The trial court, correctly construing the will of W. B. Lamb, held that the plaintiff, his widow, was not thereby put to her election with respect to the lands in controversy, and that her right of survivorship therein was not defeated. In this we concur.
Any attempt to list, by exhaustive rule, the conditions which give rise to the duty or legal necessity of election must be left to the text-writer or encyclopedist. Confining ourselves to the facts of this case and the situation they present, which is not wholly novel in type, we repeat some principles which we believe to be applicable and controlling.
The doctrine of election, as applied to wills, is based on the principle that a person cannot take benefits under the will and at the same time reject its adverse or onerous provisions; cannot, at the same time, hold under the will and against it. Benton v. Alexander, 224 N. C., 800, 32 S. E. (2d), 584; McGehee v. McGehee, 189 N. C., 558, 127 S. E., 684; Weeks v. Weeks, 77 N. C., 421. The intent to put the beneficiary to an election must clearly appear from the will. Rich v. Morisey, 149 N. C., 37, 62 S. E., 762; Bank v. Misenheimer, 211 N. C., 519, 191 S. E., 14; Page on Wills, Vol. 4, p. 1347. The propriety of this.rule especially appears where, in derogation of a property right, the will purports to dispose of property belonging to the beneficiary and, inferentially, to bequeath or devise other property in lieu of it.
Our train of reasoning is not complete without adding that if, upon a fair and reasonable construction of the will, the testator, in a purported disposal of the beneficiary’s property, has mistaken it to be his own, the law will not imply the necessity of election. Benton v. Alexander, supra. That result follows as a corollary to the principles already laid down.
We should also say that as a matter of course there is no election implied or is indeed possible when the person whose right is adversely dealt with in the will receives from the testator no alternative benefit thereunder in lieu of that taken away. Ford v. Whedbee, 21 N. C., 16; McGehee v. McGehee, supra.
In the case at bar the preamble to the codicil states that the testator had, since the making of his will, sold the land referred to in item three thereof (not the land in controversy here) receiving $9,000.00 therefor, one-half of which belonged to the wife, the present plaintiff, by virtue of her one-half interest therein, and that he now desires to dispose of such of his half of the proceeds — $4,500.00—as might remain in his hands at his death. This is the legacy which appellants contend the plaintiff accepted, formally and legally, in lieu of her own land when *666she qualified as executrix to the will. But'the burden rested upon the defendant to adduce some evidence of a condition confronting the plaintiff which put her to an election at the time she presented the will for probate and qualified as executrix; and, in view of the conditional nature of the bequest, the court cannot assume that any part of it remained undisposed of or unspent at the time of testator’s death. The defendants offered no evidence. Ordinarily, time is no fixative when applied to cash assets.
But we are of opinion that defendants’ cause must fail in respects more fundamental than mere procedure. The single sentence composing the second item in the codicil, under which the defendants claim, strikingly emphasizes the fact that the testator and his wife hold the land as an estate by the entirety, and purports to convey only his interest in it — “I hereby give and devise my interest” — and even so expressly negatives any effectual devise with the proviso, “That this will shall not affect the deed which has already been made to Mary H. Lamb and me”; this being the deed under which they hold by entirety.
It seems reasonably clear that the testator supposed himself to have some disposable interest in the land at the time, or anticipated that the estate in entirety might, in the course of time, be resolved into a co-tenancy. But we need not speculate about this. It seems clear that the testator has put enough into this paragraph to negative any intent to interfere with the plaintiff’s right of survivorship, and to toll the necessity of election, if it had otherwise existed.
We should say that Hoggard v. Jordan, 140 N. C., 610, 53 S. E., 220, cited by appellant, is not sufficiently in point to support appellant’s appeal. What the Court might have done with that case except for the long continued acquiescence of the interested parties is not for us to say. But the factual differences between that case and the case at bar are sufficient to distinguish them in legal principle. One of these differences is that in Hoggard v. Jordan, supra, the testator, in terms, disposed of the whole land, and in the instant case the testator just as plainly limited the disposal to his own interest, clearly indicating that he was not attempting to dispose of the property of another. Penn v. Guggenheimer, 76 Va., 833, 847; 2d Story Eq. Jur., sec. 1037, Pomeroy, 849. Also, inasmuch as it does not affirmatively appear that the devisee got, or could have gotten, anything else from the will, the result would be to ration the wife’s own estate between her and the defendants without offering any alternative as the subject of election. McGehee v. McGehee, supra; Ford v. Whedbee, supra; Bennett v. Harper, 36 W. Va., 546, 15 S. E., 143; Page on Wills, sec. 1188.
The judgment of the trial court is
Affirmed.