#### W. T. WHITTEN, S. R. WHITTEN, J. W. WHITTEN, J. O. B. PALMER and Wife, MINNIE W. PALMER, Suing in Behalf of Themselves and All Others, Heirs of SALLIE S. WHITTEN, Deceased, Who Shall Join Herein as Parties Plaintiffs, v. S. T. PEACE, Individually and as Surviving Executor of SAMUEL S. WHITTEN, Deceased.

(Filed 1 October, 1924.)

1. Wills — Executors and Administrators — Nonresidents — Witnesses— Statutes.

Where a nonresident testator has left a will disposing of certain lands in this State, including his wife as a beneficiary, with two witnesses required by O. S., 4131, an affidavit he has attached thereto' as a part thereof, stating that none of his wife's money had been used in his acquisition of the lands disposed of, signed without witnesses, cannot alone be construed as showing an animo testandi, or as having the effect of passing thereunder any of the testator’s lands here situated under the will to which it was attached: Semble, a will properly attested and otherwise sufficient under the laws of another State would operate to pass title to lands situated here. O. S., 4152.

S. Trusts — Husband and Wife — Deeds and Conveyances — Purchase Money — Resulting Trusts.

A resulting trust in favor of the wife is not created in the husband’s favor solely by his paying the purchase price for lands with his own money and tailing the deed to his wife, the presumption of a gift arising from the relationship.

3. Deeds and Conveyances — Husband and Wife — Probate — Statutes— Void Deeds — Color.

A deed of her own lands from the wife to her husband, not certified to by the probate officer that it was “not unreasonable or injurious to her” (C. S., 2515), is void as a conveyance, though it may be regarded as color of title, and ripen the title in seven years under sufficient adverse possession for that period of time.

*2994. Same — Title — Adverse Possession — Husband and Wife — Tenant by the Curtesy.

Possession, to ripen title to land under color of title, must be adverse, and *it is insufficient where a husband has the right of possession as tenant by the curtesy, and has accordingly entered therein, and he and 'his executor have been in possession for the required period, without claiming under another an adverse right.

5. Wills — Devise—Election of Remedies — Heirs at Daw.

Where a testator has devised his lands, excluding those his wife attempted to convey to him under a void deed, the acceptance of benefits under the will does not put her heirs at law to their election to take the lands described in her void deed as her heirs at law.

Appeal by defendant from Lyon, J., at May Special Term, 1924, of YaNce.

By consent, tbe judge presiding beard and determined tbe issues of fact and law arising upon tbe pleadings in tbis action. Tbe facts found by tbe judge, material to tbe exceptions upon wbicb assignments of error are based, are as follows: ■

(1) Tbat Sallie S. Wbitten became tbe owner in fee and entered into possession of tbe lot of land situate in tbe city of Henderson, described in tbe complaint, by virtue of a deed executed by M. S. Alley and others, dated 15 May, 1893, and duly recorded in Yance County, conveying tbe same to ber.

(2) Tbat a paper-writing, dated 17 November, 1897, executed by Sallie S. Wbitten, and sufficient in form to convey tbe said lot of land to Samuel S. Wbitten, ber busband, was recorded in tbe office of tbe register of deeds of Yance County on 15 September, 1914; tbat tbe execution of tbe said paper-writing was acknowledged by Sallie S. Wbitten on 17 November, 1897, before a notary public, whose certificate did not comply with C. S., 2515, in tbat said certificate does not state tbat tbe notary public found and concluded tbat tbe execution of tbe said paper-writing by Sallie S. Wbitten was “not unreasonable or injurious to ber.”

(3) Tbat Sallie S. Wbitten died, 29 July, 1912, intestate, leaving surviving ber busband, Samuel S. Wbitten, and their seven children, including tbe plaintiffs herein, as ber heirs at law.

(4) Tbat Samuel S. Wbitten was in possession of tbe said lot of land from bis wife’s death, on 29 July, 1912, until bis death, on 7 September, 1919, and tbat tbe defendant, executor and trustee under bis will, has been in possession of tbe same since tbe death of tbe said Samuel S. Wbitten, receiving tbe rents and profits therefrom.

