#### AUBREY A. PERKINS, Incompetent, WACHOVIA BANK & TRUST COMPANY, Trustee, v. IRENE PERKINS ISLEY.

(Filed 3 January, 1945.)

1. Wills § 46—

A legatee or devisee under a will is not bound to accept a legacy or devise therein provided, but may disclaim or renounce his right under the will, even where the legacy or devise is beneficial to him, provided he has not already accepted it.

2. Same: Deeds § 5—

The right to renounce a devise or legacy is a natural one and needs no statutory authority. A title by deed or devise requires the assent of the grantee or devisee before it can take effect.

3. Wills § 46—

An heir at law is the only person who, by the common law, becomes the owner of land without his own agency or consent. The law casts the title upon the heir, without any regard to his wishes or election.

4. Same: Wills § 42—

A beneficiary is presumed to have accepted a testamentary legacy or devise which is beneficial to him, but the presumption is rebuttable, and' where the legatee or devisee renounces or disclaims the legacy or devise in clear and unequivocal terms, in the absence of fraud, the renunciation or disclaimer is effective as of the date of the death of the testator. In such case the devise or legacy is lapsed or void, and the gift passes under other provisions of the will, if there be any covering such contingency, otherwise it passes under the statutes of intestacy. G. S., 31-42.

5. Wills § 46—

When a devisee accepts a devise, his title relates back to the death of testator; but when there is a renunciation, the devise never takes effect and the title never vests in the devisee.

6. Same—

In most jurisdictions a renunciation must be made within a reasonable time after the probate of the will. What is a reasonable time is usually left to judicial determination in the light of the facts and circumstances involved in each case.

*7947. Same—

The mere fact that a daughter, the sole legatee and devisee under her mother’s will, requested in writing the appointment of an administrator c. *t. a.,*in lieu of the executor named therein, who had been adjudged incompetent, is insufficient to estop her from renouncing her rights under the will.

*8.*Same—

Where a testatrix died in May and her will was probated in December following and in February thereafter a daughter, the sole devisee and legatee named in the will, filed a verified petition, in the office of the clerk of the Superior Court, reciting these facts and renouncing all her rights under the said will, such renunciation is in a clear and unequivocal manner and within a reasonable time, and justifies orders of the clerk and judge approving the same and directing distribution as in case of intestacy, and it relates back to the death of the testatrix.

Devin, J., took no part in the consideration or decision of this case.

Appeal by defendant from *Phillips, J.,*at February Term, 1944, of Guilfoed.

This is an action for partition, instituted as a special proceeding before the clerk of the Superior Court of Guilford County. The defendant filed an answer alleging sole seizin of all the land sought to be partitioned. Whereupon the proceeding was transferred to the Civil Issue Docket of the Superior Court for trial upon the issues raised by the pleadings.

The facts pertinent to this appeal are as follows:

1.' Lalah R. Perkins died seized and possessed of the land described in the petition and left surviving her two children, the plaintiff Aubrey A. Perkins and the defendant Irene Perkins Isley.

2. Lalah R. Perkins, the mother of Irene Perkins Isley and Aubrey A. Perkins, the parties hereto, died on 4 May, 1939, leaving a last will and testament, which was duly probated and filed in the office of the clerk of the Superior Court of Guilford County, North Carolina, on or about 19 December, 1939. That said last will and testament provides:

“Second — All my property of whatever nature, real, personal, or mixed, wheresoever situated, to which I may be legally or equitably entitled, or over which I may have any power of appointment, I give and bequeath to my daughter, Irene P. Isley, in fee simple, forever.

“Third — I appoint Aubrey A. Perkins to be the executor of this will, and request that no sureties upon his official bonds be required.”

3. Aubrey A. Perkins was adjudged incompetent for want of understanding to manage his own affairs, on-5 December, 1939, and on 19 December, 1939, the Wachovia Bank & Trust Co. was appointed Trustee of his property and qualified as such Trustee and immediately entered *795upon, its duties and has continuously since tbat date and is now acting as such Trustee.

4. On 18 December, 1939, Irene Perkins Isley requested tbe clerk of tbe Superior Court of Guilford County, in writing, to appoint tbe Security National Bank, of Greensboro, N. 0., administrator *c. i. a.*of tbe will of ber mother, Mrs. Lalab Boss Perkins. Tbe Security National Bank was duly appointed and immediately entered upon its duties as sucb administrator.

