{ "id": 8627856, "name": "COMMERCIAL NATIONAL BANK OF CHARLOTTE, NORTH CAROLINA, Executor of the Last Will and Testament of THOMAS M. MISENHEIMER, Deceased, v. CHARLES A. MISENHEIMER and J. J. MISENHEIMER", "name_abbreviation": "Commercial National Bank of Charlotte v. Misenheimer", "decision_date": "1937-04-28", "docket_number": "", "first_page": "519", "last_page": "525", "citations": [ { "type": "official", "cite": "211 N.C. 519" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "208 N. C., 246", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8601830 ], "opinion_index": 0, "case_paths": [ "/nc/208/0246-01" ] }, { "cite": "188 N. C., 298", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653674 ], "opinion_index": 0, "case_paths": [ "/nc/188/0298-01" ] }, { "cite": "77 N. C., 421", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8682982 ], "opinion_index": 0, "case_paths": [ "/nc/77/0421-01" ] }, { "cite": "187 N. C., 379", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653823 ], "opinion_index": 0, "case_paths": [ "/nc/187/0379-01" ] }, { "cite": "30 L. R. A. (N. S.), 644", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": 0 }, { "cite": "38 N. J. Eq., 516", "category": "reporters:state", "reporter": "N.J. Eq.", "case_ids": [ 778335 ], "opinion_index": 0, "case_paths": [ "/nj-eq/38/0516-01" ] }, { "cite": "62 Cal. App., 265", "category": "reporters:state", "reporter": "Cal. App.", "case_ids": [ 2088034 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/cal-app/62/0265-01" ] }, { "cite": "88 N. C., 581", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683381 ], "opinion_index": 0, "case_paths": [ "/nc/88/0581-01" ] }, { "cite": "189 N. C., 558", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654644 ], "opinion_index": 0, "case_paths": [ "/nc/189/0558-01" ] }, { "cite": "180 N. C., 120", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653139 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/180/0120-01" ] }, { "cite": "196 N. C., 19", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 } ], "analysis": { "cardinality": 716, "char_count": 17706, "ocr_confidence": 0.491, "pagerank": { "raw": 1.7919308165821886e-07, "percentile": 0.7151204568297225 }, "sha256": "c9ebed4b893bd5e14e1d4d47c68bdb3aa22148b8da70a3d2b993f060dcaf41a0", "simhash": "1:9a04b413f6c45b2d", "word_count": 3004 }, "last_updated": "2023-07-14T22:38:14.990140+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "COMMERCIAL NATIONAL BANK OF CHARLOTTE, NORTH CAROLINA, Executor of the Last Will and Testament of THOMAS M. MISENHEIMER, Deceased, v. CHARLES A. MISENHEIMER and J. J. MISENHEIMER." ], "opinions": [ { "text": "DeviN, J.\nThe appeal in this ease involves the construction of the will of Thomas M. Misenheimer, and the principal question presented is whether the testator\u2019s use of the words \u201cmy life insurance\u201d manifested the intention to dispose of policies of insurance in which Charles A. Misenheimer was named beneficiary as well as those policies made payable to his estate.\nThe appellant contends that the language used, considered in connection with the attendant circumstances, indicates the intention to include the policies payable to Charles A. Misenheimer in the bequest contained in the second item of the will, and that thereby the devisee was placed in position where he was required to elect whether he should claim the insurance, or take under the will, and that, having elected to take under the will, a court of equity should not now permit him to claim and retain sole beneficial interest in these insurance policies. This view was strongly pressed in the argument by the able counsel for the appellant.\nBut the court below has found the facts against this contention. Considering the evidence presented and interpreting the language of the will in the light of the surrounding circumstances, the trial judge has found the facts to be, and so decided, that by the words used in the will the testator included and disposed of only the policies of life insurance which were made payable to his estate. While- the testimony offered was susceptible of inferences favorable to the appellant\u2019s contention, it did not necessarily compel the conclusion that the testator intended by the use of the words \u201cmy life insurance\u201d to dispose of the property of another. The facts found by the court are sufficient to support the judgment.\nIn order to call for the application of the equitable principle of election the intention of the testator to dispose of property not bis own must be clear and unmistakable. 28 R. C. L., 330; Peel v. Corey, 196 N. C., 19.\nIn Elmore v. Byrd, 180 N. C., 120, Walker, J., speaking for the Court, discusses learnedly and fully the doctrine of election in equity, and defines it as follows: \u201cAn election in equity is a choice which a party is compelled to make between the acceptance of a benefit under a written instrument and the retention of some property already bis own which is attempted to be disposed of in favor of a third party by virtue of the same paper.\u201d In the application of the principle to wills it simply means that be who takes under a will is required to conform to all its provisions. McGehee v. McGehee, 189 N. C., 558.