(5) Tbat tbe last will and testament of Samuel S. Wbitten, with codicils thereto, was duly probated in Virginia, and thereafter certified *300and recorded in Vance County; that by said will and codicils Samuel S. Whitten devised and bequeathed property to each of his children by Sallie S. Whitten, his wife, including the plaintiffs herein, but made no specific devise of, or reference to, the lot of land described in the complaint; that the will contains a general residuary clause, by which-the testator devised the residue of his estate to his executor upon certain trusts therein set out; that a paper-writing was duly probated in Virginia and certified and recorded in Vance County, North Carolina, as a codicil to the said will, in words as follows:

State oe Virginia — City of Roanoke.

To wit, I, Samuel S. Whitten, of the city of Roanoke, Va., do hereby make oath and say that in the year 1884 I voluntarily changed my name from Samuel L. Whitten to Samuel S. Whitten. This change was made on my own volition and without any particular reason.

I also further make oath and say that my wife, Sallie S. Whitten, never had any of her money in any property that I own or ever did own. It is my desire that this affidavit be made part of my last will and testament.

Given under my hand, this 13 May, 1919.

(Signed) Samuel S. WhitteN.

Subscribed and sworn to before me, notary public for the city and State aforesaid, this 13 May, 1919.

(Signed) W. P. BowliNG,

Notary Public. (Seal)

My commission expires 1 August, 1920.

Upon the facts found by the court, which are fully set out in the judgment, it is ordered and adjudged that the children of Sallie S. Whitten, as her heirs at law, are the owners in fee and entitled to the possession of the land described in the complaint, and that they recover of the defendant possession of the said land, together with the rents and profits therefrom since the death of Samuel S. Whitten.

It is ordered that such of the children and heirs at law of Sallie S. Whitten as have not been formally named as parties hereto shall not receive their portion of the recovery adjudged herein until admitted as formal parties, which may be done by the clerk, and shall contribute their proportion of the expenses of the action.

It is ordered that a reference be had to ascertain the amount which plaintiffs are entitled to recover of the defendant on account of rents and profits from the said land since the déath of Samuel S. Whitten.

*301To tbis judgment tbe defendant excepted, and appealed to tbis Court, assigning as error:

(1) Tbe failure of tbe judge to consider and give full effect to tbe paper-writing dated 13 May, 1919, probated and recorded as a codicil to tbe will of Samuel S. Wbitten.

(2) Tbe failure of tbe judge to consider and give full effect to tbe deed dated 17 November, 1897, and recorded IS September, 1914, from Sallie S. Wbitten to Samuel S. Wbitten, ber busbaud.

(3) Tbe failure of tbe judge to bold that, by reason of tbe possession of tbe said land by Samuel S. Wbitten under tbe deed from Sallie S. Wbitten, dated 17 November, 1897, from tbe date of its registration, on 15' September, 1914 to bis death,’ and by defendant as bis executor and trustee under bis will since bis death, tbe plaintiffs are not tbe owners and entitled to possession of tbe said land.

(4) Tbe failure of tbe judge to bold that plaintiffs could not recover tbe land because, as legatees and devisees under tbe will of Samuel S. Wbitten, by which tbis lot of land was devised under tbe residuary clause to tbe defendant, tbe plaintiffs were estopped to claim tbe same against tbe will.

These aré tbe only assignments of error discussed,in tbe defendant’s brief, and relied upon by him in bis contention that tbe judgment should be reversed and a new trial ordered.

T. M. Pittman and, Brawley & ■Gantt for plaintiffs, appellees.

J. P. Zollicoffer and Sides & Sons for defendant, appellant.

CONNOR, J.

Tbe first assignment of error is based upon tbe contention of defendant that tbe judge failed to give full force and effect to the paper-writing dated 13 May, 1919.

Tbe will and all codicils thereto, except tbis paper-writing, were executed and attested in accordance with tbe laws of North Carolina, tbe same having been signed by -Samuel S. Wbitten and subscribed by two witnesses, as required by C. S., 4131. Tbis paper-writing was signed b'y Samuel S. Wbitten, who refers to it as an affidavit, not as a codicil to bis will. It is not subscribed by two witnesses, nor does it appear to have been executed animo testandi. It is true that be expresses a desire “that tbis affidavit be made a part of my last will and testament,” but it does not affect or purport to affect tbe disposition of bis property made in bis will and codicils, which are valid under the laws of North Carolina.