5. Irene Perkins Isley, on 12 February, 1940, filed in tbe office of tbe clerk of tbe Superior Court of Guilford County, a petition entitled “In tbe Matter of tbe Estate of Mrs. Lalab Boss Perkins, Security National Bank, Administrator *c. i.-*aTbis petition was signed by ber and ber attorney and duly verified by Irene Perkins Isley. In tbis petition sbe alleges tbat ber mother, Lalab Boss Perkins, died on 4 May, 1939, leaving a last will and testament which was duly filed and probated on or about 19 December, 1939; tbat Irene Perkins Isley, tbe petitioner, was named as sole beneficiary in said will, tbat tbe Security National Bank qualified as administrator *c. t. a.*on 19 December, 1939, tbat tbe estate consists of real and personal property of considerable value; and in Item III of said petition sbe alleges: “Tbat tbe said Irene Perkins Isley does not wish to take under said will, but desires to renounce all ber rights under tbe same; tbat sbe is advised tbat sbe is entitled to renounce as a matter of law, and sbe hereby does renounce all ber rights under said will.” And in Item IV sbe alleges: “Tbat tbe said Lalab Boss Perkins left surviving her- two children, Irene Perkins Isley and Aubrey A'. Perkins, who under tbe intestate laws of tbe State of North Carolina are ber only heirs at law and tbat tbe Wachovia Bank & Trust Company, of High Point, N. C., is tbe duly appointed qualified and acting Trustee of the property of Aubrey A. Perkins.” And sbe prays as follows:

“Wherefore, petitioner prays the' Court for an order:

“1. Authorizing petitioner to renounce all ber rights under said will;

“2. Declaring said will to be of no effect and directing tbat tbe entire estate of tbe said Lalab Boss Perkins descend to and be distributed between Irene Perkins Isley and Wachovia'Bank & Trust Co., Trustee for Aubrey A. Perkins, in accordance with tbe intestate laws of tbe State of North Carolina, and,

“3. Continuing tbe Security National Bank as Administrator and authorizing and directing said Administrator to distribute all property coming into its bands, after tbe payment of all lawful debts and charges, between Irene Perkins Isley and Wachovia Bank & Trust Co., Trustee for Aubrey A. Perkins, in accordance with tbe intestate laws of tbe State of North Carolina.”

*7966. Tbe Security National Bank, as Administrator *c. t. a.,*of tbe estate of Mrs. Lalab Ross Perkins, on 12 February, 1940, filed its answer in said cause. On tbe same day tbe clerk of tbe Superior Court of Guilford County adjudged, by its Order that tbe petitioner, Irene Perkins Isley, “bas tbe right, as a matter of law, to renounce under said will,” and further ordered and adjudged that “Irene Perkins Isley be and she is hereby permitted to renounce all her rights under tbe will of Mrs. Lalab Ross Perkins in which tbe said Irene Perkins Isley was named as sole beneficiary and that by reason of tbe renunciation contained in tbe petition and this order, said renunciation is now complete; that said will is null and void and of no effect to pass title to any property, real, personal or mixed, of tbe estate of tbe said Mrs. Lalab Ross Perkins and that all of her said property shall descend to and be distributed between Irene Perkins Isley and Wachovia Bank & Trust Company, Trustee for Aubrey A. Perkins, in equal shares, in accordance with tbe intestate laws of the State of North Carolina,” and further ordered and adjudged, “that tbe Security National Bank be continued as administrator and that said administrator, after paying all tbe debts of tbe estate and all proper charges against it, distribute all property remaining in its bands as such administrator between tbe said Irene Perkins Isley and Wachovia Bank & Trust Company, Trustee for Aubrey A. Perkins, in equal shares, in accordance with tbe intestate laws of tbe State of North Carolina.”

7. There was an appeal from tbe order of tbe clerk of tbe Superior Court. Tbe matter was beard in tbe Superior Court, on 12 February, 1940, and it was again adjudged that Irene Perkins Isley, tbe petitioner, “bas tbe right, as a matter of law, to renounce all her rights under said will,” and tbe order signed by tbe clerk of tbe Superior Court was in all respects approved and confirmed by tbe judge of tbe Superior Court.

8. Tbe administrator *c. t. a.,*of Lalab Ross Perkins, deceased, tbe Wachovia Bank & Trust Company, Trustee for Aubrey A. Perkins, and Irene Perkins Isley, have at all times dealt with tbe property in accordance with tbe renunciation approved by tbe clerk and tbe judge of tbe Superior Court.

