#### J. Q. ADAMS and Wife, ZEBBIE ADAMS, v. FRED WILSON, CRAWFORD BURROWS and Wife, SUDIE BURROWS, JACK WALL and Wife, SOPHRONIA WALL and BESSIE WILSON and J. K. WITHERINGTON, Guardian of FRED WILSON, SUDIE BURROWS, SOPHRONIA WALL, AND BESSIE WILSON.

(Filed 17 March, 1926.)

1. Wills — Posthumous Child — Descent and Distribution.

Where the father has died leaving a will not providing for a posthumous child, the child inherits as if the parent had died intestate, and takes his portion of the property as “heir at law.”

2. Judgments — Wills — Caveat — Equity — Estoppel — Statutes — Descent and Distribution.

Where the father dies leaving a will not providing for a posthumous child, and the child thereafter files a caveat to the will and the issue of devisavit vel non has been decided adversely to the .child, the position taken by the child that she is entitled to inherit from the father under the canons of descent applicable is not in conflict with the position taken as caveator of the will, and the judgment in this proceeding does not operate as an estoppel.

Appeal by plaintiffs from Dunn, J., January Civil Term, 1926, of Pitt. Error.

“Tbe court finds tbe following facts from tbe pleadings and from tbe admissions of tbe parties:

“1. Tbat on 27 June, 1893, Z. V. "Witherington died domiciled in Pitt County.

“2. Tbat on 13 July, 1893, a paper-writing purporting to be tbe last will and testament of tbe said Z. Y. "Witherington was admitted to probate.

“3. Tbat Zebbie Adams, tbe caveator of tbat will, was tbe only child of the said Z. Y. Witherington, she having been born 2 July, 1893, six days after tbe death of her father, having intermarried with her co-caveator, J. Q. Adams, on 14 January, 1914.

“4. Tbat tbe said Zebbie Adams, on 19 January, 1920, filed a caveat to said last will and testament.

*393“5. Tbat tbe said matter was beard before bis Honor, Judge Grady, at tbe May Term, 1923, of Pitt Superior Court, wbo, being of tbe opinion tbat tbe caveators were barred by tbe statute of limitation, dismissed tbe caveat.

“6. From said judgment tbe caveators appealed to tbe Supreme Court, and tbe judgment of bis Honor, Judge Grady, was affirmed by tbe Supreme Court, as appears in its opinion appearing in 186 N. 0., at page 152.

“7. Tbat on 7 April, 1923, and while tbe caveat above referred to was pending, tbe plaintiffs in tbis action, Zebbie Adams and J. Q. Adams, wbo are tbe same as tbe caveators in tbe caveat, instituted tbis action against tbe defendants to recover tbe land in controversy, wbicb is tbe same land wbicb was devised by tbe testator, Z. Y. Witherington, to Susan Witherington, bis mother, as appears in said last will and testament.

“8. Tbat at tbe time of bis death tbe said Z. Y. Witherington was seized in fee of tbe land devised to bis mother, subject to bis mother’s life estate.

“9. Tbat after tbe death of Z. Y. Witherington, tbe mother of tbe said Z. Y. Witherington conveyed tbe said land to tbe mother of tbe defendants, reserving a life estate, and tbe defendants claim said land as heirs at law of their said mother; tbe deed from tbe mother of tbe said Z. Y. Witherington to tbe mother of tbe defendants bears date of 1 April, 1906.

“10. Tbat Susan Witherington, mother of Z. Y. Witherington, died in tbe fall of 1919.

“Hpon tbe foregoing facts it is agreed by and between tbe parties thereto, tbat if tbe court should be of tbe opinion tbat tbe caveat filed by tbe present plaintiffs in tbis action to tbe last will and testament of tbe said Z. Y. Witherington, and wbicb was disposed of in tbe judgment of bis Honor, Judge Grady, is an estoppel to tbe maintenance of tbe present action by tbe plaintiffs, tbat tbe court shall adjudge tbe defendants to be tbe owners in fee and entitled to tbe possession of tbe land in controversy; but it is further agreed tbat if tbe court upon tbe foregoing facts shall be of tbe opinion tbat said judgment of Judge Grady did not operate as an estoppel to tbe maintenance of tbis action by tbe plaintiffs, then it shall be adjudged tbat tbe plaintiffs are tbe. owners in fee and entitled to tbe immediate possession of said land, it being understood tbat either party may appeal from such judgment as may be rendered by tbe court upon tbe foregoing facts.”

Tbe court being of tbe opinion upon tbe foregoing facts, tbat tbe caveat filed by tbe plaintiffs to tbe last will and testament of Z. V, *394Witberington estops them from now maintaining tbis action, and that they are barred and precluded from tbe maintenance of tbis action:

“It is now, therefore, considered, ordered and adjudged that tbe defendants be and they are declared to be tbe owners and entitled to tbe continued possession of tbe land in controversy, freed and discharged of any and all claims of tbe plaintiffs.

“And it is further ordered and adjudged that tbe defendants recover their costs to be taxed by tbe clerk.

“That tbe matter of rents and betterments be reserved, without prejudice, to await tbe opinion of tbe Supreme Court.”

To tbe foregoing judgment, plaintiffs excepted, assigned error and appealed to tbe Supreme Court.

F. Gr. James & Son and Julius Brown for plaintiffs.

Skinner & Whedbee and F. 0. Harding for defendants.

Clarkson, J.