It may be that, having been probated in Virginia and certified and recorded in Yance County, in accordance with tbe provisions of C. S., 4152, as a codicil, it cannot now be attacked collaterally (Spencer v. *302 Spencer, 163 N. C., 83), but by the express provisions of C. S., 4152, when any will made by a citizen of any other State has been duly proven and allowed according to the laws of such State, and a certified copy thereof has been duly recorded in any county of this State in which is situate property owned by testator, and such will contains any devise or disposition of real estate in said county, such devise or disposition shall not have any validity or operation unless the will is executed according to the laws of North Carolina. McEwan v. Brown, 176 N. C., 249.

This paper-writing, therefore, whether it is valid as a codicil, for any purpose or not, has “no validity or operation” with respect to the lot of land described in the complaint and situate in Yance County.

Even if the inference sought to be drawn by the defendant is permissible, and the statement contained therein, that “my wife, Sallie S. Whitten, never had any of her money in any property that I own or ever did own,” is evidence that he paid the purchase money for the lot conveyed to his wife by M. S. Alley and others, this fact did not affect her title to the said land. Where a husband pays the purchase money for land conveyed to his wife, no resulting trust to him arises from this fact, for the law .presumes, from the relationship, that it is a gift. Nelson v. Nelson, 176 N. C., 191; Anderson v. Anderson, 177 N. C., 401.

Defendant’s first assignment of error is therefore not sustained. The second assignment of error is that the judge failed to consider and give full force and effect .to the deed of Sallie S. Whitten to Samuel S. Whitten, dated 17 November, 1897, and recorded in Vance County on 15 September, 1914.

The certificate of the notary public who took the acknowledgment of Sallie S. Whitten that she signed the said deed does not state that it appeared to his satisfaction and that he found that the execution of the same by her was “not unreasonable or injurious to her.” The deed is therefore void. C. S., 2515. Davis v. Bass, ante, 200; Smith v. Beaver, 183 N. C., 497; Butler v. Butler, 169 N. C., 584. The second assignment of error is therefore not sustained.

In his third assignment of error the defendant contends, however, that conceding that the deed, for the reason stated, has no effect or validity as a deed of conveyance, it is color of title, and that possession of the land described therein by the defendant and Samuel S. Whitten, his testator, claiming under this deed, for seven years, is a perpetual bar against the plaintiffs, heirs at law of Sallie S. Whitten, and ripens into a perfect title in the defendant. C. S., 428.

This Court has held, in Norwood v. Totten, 166 N. C., 649, that a deed executed by a wife conveying land to her husband, void for failure *303of the probate officer to comply with C. S., 2515, is, nevertheless, color of title, and that adverse possession by the husband under such deed for seven years will ripen into a perfect title. See, also, Clendenin v. Clendenin, 181 N. C., 465; Elmore v. Byrd, 180 N. C., 120; Adderholt v. Lowman, 179 N. C., 547; Shermer v. Dobbins, 176 N. C., 547; King v. McRackan, 168 N. C., 621.

The third assignment of error, therefore, presents the question whether or not defendant and his testator have had such possession of the land described in the complaint, under the deed of Sallie S. Whitten, as bars the claim of her heirs at law and ripens into a perfect title to the land in the defendant.

Upon the death of Sallie S. Whitten, in 1912, intestate, her husband, Samuel S. Whitten, issue of their marriage, having been born alive, became and was entitled to an estate as tenant by the curtesy, during his life, in the said lot of land, the wife having been seized in fee of the same during the coverture. O. S., 2519.

Samuel S. Whitten was, therefore, entitled, as against the heirs at law of Sallie S. Whitten, to the possession of the said lot of land as tenant by the curtesy, during his life. The judge finds as a fact that Samuel S. Whitten was in possession of the lot of land from the death of his wife until his own death, and that defendant, as his executor, has continued in possession since his death. No facts are found by the judge, and none appear from the evidence, that the entry of Samuel S. Whitten into possession at the death of his wife was adverse to her heirs at law. The law presumes that he entered and was in possession rightfully, and therefore presumes that he entered into possession as tenant by the curtesy for his life. Vanderbilt v. Chapman, 175 N. C., 11.