9. Irene Perkins Isley was a married woman at tbe time of tbe foregoing transactions; however, she and her husband separated on 8 November, 1939, and have lived separate and apart since said date, and they were divorced later by a judgment of tbe Superior Court of Guilford County.

10. W. F. Isley, tbe husband of tbe defendant, instituted tbe action for divorce 15 November, 1941, tbe defendant filed an answer alleging that W. F. Isley without provocation or cause on tbe part of tbe defendant, unlawfully and willfully abandoned her, and by way of cross action *797prayed tbe court to grant ber a divorce from the plaintiff. On 2 February, 1942, Irene Perkins Isley was granted an absolute divorce from W. F. Isley. Four issues were submitted to the jury and answered in the affirmative. The first issue as to residence, the second as to the marriage, the third as to whether or not the plaintiff and defendant had lived separate and apart continuously for two years or more immediately preceding the institution of the action, and the fourth was in the following language: “Was the abandonment and separation without fault on the part of the defendant?”

At the trial of this cause, the court submitted two issues to the jury and directed a verdict for the plaintiff, as follows:

“1. Are the plaintiff and defendant tenants in common and seized in fee simple of the lands described in the petition ? Answer: Yes.

“2. What is the interest of the petitioner in said land ? Answer: One-half undivided interest.”

From judgment entered on the verdict, defendant appeals to the Supreme Court, assigning errors.

*Sapp & Sapp for plaintiff.*

*Clifford Frazier for defendant.*

DeNNY, J.

This appeal may be determined by answering the following questions: 1. Did Irene Perkins Isley renounce and refuse to take under the last will and testament of her mother, Mrs. Lalah Boss Perkins? 2. If so, did the renunciation have the effect of a conveyance which required the written assent of her husband, as provided in Art. X, sec. 6, of the Constitution of North Carolina, unless she was a freetrader under the provisions of G. S., 52-6? We think the first question must be answered in the affirmative and the second in the negative.

The weight of authority is to the effect that a legatee or devisee under a will is not bound to accept a legacy or devise therein provided, but may disclaim or renounce his right under the will, even where the legacy or devise is beneficial to him, provided he has not. already accepted it. 69 C. J., Wills, sec. 2168, p. 674; 28 E. C. L., Wills, sec. 351, p. 352; Thompson on Wills, sec. 479, p. 567; Page on Wills, Vol. 4, secs. 1402 through 1404, p. *140,-et seq.; Sanders v. Jones,*347 Mo., 255, 147 S. W. (2d), 424; *People v. Flanagan,*331 Ill., 203, 162 N. E., 848, 60 A. L. E., 305; *In re Vasgaard’s Estate,*62 S. D., 421, 253 N. W., 453; *Greely v. Houston,*148 Miss., 799, 114 So., 740; *Schnoover v. Osborne,*193 Iowa, 474, 187 N. W., 20, 27 A. L. B., 465; *Chilcoat v. Beid,*154 Md., 378, 140 A., 100; *Albany Hospital v. Hanson,*214 N. Y., 435, 108 N. E., 812; *Peter v. Peter,*343 Ill., 493, 175 N. E-, 846, 75 A. L. B., 890; *In re Hodge’s Estate,*20 Tenn. App., 411, 99 S. W. (2d), 561; *Coomes v.**798*Finegan*(Iowa) (1943), 7 N. W. (2d), 729; *Strom v. Wood,*100 Kan., 556, 164 Pac., 1100; *Bouse v. Hull,*168 Md., 1, 176 A., 645; *Seifner v-. Weller*(Mo.) (1943), 171 S. *W.*(2d), 617; *Daley v. Daley,*308 Mass., 293, 32 N. E. (2d), 286.

The right to renounce a devise or legacy is a natural one and needs no statutory authorization. “An heir-at-law is the only person who, by the common law, becomes the owner of land without his own agency or assent. A title by deed or devise requires the assent of the grantee or devisee before it can take effect. But in the case of descent, the law casts the title upon the heir, without any regard to his wishes or election. He cannot disclaim it if he would.” 3 Washburn on Real Property (5th Ed.), sec. 4, p. 6; *In re Kali’s Estate*(Cal.) (1940), 102 Pac. (2d), 399; *S. c.,*108 Pac. (2nd), 401; *In re Mahlstedt’s Will,*250 N. Y., 628.

