 465. As to the widow's child (by a former marriage), a statement of the contentions of plaintiff furnishes our only information concerning this child. The agreed case contains no statement of facts as to her status. Even so, G.S. § 30-17 has no application; for this statute, by its terms, its history, and when considered with the other provisions of G.S. Ch. 30, Art. 4, has reference only to the estate of an intestate or at most to an estate where the widow dissents from the Will. The court below so ruled.

4. Dower. The widow contends, not only that she is entitled to dower in the undesignated lot passing under Item IV, but that in the allotment of dower certain land previously conveyed by David A. Jones and wife, Olivia B. Jones, must be taken into account. This land was sold and conveyed to a purchaser in January, 1953, by fee simple warranty deed, duly executed and acknowledged. This deed conveyed the husband's title and the wife's inchoate right of dower. G.S. § 30-7.

Decisions such as Virginia-Carolina Chemical Co. v. Walston, 187 N.C. 817, 123 S.E. 196, and Brown v. McLean, 217 N.C. 555, 8 S.E.2d 807, have no application. In these cases, the lands involved were owned by the decedent at his death and constituted a part of his estate; and the wife's joinder in a mortgage or deed of trust then outstanding was deemed a conveyance of her inchoate right of dower only as security for the decedent's debt. Hence, the widow was entitled to have the assets of her husband's estate applied to the payment of his debts without impairment of her right of dower.

The land so conveyed in 1953 was not owned by the testator when he died. Since he did not own it, the suggestion that he intended that it be considered in the settlement of his estate is without merit. Nothing else appearing, it must be presumed that a testator intends to dispose only of property owned by him. Commercial Nat. Bank v. Misenheimer, 211 N.C. 519, 191 S.E. 14, 110 A.L.R. 1310. The court below properly ruled that this previously conveyed land should not be considered in the allotment of dower.

For the reasons stated, plaintiff's assignments of error are overruled.

The sole basis of defendants' appeal is the court's ruling that the widow is entitled to dower in the lot passing under Item IV.

Decedent died testate as to his entire estate. The proper construction of his Will, in our opinion, is that he intended that the assets not designated in any bequest or devise should descend and be distributed according to the applicable rules of descent and distribution in case of intestacy. Thus, as to undesignated real property, Mrs. Callahan takes as testator's lineal descendant, G. S. § 29-1, Rule 1, subject to the widow's right of dower therein, G.S. § 30-5; and as to undesignated personal property, this is to be equally distributed between the testator's widow and his only child. G.S. § 28-149, subd. 1.

For the reasons stated, defendants' assignments of error are overruled.

The judgment below provides that the costs be paid by the executrix as part of the costs of administration. If this ruling is erroneous, no prejudicial error is made to appear; for under the decision there and here, the costs so taxed ultimately will fall equally upon the widow (plaintiff) and the child (feme defendant). Since the *115 judgment is affirmed, in respect of both appeals, the costs in this Court will be taxed one-half to the widow and one-half to the child.

On plaintiff's appeal: Affirmed.

On defendants' appeal: Affirmed.

WINBORNE and HIGGINS, JJ., took no part in the consideration or decision of this case.