Z. Y. Witberington died on 21 June, 1893, leaving a last will and testament, which was duly admitted to probate. He left one child, tbe plaintiff, Zebbie Witberington, who married J. Q. Adams, and they are tbe plaintiffs in tbis action. She was born 6 days after tbe death of her father. In tbe will of Z. Y. Witberington, be made no provision for bis unborn child, Zebbie Witberington. She was bis only child. Under C. S., 4169, she.was entitled to tbe fee-simple title to tbe property. Tbe question of dower does not arise, as Z. Y. Withering-ton’s mother owned a life estate in tbe land at tbe time of bis death.

In Nicholson v. Nicholson, 190 N. C., p. 123, it was said: “B. B. Nicholson having died leaving a widow and after-born son for whom be made no provision in bis will; tbe statute says that tbis son shall be entitled to such share and proportion of tbe parent’s estate as if be bad died intestate. . , . In tbe case of Flanner v. Flanner, 160 N. C., 126, Lizzie H. Flanner made a will as follows: T give, grant and devise to my beloved husband, William H. Flanner, all my property of every kind, real, personal and mixed.’ Tbe will was made 16 May, 1891. On 7 February, 1892, William B. Flanner, Jr., was born of tbe marriage and thereafter Lizzie H. Flanner died. Tbe Court in tbe case held that no provision was made for tbe child. See Rawls v. Ins. Co., 189 N. C., 268.”

Tbe serious question presented: Zebbie Adams and her husband on 19 January, 1920, filed a caveat to tbe will of her father, Z. Y. Witber-ington. Tbe plea of tbe statute of limitation was set up and tbe court decided that tbe caveator, Zebbie Adams, was barred. 186 N. C., 152. Tbe present suit was instituted by Zebbie Adams while tbe caveat filed by her was pending.

*395The defendants contend: “The simple legal question involved is whether or not under the record both in the caveat case and the instant case, the plaintiffs are estopped, they having had an opportunity to present all matters involved here in the caveat case.”

The caveat filed by Zebbie-Adams was, in part, as follows:

> “That Zebbie Adams, caveator above named, is the only child of the said Z. Y. Witherington; that she was born on 2 July, 1893, six days after the death' of her father, and that she intermarried with the plaintiff, J. Q. Adams, on 14 January, 1914.

> “That the paper-writing aforesaid, purporting to be the last will and testament of Z. Y. Witherington is not his will, for that as caveators are informed and believe, the signature to the same was obtained by undue influence and duress,” etc.

We said in Cook v. Sink, 190 N. C., 625: “They cannot 'blow hot and cold in the same breath.’ Any other view would be inequitable and unconscionable. Plaintiff or the other devisees cannot take inconsistent positions. 'Upon the principle similar to that applied to persons taking under wills, beneficiaries under a trust are estopped, by claiming under it, to attack any of its provisions. . . . So, also, one who accepts the terms of a deed or other contract must accept the same as a whole; one cannot accept part and reject the rest.’ Bigelow on Estoppel, 6 ed., p. 744. Fort v. Allen, 110 N. C., 191; Chard v. Warren, 122 N. C., 86; Freeman v. Ramsey, 189 N. C., 790. Where a person has, with knowledge of the facts, acted or conducted himself in a particular manner, or asserted a particular claim, title, or right, he cannot afterwards assume a position inconsistent with such act, claim or conduct to the prejudice of another.’ 16 Cyc., p. 785; Holloman v. R. R., 172 N. C., 376.”

In the present case — Zebbie Adams did not take inconsistent positions to the prejudice of anyone. If the will of Z. Y. Witherington was set aside for undue influence, etc., she was the only child of her father and would inherit his property. If the will was not set aside, he having made no provision for her, under C. S., 4169, she would still be entitled to his property.

Hoke, J., speaking to the question in Pritchard v. Williams, 175 N. C., p. 322, says: “It is only when tivo rights are inconsistent that the party is put to his election, and that the exercise of one or the failure to do so bars the other.” Tyler v. Capehart, 125 N. C., 64; Fleming v. Congleton, 177 N. C., 188; Randolph Edwards, ante, 334; Gilbert v. McCreary, 12 A. L. R., p. 1172 (W. Va., 104 S. E., 273).

In McGehee v. McGehee, 189 N. C., 560, Stacy, C. J., says: '"Election,’ in the sense it is used in courts of equity, says Judge Story, 'is the obligation imposed upon a party to choose between two inconsistent *396or 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. Every case of election therefore presupposes a plurality of gifts or rights with an intention, express or implied, of the party who has the right to control one or both, that one should be a substitute for the other. The party who is to take has a choice; but he cannot enjoy the benefits of both.’ 3 Story’s Eq. (14 ed.), p. 113; Sigmon v. Hawn, 87 N. C., 450. The doctrine of election, as applied to the law of wills, simply means, that one who takes under a will must conform to all of its legal provisions. See Elmore v. Byrd, 180 N. C., p. 120, where the subject is fully discussed, but without undertaking to reconcile the divergent authorities. Indeed, such an undertaking would be a herculean, if not a hopeless, task.”

On the record we cannot hold that plaintiff is estopped. She does not come within the old legal sayings: “Not having spoken when she should have been heard, she should not be heard when she should be silent.” Engineering Co. v. Boyd, ante, 143, and Pass v. Lea, 32 N. C., p. 410, cited by defendants are not inconsistent with the position here taken.

The law is said to be “favorable to the utility of the doctrine of estoppel, hostile to its technicalityLord Bramwell said: “Estoppels are odious, and the doctrine should never be applied without a necessity for it.” Shirley’s Leading Cases in the Common Law, 3rd English Ed., p. 410.

For the reasons given, there is

Error.