A beneficiary is presumed to have accepted a testamentary legacy or devise which is beneficial to him, but the presumption is rebuttable, and where the legatee or devisee renounces or .disclaims the legacy or devise in clear and unequivocal terms, in the absence of fraud, the renunciation or disclaimer is effective as of the date of the death of the testator. In such cases the devise or legacy is lapsed or void, and the gift passes under other provisions of the will, if there be any covering such contingency, otherwise it passes to the heirs at law under the statutes of intestacy. G. S., 31-42; *lieid v. Neal,*182 N. C., 192, 108 S. E., 769; *Bradford v. Lealce,*124 Tenn., 312, 137 S. W., 96; *Sanders v. Jones, sufra; Qreely v. Houston, supra; Schnoover v. Osborne, supra; Peter v. Peter, supra.*

When a devisee accepts a devise, his title relates back to the death of the testator, but when there is a renunciation the devise never takes effect and title never vests in the devisee. *In re Johnston’s Will,*298 N. Y., 957; *Schnoover v. Osborne, supra.*In most jurisdictions, however, it is held that a renunciation must be made within a reasonable time after the ..probation of the will. What is a reasonable time is usually left for judicial determination in the light of the facts and circumstances involved in each case.

The appellant contends that she did not have the right to renounce the gift under her mother’s will, since the Security National Bank was appointed administrator *c. t. a.,*at her suggestion. • We do not so hold. We are advertent to the decisions of this Court, which hold that ordinarily where a beneficiary under a will, who is under the necessity of making an election, is presumed to have made the election by offering the will as executor and procuring its probate. *Benton v. Alexander, post,*800, and the cases there cited. Even though a widow is estopped in this jurisdiction from claiming dower, where she, as executrix, procures the probation of her deceased husband’s will, nothing else appear*799ing, sbe could still renounce tbe gift under tbe will and take nothing from ber husband’s estate if sbe so desired. *Brown v. Routzahn,*63 Fed. (2d), 914, 290 U. S., 641, 78 Law Ed., 557. In tbe instant case, tbe appellant was under no obligation to make an election, and tbe mere fact that sbe requested tbe appointment of an administrator *c. t. a.,*in lieu of tbe executor named therein, who bad been adjudged incompetent, is insufficient to estop ber from renouncing ber rights under tbe will.

Tbe appellant renounced ber rights under tbe will of ber mother, Mrs. Lalah Boss Perkins, in a clear and unequivocal manner and within a reasonable time. Sbe filed a verified petition in tbe office of tbe clerk of tbe Superior Court of 'Guilford County, in which sbe alleged that sbe was tbe sole beneficiary under tbe last will and testament of ber mother, Mrs. Lalah Boss Perkins, that sbe did not wish to take under tbe will, and further stated therein that “Sbe hereby does renounce all ber rights under said will.” Tbe renunciation set forth in tbe petition was sufficient to justify tbe orders of tbe clerk and tbe judge of tbe Superior Court approving ber -renunciation and directing the Security National Bank, administrator *c. t.*aafter paying tbe debts of tbe estate and all proper charges against it, to distribute all tbe property remaining in its bands as such administrator between Irene Perkins Isley and Wachovia Bank *&*Trust Company, Trustee for Aubrey A. Perkins, in equal shares, in accordance with tbe intestate laws of North Carolina.

Tbe appellant’s renunciation became effective upon tbe filing of ber verified petition in tbe office of tbe clerk of tbe Superior Court renouncing ber rights under said will and said renunciation related back to tbe death of ber mother. Tbe will of Mrs. Lalah Boss Perkins contained no residuary clause,- or other provisions disposing of ber property in tbe event of a renunciation by tbe beneficiary therein, therefore tbe plaintiff and tbe defendant herein are tenants in common in all tbe real property of which Mrs. Lalah Boss Perkins died seized.

Tbe appellant may have made a mistake when sbe renounced ber rights under ber mother’s will, but sbe has not shown upon this record any reason, legal or otherwise, why sbe should now be permitted to retract or revoke ber renunciation.

Whether or not tbe right to renounce a testamentary gift is superior to tbe right of a judgment creditor, is not presented or decided.

In tbe trial below, we find

No error.

DeviN, J., took no part in tbe consideration or decision of this case.