The facts alleged in the complaint in this action are sufficient to constitute a cause of action on which the plaintiff is entitled to recover of the defendant W. F. Ingram. These facts are admitted in the answer. For this reason the plaintiff was entitled to judgment on the pleadings, unless the allegations in the answer are sufficient to constitute a defense to the action. For the purposes of her motion, the plaintiff admitted the allegations of the answer. On her appeal to this Court she contends that the facts alleged in the answer are not sufficient to constitute a defense to her cause of action as alleged in her complaint, and admitted in defendant’s answer. This contention is sustained.
The testator died on 17 April, 1920. His last will and testament was probated and recorded, and the defendant, as the executor named therein, qualified for the discharge of his duties on 30 April, 1920. The annuity for the first year after the death of the testator became due and payable to the plaintiff on 30 April, 1921. When the defendant paid this annuity, he had notice that the testator had conveyed by the deed which was recorded on 20 September, 1920, a large part of the lot of land which he had devised by his will to the plaintiff for her life, and which *648be directed to be sold at her death, to reimburse the defendant for all amounts paid by him during her life for her support. With this knowledge, the defendant paid the annuity not only for the first year, but for each succeeding year until and including the year 1929. Having elected to assume the burden imposed upon him by the testator in his will, with full knowledge that by the provisions of the will he must look solely to the lot devised by the testator to the plaintiff for her life, as the only source from which he could hope for reimbursement, he cannot now be relieved of his burden because the testator had conveyed a part of the lot prior to his death by deed of which he had notice before he voluntarily assumed the burden. In Elmore v. Byrd, 180 N. C., 120, 104 S. E., 162, in which Walker, J., discussed the principles on which the equity of election rest, it is said: “When one elected to take a benefit under the will, with burdens attached, he is bound although it turned out that the burden was greater than the benefit.”
On the facts admitted in the pleadings, the three years statute of limitations cannot avail the defendant as a bar to plaintiff’s recovery in this action. The will was probated and recorded, and the defendant qualified as executor of the testator on 30 April, 1920. The annuity for the year 1920 did not become due and payable until 30 April, 1921. This annuity, and the annuity for each succeeding year until and including the year 1929,. has been paid by the defendant. He has not paid the annuity for the years 1930, 1931, and 1932, each of which was due at the commencement of this action. The annuity for each of these years became due and payable on 30 April of the succeeding year. Thus the annuity for the year 1930 was due and payable on 30 April, 1931, when plaintiff’s cause of action to recover the amount due on said annuity accrued. This action was begun on 18 November, 1933, that is, within three years from the dates on which the causes of action for recovery on account of the annuities for the years 1930, 1931, and 1932 accrued.
The annuities for the years 1933 and 1934 were not due at the commencement of this action. For this reason, there is error in the judgment that plaintiff recover in this action the annuities for the years 1933 and 1934. There is also error in the judgment that plaintiff recover interest on the amounts due on the annuities for the years 1930, 1931, and 1932, prior to the dates on which said annuities were due.
In Item 4 of his will, the testator directed the executor to pay to the plaintiff the sum of three hundred dollars each year so long as she should live. He further directed that his executor should be reimbursed for the amounts which he should pay to the plaintiff by the sale of the house and lot devised to the plaintiff, at her death. The annuities are not charged upon the property, real or personal, owned by the testator at his death. There is error in so much of the judgment as orders and decrees that the *649executor shall apply to tbe clerk of tbe court for leave to sell said property for tbe payment of tbe annuities now due or wbicb shall hereafter become due to tbe plaintiff.
Tbe plaintiff is entitled to judgment in this action that she recover of tbe defendant tbe amounts due at tbe commencement of tbe action on account of tbe annuities for tbe years 1930, 1931, and 1932, with interest from tbe dates on wbicb said amounts were due, and tbe costs of tbe action. Tbe judgment as modified in accordance with this opinion is
Affirmed.