{ "id": 8549711, "name": "ALVESTA SPINKS GLOVER, UNMARRIED, JORHETTA ROBINSON EVANS and husband, HAYES EVANS, HOWARD GURNEY STRICKLAND, UNMARRIED, HELEN STRICKLAND ROBBINS and husband, ROBERT ROBBINS, Petitioners v. LONNIE A. SPINKS and wife, ANNIE SPINKS, Respondents", "name_abbreviation": "Glover v. Spinks", "decision_date": "1971-09-15", "docket_number": "No. 7119SC602", "first_page": "380", "last_page": "383", "citations": [ { "type": "official", "cite": "12 N.C. App. 380" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "276 N.C. 575", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562849, 8562726, 8562921, 8562828, 8562700, 8562879 ], "year": 1970, "opinion_index": -1, "case_paths": [ "/nc/276/0575-04", "/nc/276/0575-02", "/nc/276/0575-06", "/nc/276/0575-03", "/nc/276/0575-01", "/nc/276/0575-05" ] }, { "cite": "173 S.E. 2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": -1 }, { "cite": "7 N.C. App. 417", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550575 ], "year": 1970, "opinion_index": -1, "case_paths": [ "/nc-app/7/0417-01" ] }, { "cite": "131 S.E. 2d 344", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "259 N.C. 701", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562277 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/259/0701-01" ] }, { "cite": "132 S.E. 17", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1926, "opinion_index": 0 }, { "cite": "191 N.C. 334", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629037 ], "year": 1926, "opinion_index": 0, "case_paths": [ "/nc/191/0334-01" ] }, { "cite": "40 S.E. 2d 29", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1946, "opinion_index": 0 }, { "cite": "226 N.C. 662", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624411 ], "year": 1946, "opinion_index": 0, "case_paths": [ "/nc/226/0662-01" ] }, { "cite": "145 S.E. 2d 849", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "266 N.C. 333", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560540 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/266/0333-01" ] }, { "cite": "32 S.E. 2d 584", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1945, "opinion_index": 0 }, { "cite": "224 N.C. 800", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615404 ], "year": 1945, "opinion_index": 0, "case_paths": [ "/nc/224/0800-01" ] } ], "analysis": { "cardinality": 430, "char_count": 7682, "ocr_confidence": 0.563, "pagerank": { "raw": 6.111631171873413e-08, "percentile": 0.38091467880945956 }, "sha256": "7e3c6b0f543d167a4fbedd00d533bdc1637c753825b3e40c9875d3ecbf5a6f01", "simhash": "1:c03146fc464e284b", "word_count": 1336 }, "last_updated": "2023-07-14T18:50:27.087613+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge Mallard and Judge Hedrick concur." ], "parties": [ "ALVESTA SPINKS GLOVER, UNMARRIED, JORHETTA ROBINSON EVANS and husband, HAYES EVANS, HOWARD GURNEY STRICKLAND, UNMARRIED, HELEN STRICKLAND ROBBINS and husband, ROBERT ROBBINS, Petitioners v. LONNIE A. SPINKS and wife, ANNIE SPINKS, Respondents" ], "opinions": [ { "text": "CAMPBELL, Judge.\nThe Respondent brings forward five assignments of error in his brief which we will discuss in order.\n1. The denial of trial by jury. The demand for jury trial was not made in compliance with Rule 38 of the Rules of Civil Procedure. There was no controversy as to any of the facts and therefore no issue of fact to be determined by a jury. The denial of a jury trial was not error.\n2. The Respondent asserts that Maggie Spinks was required to make an election under the will of her husband, A. S. Spinks; and since she made no election, she was bound by his will. Respondent in his brief states:\n\u201cIt is undisputed that the deed from Elijah Allred and wife, Nancy Allred, to A. S. Spinks and wife, dated September 26, 1896, created an estate by the entirety.\u201d\nThe principle of election is not applicable. Maggie Spinks was not a beneficiary under the will of A. S. Spinks. Election is required where a beneficiary under a will has two conflicting claims to a decedent\u2019s estate. Benton v. Alexander, 224 N.C. 800, 32 S.E. 2d 584 (1945). Not only must the person required to make an election' to be a beneficiary under the will, but the intent of the testator to require such an election must clearly appear from the will. Burch v. Sutton, 266 N.C. 333, 145 S.E. 2d 849 (1966). In Lamb v. Lamb, 226 N.C. 662, 40 S.E. 2d 29 (1946), it is stated:\n\u201cWe should also say that as a matter of course there is no election implied or is indeed possible when the person whose right is adversely dealt with in the will receives from the testator no alternative benefit thereunder in lieu of that taken away. ...\u201d\nMaggie Spinks was not deprived of any interest she had in the 66-acre tract of land by reason of her husband, A. S. Spinks, attempting to devise it. Randolph v. Edwards, 191 N.C. 334, 132 S.E. 17 (1926). The trial judge was correct in his holding.\n3. Respondent asserts that the doctrine of estoppel should apply and that Maggie Spinks, having signed at the bottom of A. S. Spinks\u2019 holographic will, would be estopped to assert that the will of A. S. Spinks did not devise the 66-acre tract of land and that accordingly Petitioners, as some of the heirs of Maggie Spinks, would likewise be estopped. The signature of Maggie Spinks at the bottom of her husband\u2019s holographic will, constituted a complete nullity. A paper having no validity cannot be made the basis of an estoppel. Cruthis v. Steele, 259 N.C. 701, 131 S.E. 2d 344 (1963).