#### D. F. WRIGHT et al. v. W. J. WRIGHT et al.

(Filed 28 May, 1930.)

1. Wills F d — Where property of a devisee is devised by the will the devisee is put to his election between Ms property and the devise.

The doctrine of election under a will applies where a testator devises his property to a beneficiary and assumes to devise to another property belonging to the first devisee, in which case the devisee, if he accepts the devise with knowledge of all the facts, is thereby precluded from asserting title to that part of his own property which was devised to another.

3. Same — In this case held: will did not attempt to dispose of property of devisee, and devisee was not put to Ms election thereunder.

Where after the execution of his will the testator gives his son certain specific farming implements which the son takes possession of during the life of the testator, and the will devises certain lands to the son and bequeaths the household and kitchen furniture and. the “remainder” of the personalty to his other children, and at his death the testator owned personal property other than the household and kitchen furniture: *Held,,*the will does not attempt to dispose of the property given the son, the “remainder” including only the personalty other than the personalty given the son and specifically bequeathed to the other children, and the gift to the. son operates as an ademption by so much of the legacy bequeathed to the other children, and the son is not put to his election under the will between the personalty given him and the land devised to him by the will.

Pk.oceeding for the partition of land heard by *Johnson, Special Judge,*at December Term, 1929, of Cleveland. Petitioners appealed. No error.

R. H. Wright died in March, 1925, leaving a will. In the third item he devised (subject to the life estate of his wife, Amanda Wright) two tracts of land to his son, William J. Wright. The tracts contain respectively 60 acres and 9 acres. In the fifth item the testator, after bequeathing his household and kitchen furniture to his daughters, gave the remáinder of his personal property to all of his children “except *755'William J. Wright, who is to receive nothing other than the two tracts of land hereinbefore mentioned.”

William J. Wright claims to be the owner by gift from his father of the following personal property: a McCormick binder, a wheat drill, a cane mill and boiler, a cider mill, a log saw with motor, a stalk cutter, a cultivator, a plow, a scythe and cradle, and a wagon body. He alleges that the testator was unable to pay the taxes, and in order to be relieved of the burden gave him this property, and that he has since owned it and listed it for taxation.

In response to the issues the jury found that the petitioners and the defendants are not tenants in common of the land and that W. J. Wright is the owner thereof in fee.

The assignments of error raise the question whether W. J. Wright was forced to an election under the will, the petitioners contending that if he took the personal property he elected not to take the land devised to him, and that the real estate was therefore subject to partition.

Judgment for respondent and appeal by petitioners.

*D. Z. Nevrton and J. 0. Newton for appellants.*

*B. T. Falls for appellee.*

Adams, J.

The appeal presents the questions whether W. J. Wright was compelled to exercise an election between accepting the land devised to him and taking the personal property purporting to be bequeathed to others, and whether he is estopped to claim the land by having refused to give up the personal property. It is admitted that R. H. Wright, the testator, after the execution of his will gave to W. J. Wright all the articles in controversy and that the donee was the owner and in possession of this property at the death of the testator and at the death of the life tenant, Amanda Wright. The will was executed 23 January, 1920; the property was delivered to the donee in 1922; the testator died in March, 1925. The effect of the gift was to withdraw the property from the operation of the devise and to vest it in the son. If property is devised and subsequently alienated it does not go to the devisee, because the testator can devise or bequeath only the property he owns at the time of his death. 1 Page on Wills, sec. 456; Schouler on Wills, sec. 427; C. S., 4136, 4165. The failure of the bequest under these circumstances is more like the ademption of a legacy than the technical revocation of a devise. Page on Wills, *supra; McRainy’s Executors v. Clark,*4 N. C., 698; *S. c.,*6 N. C., 317.

In the sense used in equity jurisprudence, election has been defined as the obligation imposed on a party to choose between two alternative rights or claims in cases when there is a clear intention of the person *756from whom be derives one that be should not enjoy botb. Eaton on Equity, 161. Tbe appellants invoke tbe aid of tbis doctrine. They say tbe respondent cannot bold botb tbe land and tbe personal property, and must make an election between tbe two. Tbe particular phase of tbe doctrine to which they advert is tbis: Where a person devises bis property to a beneficiary and assumes to devise to another property belonging to tbe first devisee and tbe devisee of tbe testator’s property accepts tbe devise with knowledge of all tbe facts be is thereby precluded from asserting’title to that part of bis own property which was devised to another. *Sigmon v. Hawn, 87*N. C., 450; *Syme v. Badger,*92 N. C., 706; *Allen v. Allen,*121 N. C., 328; *Tripp v. Nobles,*136 N. C., 99.

We are of opinion that tbe fifth item of tbe will, taken in connection with tbe evidence, does not necessarily purport to dispose of tbe articles given to tbe respondent; and if not tbe appellants’ position cannot be maintained. There is evidence that these articles and tbe household and kitchen furniture were not all the personal property owned by tbe testator at tbe time of bis death. Tbe bequest to bis other children would therefore include tbe remaining property. In *Gray v. Williams,*130 N. C., 53, it is said that before a donee can be put to an election his own property which is professed to be conveyed must be described in tbe instrument itself with such certainty that tbe donee may know bis own property by tbe description given. It was shown in *Field v. Eaton,*16 N. C., 283, that tbe defendant, William Eaton, claimed title to a slave as a gift from bis father. Some time after tbe date of tbe alleged gift bis father made a will bequeathing tbe slave to bis son. In a subsequent clause be bequeathed tbe same slave to bis daughter Harriet. To bis son be devised other property, consisting of lands and slaves. In tbe will tbe slave in question was identified by name. It was held that as William claimed under tbe will and tbe will in express terms purported to convey title to tbe slave be could not accept and reject tbe same instrument. The turning point of tbe decision in *Allen v. Allen, supra,*was tbe fact that R. J. Allen, tbe vendee in tbe deed, qualified as executor of bis father’s estate — -the court bolding that bis qualification as executor was an election to take under tbe will. Tbe same conclusion was announced in *Treadaway v. Payne,*127 N. C., 436, in which tbe defendant Payne, who claimed under a deed from the testator, was held to an election because be bad probated tbe will, made an inventory of tbe estate, stated bis receipts and disbursements, and executed tbe duties of executor. These decisions, cited by tbe appellant, are therefore not decisive in tbe present case. We find

No error.