# Hoggard v. Jordan.

> Supreme Court of North Carolina · March 27, 1906 · 140 N.C. 610

URL: https://www.frixlaw.com/law-library/cases/9810753

## Case

- **Full name:** Hoggard v. . Jordan
- **Court:** Supreme Court of North Carolina
- **Decided:** March 27, 1906
- **Citations:** 140 N.C. 610; 53 S.E. 220; 1906 N.C. LEXIS 52
- **Precedential status:** Published
- **Opinion:** Concurrence by Walker
- **Judges:** Connor, Walker
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9810753

## Opinion text

Walker, J.,
concurring in result: This case is not like Tripp v. Nobles, 136 N. C., 99 . Here there was a substantial benefit conferred by the will, which forced the plaintiffs intestate to choose between the acceptance of that,benefit and the retention of the property, already her own, which is attempted to be disposed of by the same instrument. There was no such benefit received under the will construed in Tripp v. Nobles. It would seem but just to require that the benefit bestowed should be a substantial one, in order to put the donee to an election, and that it should not consist merely of property which he would have received under the law, if the will had not been made. Further investigation confirms me in the view entertained and stated in my dissenting opinion in that case. The principle was adopted and applied in Tyler v. Wheeler, 160 Mass., 206 , where it was held that an executor is not estopped by qualifying under the will of his wife to claim his legal interest in her estate, and in Register v. Hensley, 10 Mo., 189, the court decided that a widow’s renunciation of the provisions of her husband’s will, made in lieu of dower, was not invalidated by her not surrendering personal property, which she had previously received under the will, where the amount was the same as that which she would receive under, the administration law. The case of Loving v. Craft, 16 Ind., 110 , also sustains the same view, as the court held that a surviving wife is entitled to the statutory provision of $300 “notwithstanding she may have accepted the provisions made for her by the will of her husband.” Correll v. Ham, 2 Iowa, 552 ; Wilbur v. Wilbur, 52 Wis., 298 . The language used in Fitts v. Cook, 59 Mass. (5 Cush.), 601, *617 seems to fit the case: “In looking at the provisions of this will,” the court said, “it will be seen that they are so little a departure from what would have been the legal rights of Joanna Cook without the will, that little can be inferred from the subsequent use of the property in the manner set forth in the agreed statement.” The court then held that there was no binding election or estoppel. The law is thus stated in Bige-low on Estoppel, 676: “This doctrine of election is never applied in the law of wills when, if an election is made contrary to the will, the interest which would pass from the testator by the will cannot be laid hold of in equity to compensate the disappointed donee. Some free disposable property must be given to the electing donee which can become compensation for what the testator sought to take away.”
It was held in In re Gwyn, 77 Cal., 313 , that “a widow is not estopped to make an election to take under the law by causing the will of her husband to be probated and by becoming executrix thereof.” To the same effect is Estate of Frey, 52 Cal., 658 . The court decided in Collier v. Collier, 3 Ohio St., 369 , that “a widow electing to take under a will, containing provisions for her, expressed to be in lieu of dower and all other claims on the estate of the testator, is not barred of her right to the year’s support, provided by law, from the estate of the debtor.” So it was held in Taylor v. Browne, 2 Leigh (Va.), 454 , that by taking administration with the will annexed, the widow will not be held to have elected to claim under the will instead of under a deed of settlement, formerly made by her husband for her use and benefit and which contained a disposition of the property different from, and more beneficial to her than the provisions of the will. Taking under the will, says the court in Hubbard v. Russell, 73 Ala., 578 , will not deprive the widow of her exemption of one thousand dollars allowed her by the law, for she substantially and practically takes what already belongs to her..
Election being a matter of equitable cognizance, the ordi *618 nary principles of equity must apply, one of which, is that the court will never decree anything to be done which is plainly unfair, oppressive or unconscientious, especially when the rights of others will not be materially affected by a refusal to do so. It also regards more the substance than the mere form of things. The authorities, it seems to me, clearly establish that the widow’s year’s provision, or anyother interest created by the law and independent of the disposition of the husband, cannot be considered as a bounty conferred, and therefore no election can arise in such a case. It would appear to be against equity so to hold. The proving of her husband’s will by her as executrix, under such circumstances, should not therefore put her to an election. There is not in such a case a single equitable element to support an estoppel, and it is so held in the other States, and I think in decisions of this court, as I have shown in my former opinion. The cases in our reports, which are relied on in Tripp v. Nobles, to show the contrary, are clearly distinguishable from that case. In Tripp v. Nobles it appeared that the intestate could take nothing under the will which was not already hers by force of the law. The testator therefore had no free, disposable property to give her, and whether he has or not is the test by which to determine whether a case of election is presented.
Upon the doctrine of compensation, I will add to the authorities cited in my dissenting opinion in Tripp v. Nobles, the following: In Bell v. Culpepper, 19 N. C., 20 , this court, by Gaston, J., said: “The rule of election, in the sense in which it is insisted on by the defendant, is confined exclusively to courts exercising equitable jurisdiction, which have it in their power to restrain men from the unconscientious assertion of acknowledged legal rights. They hold that it is against conscience for a man to take a benefit under a will or other instrument, and at the same time disappoint other plain provisions of that will, made in favor of third persons. Of course he may keep, if he pleases, what was before his own; *619 for the mistake of the donor cannot take away his property; but if he will insist on enjoying the interest given him by the instrument, they will by proper decree provide that so enjoying it he shall give effect as far as he can to the other provisions of the instrument.” And in Alston v. Hamlin, 19 N. C., 124 , this court, by the same judge, said: “If the defendant can avail himself of the implied election which was insisted on at the trial, it must be before a tribunal competent to decide upon the equity of such election. The principle of election, as here asserted, is a principle of equity, proceeding on the doctrine of an implied condition, of which a court of equity in a proper case will enforce the performance by compelling the legatee, if he elects to take the bequest, to-make compensation out of his own property to the disappointed legatees.”
It does not appear in the case at bar what is the value of the land, nor what is the value of the “Lewiston lots,” so that the principle of compensation could not be applied, even if there had not been a binding election to take under the will but an election had been so made as to call for the application of that principle, and even if equitable relief can be administered in this statutory proceeding and by the court where it originated. Vance v. Vance, 118 N. C., 864 .
While I differed from the majority of the court in the case of Tripp v. Nobles, as to the questions of estoppel and election involved, yet having fully stated what, in my opinion, is the correct principle of law, as it should have been declared and applied to the facts, henceforth that decision shall be the law with me, for it may be right, though the conclusion reached by the court, I must think, and this is said with the utmost deference, is not supported by the best precedents or by the weight of authority.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9810753. Public record. Not legal advice.