\nIn the interpretation of a will there is a prima facie presumption that the testator intended only to dispose of what is bis own, what be has a right to give. To overcome this presumption the intention must clearly appear. 69 C. J., 1089, 1090. \u201cIf it be doubtful by the terms of the will whether the testator bad in fact a purpose to dispose of property belonging to another, that doubt will govern the courts, so that the owner, even though be derive benefit under the will, will not be put to election.\u201d Isler v. Isler, 88 N. C., 581; Elmore v. Byrd, 180 N. C., 120.\nIn In re Estate of Moore, 62 Cal. App., 265, it was said: \u201cWhere the testator has a partial or limited interest in the property devised, the presumption is that be intended to dispose of that which be 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.\u201d And where in such case be uses general words in disposing of it, no question of election arises. Waggoner v. Waggoner, 68 S. E. (Va.), 990.\nThe rule seems to be well established that in eases where the testator\u2019s language can have full effect when applied only to bis own property, be is presumed to have intended to give only the property over which he has power of disposition. Pratt v. Douglas, 38 N. J. Eq., 516; 30 L. R. A. (N. S.), 644, note. \u201cOf two possible constructions, that which favors the conclusion that the testator was disposing only of bis own moiety of the property will be adopted.\u201d In re Estate of Moore, supra.\nIn Royal v. Moore, 187 N. C., 379, where the beneficiaries in life insurance policies were put to election, the will used the words \u201call my insurance,\u201d together with designation of the particular policies. To the same effect is the holding in Weeks v. Weeks, 77 N. C., 421.\nIn Whitten v. Peace, 188 N. C., 298, tbe doctrine of election was not involved because there was no specific devise. In Van Schaack v. Leonard, 45 N. E. (Ill.), 982, where tbe legatee was put to election, tbe bequest was \u201cThe proceeds derived from all insurance policies upon my life.\u201d In that case recognition was given to the rule that where a testator has a partial interest in property, it will be understood that he intended to dispose of that interest only, unless an intention to dispose of property not his own clearly appears.\nThe facts in the ease at bar, as they are shown by the record, warrant the holding by the court below that the words \u201cmy life insurance\u201d did not include those policies in which he had named Charles A. Misenheimer as sole beneficiary, and that the doctrine of election did not apply.\nThe specifications of error addressed to the other questions involved do not require elaboration.\nWhile ordinarily rents collected by the executor from devised real property would go to the devisee (Carr v. Carr, 208 N. C., 246), the order of Harding, J., authorizing the application of collections of rents to repairs, taxes, insurance, and mortgage indebtedness on the particular tract from which the rents were derived, would not be injurious to the interest of the appellant, and his exception to the order is without substantial merit.\nThe exception to the ruling of the court below in permitting defendant Charles A. Misenheimer to testify whether he intended to elect between the retention of the proceeds of the policies of insurance and the devise under the will, becomes immaterial in view of the holding that he was not put to election.\nThe bequest that one-half of the proceeds from life insurance be applied to the liens on the lands owned jointly with defendant Charles A. Misenheimer would seem to justify the reasonable conclusion, gathered from a consideration of the entire will in the light of the surrounding circumstances, that the testator did not intend to provide for the payment of the entire mortgage debts, which had been created prior to his acquisition of the property, but rather that the devisees should take cum onere, and that the remainder of the mortgage debt should be carried or arranged by those to whom he devised the lands.\nThe provision in the judgment which authorizes the plaintiff, as executor and commissioner, to sell certain real estate for the satisfaction of the respective liens thereon (unless other arrangements should be made by the interested parties), and to handle and disburse the excess in accordance with the last will and testament of Thomas M. Misenheimer seems to be proper under the terms of the will as construed, and affords the appellant no ground of complaint.\nAfter consideration of all the assignments of error, we find in the judgment no error, and it is\nAffirmed.", "type": "majority", "author": "DeviN, J." } ], "attorneys": [ "H. L. Taylor for J. J. Misenheimer, appellant.", "Tillett, Tillett & Kennedy and Taliaferro & Clarkson for Charles A. Misenheimer, appellee." ], "corrections": "", "head_matter": "COMMERCIAL NATIONAL BANK OF CHARLOTTE, NORTH CAROLINA, Executor of the Last Will and Testament of THOMAS M. MISENHEIMER, Deceased, v. CHARLES A. MISENHEIMER and J. J. MISENHEIMER.\n(Filed 28 April, 1937.)