Hill v. Smith

277 S.E.2d 542 (1981)

Herbert McKinley HILL and wife, Edna Byrd Hill, Plaintiffs and Third-Party Plaintiff-Appellees, v. Esther SMITH, Defendant-Appellant, v. William H. ANDERSON and wife Margarita H. Anderson, Third-Party Defendants.

No. 8018DC719.

Court of Appeals of North Carolina.

May 5, 1981.

*544 O'Connor, Speckhard & Speckhard by Donald K. Speckhard, Greensboro, for defendant-appellant.

Badgett, Calaway, Phillips, Davis, Stephens, Peed & Brown by Chester C. Davis, Winston-Salem, for plaintiff-appellee.

BECTON, Judge.

The central issue presented on appeal is: whether the trial judge, based on the stipulated findings of fact, properly concluded that the defendant, Esther Smith, was willfully and unlawfully in possession of land owned by the plaintiffs, Mr. and Mrs. Herbert M. Hill. The scope of our review is to determine whether the findings of fact fairly and reasonably support the conclusions of law reached by the trial judge.

Ms. Smith's main objection in her four assignments of error focuses on the trial judge's conclusion that the Clerk of Superior Court of Guilford County had subject matter jurisdiction to hear and determine the validity of her marriage to Silas Smith and therefore her right to dissent from his will. Ms. Smith argues (1) that the Clerk's jurisdiction is narrowly limited to establishing a spouse's right to dissent based solely upon a mere mathematical determination of the value of the property passing to the surviving spouse under the Will and outside the Will; (2) that, under G.S. 1-174, issues of fact joined before the Clerk must be transferred to the Superior Court for final determination; (3) that the question of the validity of her marriage to Silas Smith was an issue of fact which should have been, but was not, transferred to the Superior Court; (4) that therefore, the Clerk had no subject matter jurisdiction to decide her right to dissent; (5) that absent proper subject matter jurisdiction, the Clerk could not properly rule on the validity of her marriage to Silas Smith; and (6) that the trial judge, in this summary ejectment proceeding, could not conclude as a matter of law that the Clerk had jurisdiction, and further, could not conclude that she was unlawfully on plaintiffs' property.

*545 Based on the stipulated facts, however, this argument raises questions about the Clerk's probate jurisdiction which we need not decide today. Even if we were to assume arguendo that the Clerk did not have subject matter jurisdiction to strike Esther Smith's dissent, the findings of fact stipulated to by the parties would still support the trial judge's conclusion that she has no right, title or interest in any of the real property now owned by the plaintiffs Mr. and Mrs. Hill. The parties to this summary ejectment proceeding stipulated that "on November 30, 1966, the Clerk of Superior Court of Guilford County delivered to Esther Smith a check in the sum of $262.20, the same representing the $300.00 bequest less pro rata estate taxes and Clerk's commission." This refers to the bequest made to Ms. Smith under the Will of Silas Smith in which he bequeathed "$300.00 to go to Esther Smith" without reference to her as his wife. It is a common principle of law in North Carolina that a surviving spouse must elect between taking under a Will and dissenting from the Will. The spouse cannot do both; the election of one precludes the other. In re Estate of Loftin, 21 N.C. App. 627, 205 S.E.2d 574, aff'd 285 N.C. 717, 208 S.E.2d 670 (1974); see also Gomer v. Askew, 242 N.C. 547, 89 S.E.2d 117 (1955). In In re Loftin, the petitioner wife was estopped to dissent from her deceased husband's Will when she accepted the $5,000 bequest and life estate in the house given to her under the terms of the Will. The court pointed out, "[h]aving accepted benefits [under the Will] petitioner may not repudiate the Will and take her intestate share." 21 N.C.App. at 631, 205 S.E.2d at 576. Given the stipulated fact that Ms. Smith accepted her bequest under the Will of Silas Smith, even if she were his lawful wife, she cannot now claim a right still in existence to dissent from that Will. By waiving her right to dissent, Ms. Smith has no claim to the property in question. The trial judge's conclusion of law that Ms. Smith is unlawfully in possession of plaintiff-appellee's land is supported, therefore, by the findings of fact stipulated to by the parties.

Ms. Smith's alternative claim is that the letter from Roy M. Booth dated 27 January 1967 conveyed a life estate in the house and two and one-half acres of land to her. A careful review of the letter does not support this contention. The letterwritten by Roy M. Booth in his capacity as a stockholder in BOFA, Inc. which purchased the entire twenty-eight acres of land from the estate of Silas Smithspecifically informed Ms. Smith that she had the company's permission to occupy the house and have a garden on the two and one-half acres, but that no deed to the property could be furnished to her. At the very most, the letter created a gratuitous license for Esther Smith to use the property. It is well established that a license does not create a property interest in land, and it is equally settled that a license is revocable at the will of the licensor. Sanders v. Wilkerson, 285 N.C. 215, 204 S.E.2d 17 (1974); 1A, Thompson on Real Property, § 223 (1980); Webster, Real Estate Law in North Carolina, §§ 310, 312 (1971). Additionally, without the consent of the new owners, licenses generally do not survive the transfer of ownership of the property by the licensor. 1A Thompson, supra, at § 216; Webster, supra, at § 312.

In the case at bar, Esther Smith was granted permission to remain on the property impliedly for as long as BOFA, Inc. owned the property. This she did. Once the property was sold, Esther Smith's privilege to live on the property granted by BOFA came to an end. Esther Smith had no enforceable property right in the land in question. The trial judge therefore was correct in all respects, and her order is hereby

Affirmed.

VAUGHN and WELLS, JJ., concur.