Ginn v. Edmundson, 173 N.C. 85 (1917)

March 7, 1917 · Supreme Court of North Carolina
173 N.C. 85


(Filed 7 March, 1917.)

Wills — Husband and Wife — Joint Wills — Repudiation by Survivor — Title.

A husband and wife holding lands by entireties may mate a valid will, jointly, devising the lands to their children or to others; but upon the death of either of -them the property will go to the survivor, who may repudiate the paper-writing as his or her will, as the case may be, nothing else appearing, and convey the title to a purchaser.

Civil actioN, tried before Cox, J., at January Term, 1917, of WayNe.

This is an action to recover the purchase price of a tract of land which the plaintiff, Mary J. Ginn, has contracted to sell the defendant.

The defendant refused to pay the purchase money and to accej)t the deed, upon the ground that the plaintiff has not a good title to the land.

On 30 September, 1909, John B. Exum and wife conveyed the land *86in controversy by deed to J. Hiram G-inn and bis wife, tbe plaintiff Mary J. Ginn.

In April, 1910, tbe said J. Hiram Ginn died leaving tbe plaintiff Mary J. Ginn surviving bim, but prior to bis death be and bis wife executed jointly a will in wbicb tbe land in controversy was devised to several children of tbe said Hiram Ginn and wife, and in wbicb nothing was devised to tbe said Mary J. Ginn or to tbe said J. Hiram Ginn.

After tbe death of tbe said J. Hiram Ginn tbe said Mary J. Ginn refused to abide by said will, repudiated tbe same, and contracted to sell tbe land devised therein to tbe defendant and has tendered bim a deed wbicb be has refused to accept, because, as be alleges, tbe plaintiff has no title.

There was judgment in favor of tbe plaintiff, and tbe defendant excepted and appealed.

W. T. Dortch for plaintiff.

Dichinson & Land for defendant.

AlleN, J".

Tbe deed to J. Hiram Ginn and bis wife, Mary, conveyed an estate by tbe entireties, with tbe right of survivorship (Motley v. Whitemore, 19 N. C., 537; Bruce v. Nicholson, 109 N. C., 204), and tbe plaintiff Mary J. Ginn, being tbe survivor, is tbe owner of tbe land in controversy and can convey a good title to tbe defendant unless prevented from doing so by tbe signing of tbe joint will with her husband.

A joint or conjoint will is a testamentary instrument executed by two or more persons, in pursuance of a common intention, for tbe purpose of disposing of their several interests in property owned by them in common, or of' their separate property treated as a common fund, to a third person or persons, and a mutual or reciprocal will is one in wbicb two or more persons make mutual or reciprocal provisions in favor of each other.

In many of tbe early cases it was held that there could not be a ■valid joint or mutual will, but “it is now well settled by tbe overwhelming- weight of authority, both in England and tbe United States, that such wills may be valid and may be admitted to probate like any other will unless revoked.” 40 Cyc., 2110 et seq.

In Clayton v. Liverman, 19 N. C., 558, our Court adhered to tbe earlier authorities, but this case was overruled in tbe Davis will case, 120 N. C., 9, wbicb was approved at tbe last term in tbe Cole will case, 171 N. C., 74, and joint and mutual wills are now recognized in this State as valid testimentary dispositions of property.

It is also now tbe general doctrine of tbe text-books and of tbe decided cases that, in tbe absence of contract based upon consideration, *87sucb wills may be revoked at pleasure. In re Davis, 120 N. C., 9; In re Cole, 171 N. C., 74; Gardner on Wills, pp. 88 and 89; Theobald on Wills, p. 12; 40 Cyc., 2115; 30 A. and E., 621; Note 38, L. R. A., 291.

The author says in the citation from Theobald on Wills: “Persons may make joint wills, which are, however, revocable at any time by either of them or by the survivor,” and in the note to the Davis case, which is reported in 38 L. R. A., 291, the editor says: “The cases generally agree that either of the comakers can at any time revoke his part of the will.”

The will before us belongs to the class of joint or conjoint wills, as it is a disposition of the property owned by the husband and wife by the entireties to third persons, and there is no reason why the wife could not, after the death of her husband, revoke the will and dispose of the property as if it had not been signed by her.

As was said in the Davis case, “There is nothing from which it can be implied even that there was any agreement that if one should devise to these devisees, the other would do so, or that if one should after-wards revoke, the other would do so. Either had the right to do so, and without notice to the other.”

We are, therefore, of opinion that the plaintiff had the power to repudiate the paper-writing as her will, and that the contract of sale is binding upon her and the defendant, and that her deed will convey to him a good title to the land in controversy, and he must accept it and pay the purchase price.