\n4. The Respondent asserts that the plea of sole seizin is valid. The Respondent bases this assertion upon the doctrine of election or because of an estoppel. Both of these points have already been covered, and it would be vain to do so again.\n5. The final point raised by the Respondent is that Judge Blount, in denying the motion of Petitioners for summary judgment, had decided the case and that it was error for Judge Collier to overrule Judge Blount. The order of Judge Blount denying the motion- for summary judgment was based upon the pleadings and was not determinative of the c\u00e1se on its merits. Judge Collier, on the other hand, considered the case on its merits and made findings of fact which were supported by the pleadings and stipulations of the parties and the uncontroverted evidence. The findings of fact of Judge Collier supported the conclusions of law, and the judgment entered by Judge Collier is\nAffirmed.\nChief Judge Mallard and Judge Hedrick concur.", "type": "majority", "author": "CAMPBELL, Judge." } ], "attorneys": [ "Hoyle, Hoyle & Boone by Harry Rockwell and John T. Weigel, Jr., for Petitioner Appellees.", "Miller, Beck & O\u2019Briant by G. E. Miller and F. Stephen Glass for Respondent Appellants." ], "corrections": "", "head_matter": "ALVESTA SPINKS GLOVER, UNMARRIED, JORHETTA ROBINSON EVANS and husband, HAYES EVANS, HOWARD GURNEY STRICKLAND, UNMARRIED, HELEN STRICKLAND ROBBINS and husband, ROBERT ROBBINS, Petitioners v. LONNIE A. SPINKS and wife, ANNIE SPINKS, Respondents\nNo. 7119SC602\n(Filed 15 September 1971)\n1. Rules of Civil Procedure \u00a7 38\u2014 jury trial \u2014 lack of factual controversy\nWhere there was no controversy as to any of the facts in a-partitioning proceeding, a motion for a jury trial was properly denied. G.S. 1A-1, Rule 38.\n2. Wills \u00a7 64\u2014 doctrine of election \u2014 applicability\nElection is required where a beneficiary under a will has two conflicting claims to a decedent\u2019s estate.\n3. Wills \u00a7 64\u2014 election \u2014 surviving tenant by. the entirety \u2014 attempted devise of entirety property\nA surviving tenant by the entirety who was not a beneficiary under her husband\u2019s will was not required to make an election as to that part of the will which attempted to devise the entirety property to the testator\u2019s son.\n4. Estoppel \u00a7 5; Wills \u00a7 4; Husband and Wife \u00a7 17\u2014 devise of entirety property \u2014 wife\u2019s signature on husband\u2019s will \u2014 estoppel\nA wife who signed her name at the bottom of her husband\u2019s holographic will could not be estopped from challenging her husband\u2019s purported devise of entirety property, since the wife\u2019s signature constituted a complete nullity.\n5. Rules of Civil Procedure \u00a7 56; Courts \u00a7 9\u2014 denial of summary judgment by one judge \u2014 consideration of case on the merits by another judge\nAn order of one judge denying a motion for summary judgment does not prevent another judge from considering the case on its merits and rendering judgment.\nAppeal by Respondents from Collier, Judge, 3 May 1971 Session of Superior Court held in Randolph County.\nThis is a special proceeding instituted by Petitioners to sell land for partition. The petition was subsequently amended to seek actual partition rather than a sale.\nThe defendant, Lonnie A. Spinks (Lonnie) pleaded sole seizin and the action was transferred to the civil issue docket of the Superior Court.\nThe stipulations and admissions reveal this factual situation.\nThe land involved consists of 66 acres situated in Grant Township, Randolph County, North Carolina. This tract of land was conveyed to A. S. Spinks and wife, Maggie Spinks by deed from Elijah Allred and wife dated 26 September 1896 and recorded in Book 150, Page 22 of the Randolph County Public Registry.\nMaggie Spinks was the lawful wife of A. S. Spinks at the time of the conveyance in 1896 and remained such wife until the death of A. S. Spinks in February 1956.\n. A. S. Spinks left a holographic will which was duly probated as such and which was held by the Court as such. In re Spinks, 7 N.C. App. 417, 173 S.E. 2d 1 (1970), eert. denied, 276 N.C. 575 (1970).\nThe will of A. S. Spinks purported to devise to his son, G. R. Spinks, a tract of land containing 89 acres and which included the 66 acres involved in this proceeding.\nG. R. Spinks, the devisee in the will of A. S. Spinks, died testate in 1968. The will of G. R. Spinks purported to devise to his son, the Respondent Lonnie, the 89-acre tract of land which A. S. Spinks had purportedly devised to G. R. Spinks.\nMaggie Spinks died 14 May 1959 intestate and was survived by the Petitioners and the Respondent, her heirs-at-law.\nMaggie Spinks was not a beneficiary under the holographic will of her husband A. S. Spinks. She did not dissent from the will.\nIn January 1971 Petitioners moved for summary judgment. This motion was denied by Judge Blount 12 February 1971.\nOn 3 May 1971 Respondent requested a jury trial.\nJudge Collier heard the matter without a jury, found facts which were supported by the pleadings and stipulations, and then based upon those findings of fact concluded that Maggie Spinks, as the surviving spouse of A. S. Spinks, was the sole owner of the 66-acre tract of land at the time of her death, and that her heirs, including the Respondent Lonnie, were tenants in common of the 66-acre tract of land.\nFrom the judgment entered by Judge Collier, the Respondent Lonnie appealed.\nHoyle, Hoyle & Boone by Harry Rockwell and John T. Weigel, Jr., for Petitioner Appellees.\nMiller, Beck & O\u2019Briant by G. E. Miller and F. Stephen Glass for Respondent Appellants." }, "file_name": "0380-01", "first_page_order": 406, "last_page_order": 409 }