Glover v. Spinks , 12 N.C. App. 380 ( 1971 )

CAMPBELL, Judge.

The Respondent brings forward five assignments of error in his brief which we will discuss in order.

1. The denial of trial by jury. The demand for jury trial was not made in compliance with Rule 38 of the Rules of Civil Procedure. There was no controversy as to any of the facts and therefore no issue of fact to be determined by a jury. The denial of a jury trial was not error.

2. The Respondent asserts that Maggie Spinks was required to make an election under the will of her husband, A. S. Spinks; and since she made no election, she was bound by his will. Respondent in his brief states:

“It is undisputed that the deed from Elijah Allred and wife, Nancy Allred, to A. S. Spinks and wife, dated September 26, 1896, created an estate by the entirety.”

The principle of election is not applicable. Maggie Spinks was not a beneficiary under the will of A. S. Spinks. Election is required where a beneficiary under a will has two conflicting claims to a decedent’s estate. Benton v. Alexander, 224 N.C. 800, 32 S.E. 2d 584 (1945). Not only must the person required to make an election' to be a beneficiary under the will, but the intent of the testator to require such an election must clearly appear from the will. Burch v. Sutton, 266 N.C. 333, 145 S.E. 2d 849 (1966). In Lamb v. Lamb, 226 N.C. 662, 40 S.E. 2d 29 (1946), it is stated:

“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. ...”

Maggie Spinks was not deprived of any interest she had in the 66-acre tract of land by reason of her husband, A. S. Spinks, attempting to devise it. Randolph v. Edwards, 191 N.C. 334, 132 S.E. 17 (1926). The trial judge was correct in his holding.

3. Respondent asserts that the doctrine of estoppel should apply and that Maggie Spinks, having signed at the bottom of A. S. Spinks’ holographic will, would be estopped to assert that the will of A. S. Spinks did not devise the 66-acre tract of land and that accordingly Petitioners, as some of the heirs of Maggie Spinks, would likewise be estopped. The signature of Maggie Spinks at the bottom of her husband’s holographic will, constituted a complete nullity. A paper having no validity cannot be made the basis of an estoppel. Cruthis v. Steele, 259 N.C. 701, 131 S.E. 2d 344 (1963).

4. The Respondent asserts that the plea of sole seizin is valid. The Respondent bases this assertion upon the doctrine of election or because of an estoppel. Both of these points have already been covered, and it would be vain to do so again.

5. The final point raised by the Respondent is that Judge Blount, in denying the motion of Petitioners for summary judgment, had decided the case and that it was error for Judge Collier to overrule Judge Blount. The order of Judge Blount denying the motion- for summary judgment was based upon the pleadings and was not determinative of the cáse on its merits. Judge Collier, on the other hand, considered the case on its merits and made findings of fact which were supported by the pleadings and stipulations of the parties and the uncontroverted evidence. The findings of fact of Judge Collier supported the conclusions of law, and the judgment entered by Judge Collier is

Affirmed.

Chief Judge Mallard and Judge Hedrick concur.