\n1. Wills \u00a7 44 \u2014 In order for principle of election to apply, testator must show clear intention to dispose of property not his own.\nThe principle of election under a will requires that he who takes under the will must conform to all of its provisions, but the prima facie presumption is that the testator intended to dispose only of his own property, and in order for this presumption to be overcome and the principle of election to apply, the intention of testator to dispose of property not his own must be clear and unmistakable.\n2. Same \u2014 Evidence held to support finding that testator did not intend to dispose of property not his own and put beneficiary to election.\nTestator directed that one-half \u201cof my life insurance\u201d be applied to an indebtedness on property owned by testator in common with his brother, and that the other half of the insurance money be divided equally between his two brothers. In an action to construe the will, jury trial was waived and it was agreed the court should find the facts. The court found from the evidence that there were four policies of insurance on testator\u2019s life, two made payable to his estate and two in which his brother, who was tenant in common with him in the lands, was named beneficiary, that one-half the proceeds of the policies in which the estate was named beneficiary was approximately sufficient to discharge one-sixth of the indebtedness against the lands held in common. Held: It not appearing that testator intended to discharge the entire indebtedness on his interest in the property owned as tenant in common, but that the devisees of such interest should take cum onere, the evidence, together with consideration of the entire will in the light of the surrounding circumstances, supports the conclusion by the court that testator did not intend to dispose of the insurance policies in which his brother was named beneficiary, and judgment that the brother was not put to his election in regard to such policies is without error.\n3. Wills \u00a7 48-\nWhile ordinarily rents collected by the executor from devised realty go to the devisee, an order directing application of rents to repairs, taxes, insurance, and mortgage indebtedness against the property, is not injurious to the devisees, and an exception to such order is without merit.\n4. Appeal and Error \u00a7 46\u2014\nWhere it is determined on appeal that the judgment that a devisee was not put to his election under the will is without error, exceptions to the admission of testimony by the devisee as to whether he intended to elect to take under the will become immaterial.\n5. Wills \u00a7 46\u2014\nDevisees of property take same subject to prior mortgage debt thereon, and judgment that if the debt were not arranged for by the interested parties, the executor should sell the land to satisfy the liens, and disburse the excess in accordance with the terms of the will, is proper.\nAppeal by defendant J. J. Misenbeimer from Gowper, Special Judge, at October, 1936, Extra Oivil Term of Mecklenbubg.\nAffirmed.\nThis was an action instituted by the plaintiff, executor of Thomas M. Misenheimer, deceased, for the construction and interpretation of the will of the testator, who died 4 January, 1935. The defendants are the testator\u2019s brothers, next of kin, and the sole devisees under his will.\nThe provisions of the will referred to are as follows:\n\u201cItem I. I direct my executor, hereinafter named, to pay all of my just debts out of the first money that comes into its hands.\n\u201cItem II. I bequeath one-half of my life insurance to apply to the indebtedness of the estate which my brother Charlie and I, jointly, own. Tbe other one-half of my life insurance is to be divided equally between my brothers, Charlie and Jay. (Eeferring to Charles A. Misenheimer and J. J. Misenheimer.)\n\u201cItem III. To my brother Jay I devise and bequeath my interest in the property known as the Fifth Street property, at 305 West Fifth Street; and also to my brother Jay I devise and bequeath one-third interest in the property at 206 North Tryon Street.\n\u201cItem IY. To my brother Jay I give and bequeath my automobile and my saddle horse.\n\u201cItem Y. I give, devise, and bequeath to my brother, Charlie A. Misenheimer, the remainder of my estate, absolutely.\n\u201cItem YI. I nominate, constitute, and appoint the Commercial National Eank of Charlotte, North Carolina, a corporation chartered under the laws of the United States of America, as executor of this my last will according to the true intent and meaning thereof, with full powers to pledge, mortgage, sell at either public or private sale, dispose of, invest, reinvest, and otherwise deal with all or any part of my property and estate for the purpose of carrying out the terms and provisions of this will.\u201d\nPending the action, Harding, J., made an order 25 June, 1935, authorizing the executor, among other things, to collect one-half the rents from devised real estate, to keep separate account, and to pay therefrom the pro rata share of the testator\u2019s estate for repairs, taxes, insurance, and interest or principal of mortgage indebtedness. To this order appellant preserved his exception.