Ginn v. Edmundson

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, *87 sucb 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.

Affirmed.