The possession of Samuel S. Whitten, and of defendant claiming under him, has been continuous for more than seven years. Such possession, although under color of title, does not ripen into a perfect title in the defendant unless it was adverse. In Vanderbilt v. Chapman, supra, Justice Allen says: “Possession which will ripen an imperfect into a perfect title must not only be actual, visible, exclusive and continued for the necessary period of time, but it must be under a claim of title. It is the occupation with an intent to claim against the true owners which renders the entry and possession adverse.” lie cites Parker v. Banks, 79 N. C., 485, and Snowden v. Bell, 159 N. C., 500.

Chief Justice Ruffin, in Green v. Harman, 15 N. C., 158, often cited and approved by this Court, says: “The operation of the statute of limitations depends upon two things. The one is possession, continued for seven years, and the other is the character of that possession — that it should be adverse.”

*304The fact, therefore, found by the judge, that Samuel S. 'Whitten was in possession from the death of his wife until his own death, and that defendant, his executor and trustee, has been in possession since his death — more than seven years — is not sufficient, for Samuel S. Whitten entered into possession rightfully and not adversely to the plaintiffs, heirs at law of his wife.

In 1914 a deed executed by his wife conveying the land to him was recorded in Yanee County, which, although void as a deed of-conveyance, was good as color of title. There is no fact found or evidence in the record which shows that the character of his possession was changed after the registration of this .deed. At no time prior to his death could plaintiffs have maintained an action against him for the possession of the land, for he was entitled to possession as tenant by the curtesy for his life, and their right of action for possession did not accrue until the falling-in of his life estate at his death, in 1919. “The ¡possession of real property cannot be considered as adverse to one who during its continuation did not have a right of entry, as, for instance, a remain-derman or reversioner.” 1 R. C. L., 758; Hauser v. Craft, 134 N. C., 319; Maynard v. Sears, 157 N. C., 1. We approve as the law applicable to the facts of this case the statement in the note to be found in 9 L. R. A. (N. S.), p. 750, as follows:

> “It may be said to be a well-settled rule, with but few exceptions, that a tenant for life cannot acquire an outstanding paramount title as against the remainderman and gain any rights by claiming thereafter to hold by adverse possession, unless, at least, it appears that he has clearly renounced all claim as tenant, to the knowledge of the remain-derman.” The mere registration of a void deed, although good as color of title, by the life tenant in possession is not evidence of such a renunciation of his right of possession as tenant for life, and of his claim under-the color of title, as to put the heirs at law upon notice that thereafter he is claiming adversely to them.

The third assignment of error is not sustained.

The fourth assignment of error is that the judge failed to hold that plaintiffs, as devisees and legatees under the will, by which the testator .devised the lot of land to the defendant, are estopped to set up title to the lot of land against the will.

The principle invoked to sustain this assignment of error is well established and has been uniformly recognized and enforced by this Court. It has no application, however, to the facts of this case, for the judge has found that the will made no specific devise of, or reference to, this lot of land. This finding is fully sustained by an inspection of the will. Defendant admits in his answer that he claims title to the lot of *305land under tbe will of bis testator. This claim is under item 11 of tbe will, wbicb is as follows:

> “It is -my will and desire, and I so direct, tbat all tbe rest and residue of my estate and property shall be beld intact until tbe death of my wife, Mamie Whitten, by my executors.” Tbis lot of land, not being included within tbe description, “all of tbe rest and residue of my estate and property,” was not devised in tbe will, and tbe plaintiffs were not put to an election with respect to it. There is no finding and no evidence tending to show tbat plaintiffs have accepted benefits under tbe will, or claim adversely to tbe will; but tbis is immaterial, for in no event, upon tbe facts as they appear in tbe record, does tbe doctrine of election apply in tbis case.

Tbe judgment, upon tbis aspect of tbe case, is fully sustained by tbe learned and exhaustive opinion of Justice Walker in Elmore v. Byrd, 180 N. C., 122.

Tbe fourth assignment of error is not sustained.

Tbe fifth assignment of error is to tbe judgment, and is based upon a formal exception, wbicb is overruled. There is no error in tbe record, and tbe judgment is

Affirmed.