\nWhen the cause came on to be heard in October, 1936, jury trial was waived, and it was agreed that the court should find the facts and render judgment in accordance with his conclusions therefrom.\nA statement of the facts found by the court may be briefly summarized as follows: At the time of the death of the testator there were in force upon his life four policies of life insurance in the sum of $5,000 each, two of said policies payable to defendant Charles A. Misenheimer, as sole beneficiary, and two policies payable to the testator\u2019s estate. About four days prior to testator\u2019s death, at his request, Charles E. Earnhardt, a relative, brought to him from testator\u2019s office certain papers. These included the four insurance policies and a paper in testator\u2019s handwriting. The paper writing was a tentative draft of his will (substantially in same form as later executed and hereinbefore quoted), and at the top of the paper appeared the words and figures following: \u201cStocks 20,000. Life Insurance 20,000. Barnhardt 165 shares.\u201d The testator delivered the four policies and the paper to Barnhardt, who placed the policies in his safe and handed the paper to an attorney for drafting the will in legal form. Upon the execution of the will it also was placed in Barnhardt\u2019s safe.\nAfter tbe death of the testator the plaintiff executor collected from the insurance company approximately $10,000, the amount of the two policies payable to the estate, and defendant Charles A. Misenheimer collected the amount due under the two policies which were payable to said Charles A. Misenheimer as beneficiary.\nAt the time of his death the testator and defendant Charles A. Misen-heimer owned as tenants in common of equal shares, subject to encumbrances, four tracts of land described as (1) Crab Orchard Township farm, (2) Charlotte and Sharon Township farm, (S) Fifth Street property, and (4) North Tryon Street property. These parcels of real property were acquired by the test\u00e1tor and Charles A. Misenheimer subject to prior deeds of trust, amounting at testator\u2019s death to $10,000 on the Charlotte and Sharon Township farm, $6,000 on Fifth Street property, and $27,500 on North Tryon Street property. By a paper writing, duly executed, the testator and defendant Charles A. Misenheimer agreed to be personally bound for the amounts secured by the said deeds of trust and to release the estates of those from whom the lands were acquired. The testator left personal property sufficient in value to pay all personal debts of the testator exclusive of those secured by deeds of trust on the real property.\nFrom the facts found the court below decided, and so adjudged, that the testator\u2019s will did not include or dispose of the two policies of life insurance in which defendant Charles A. Misenheimer was named as sole beneficiary, and that the will included and disposed of only the policies, and proceeds thereof, which were payable to the estate of the testator. And that of the sum received as proceeds of the two last mentioned policies, one-half should be applied towards the payment, proportionately, as credits on the debts secured by the deeds of trust on the lands, and one-half thereof divided equally between the defendants, \u201cprovided and to the extent such amount is not required by the executor for paying debts of testator and cost of administration.\u201d It was further adjudged that defendant J. J. Misenheimer should take the one-half interest of the testator in the Fifth Street property, and one-third undivided interest in the North Tryon Street property, \u201csubject to the balance due upon the mortgage debts outstanding against same after the application upon such mortgage debt of that portion of the insurance fund properly applicable thereto\u201d; and that defendant Charles A. Misenheimer should, as residuary devisee, take the remaining real estate of the testator subject to the mortgage debts thereon remaining after application of insurance money as aforesaid.\nIt was further decreed that the plaintiff, as commissioner, be authorized to sell, free of encumbrance, at private sale, subject to confirmation, the lands designated as second, third, and fourth tracts, and apply the net proceeds, respectively, to the satisfaction of the deeds of trust thereon; one-half of the excess, if any, to be held for the benefit of Charles A. Misenheimer subject to disbursement under further order of the court, and the remaining half of such excess to be paid over to plaintiff as executor to be handled and disbursed by the executor, after payment of debts and costs of administration, in accordance with the will of the testator. It was ordered, however, in the event the liens on the said tracts should be paid or arranged before confirmation, the authority to sell should become inoperative.\nFrom the judgment entered in accordance with the findings of fact, defendant J. J. Misenheimer appealed.\nH. L. Taylor for J. J. Misenheimer, appellant.\nTillett, Tillett & Kennedy and Taliaferro & Clarkson for Charles A. Misenheimer, appellee." }, "file_name": "0519-01", "first_page_order": 585, "last_page_order": 591 }