Waggoner v. Waggoner , 246 N.C. 210 ( 1957 )

97 S.E.2d 887 (1957) 246 N.C. 210

Annice Poole WAGGONER
v.
J. M. WAGGONER and wife, Julia May Waggoner; Gilmer Y. Waggoner; Mitchell Waggoner and wife, Mrs. Mitchell Waggoner; J. E. Waggoner and wife, Cora Lee Waggoner; Myrtle Waggoner Kiser; Mabel Waggoner Galvin and husband, Robert Galvin.

No. 528.

Supreme Court of North Carolina.

May 8, 1957.

Ira R. Swicegood and Max Busby, Salisbury, for petitioner appellee.

William J. Waggoner, Charlotte, for defendant appellants.

RODMAN, Justice.

Did the answer raise issues of fact or merely issues of law? If material facts alleged by the petitioner are denied by the defendants, the truth must be ascertained by a jury G.S. § 1-172; Sparks v. Sparks, 232 N.C. 492, 61 S.E.2d 356; Wells v. Clayton, 236 N.C. 102, 72 S.E.2d 16.

Petitioner alleges that she is entitled to dower, and, based on her life expectancy, the cash value of her dower is $1169.35. Defendants expressly deny this asserted value. Upon this denial the burden of proof rests upon petitioner. Some of the factors tending to support her claim are admitted. It is admitted that the land was encumbered and sold for $7,400. If entitled to dower, she was entitled to use one-third of that property without regard to the encumbrance, that is, the use for her life of property valued at $2,466.67. Virginia Trust Co. v. White, 215 N.C. 565, 2 S.E.2d 568; Virginia-Carolina Chemical Co. v. Walston, 187 N.C. 817, 123 S.E. 196. The right to use this property was the equivalent of an annuity of $148 for life, that is, interest at six per cent on $2,466.67. G.S. § 8-47.

She was, at the time of her husband's death, 68, and when she applied for dower, 70 years of age. Thus far the facts are not in controversy, but she does not ask that the annuity be paid to her as an annuity. She seeks the cash value of that annuity. She must establish her life expectancy. It may be assumed that she turned to the mortuary table, G.S. § 8-46, as amended in 1955, to ascertain her probable life expectancy, and to the expectancy shown in that table for age 68, turned to the table of cash values of annuities, G.S. § 8-47, and found the sum which she claims. The defect in that process is that G.S. § 8-46 does not, like G.S. § 8-47, give a mathematical result which the court can apply. Petitioner's life expectancy is expressly put in issue by the answer. The table given in the statute is merely evidentiary.

Life expectancy is a question of fact and when disputed must be determined by a jury. Starnes v. Tyson, 226 N.C. 395, 38 S.E.2d 211; Wachovia Bank & Trust Co. v. Atlantic Greyhound Lines, 210 N.C. 293, 186 S.E. 320; Sledge v. Weldon Lumber Co., 140 N.C. 459, 53 S.E. 295. Because the mortuary table is only evidentiary, it has been decided that the cash value of dower inchoate depends on the ages of husband and wife, and on their health, habits, and all other circumstances tending to show the probabilities as to the length of life. Gore v. Townsend, 105 N.C. 228, 11 S.E. 160, 8 L.R.A. 443; American Blower Company v. MacKenzie, 197 N.C. 152, 147 S.E. 829, 64 A.L.R. 1047. We perceive of no reason for differing rules for determining life expectancy as between married women entitled to dower inchoate and widows entitled to dower consummate. The necessity for a jury determination of life expectancy to fix the cash value of a widow's dower has been recognized by the Bar, Smith v. Smith, 223 N.C. 433, 27 S.E.2d 137.

Defendants are entitled to have a jury determine petitioner's life expectancy with the burden on petitioner.

Defendants deny that petitioner's husband was seized of the land on which the claim of dower is asserted. Had their answer stopped there, the burden would have rested on petitioner to establish her husband's ownership. But defendants, by their further answer, admit they conveyed the land to their father. They allege they were induced to convey by petitioner's assurance that she would not assert any claim of dower. They say in substance that, relying on the assurances given them by petitioner, they provided the means for petitioner and her husband to have a home during their joint lives which could have been forfeited for nonpayment of taxes, G.S. § 105-410, and to permit petitioner to misuse their generosity, in violation of the assurances which she gave, would be a species of fraud which the law should not tolerate. Defendants do not predicate their defense on acts occurring subsequent to their conveyance. They do not claim a parol release of an accrued right. Houston v. Smith, 88 N.C. 312, and Luther v. Luther, 234 N.C. 429, 67 S.E.2d 345, which petitioner cites in support of the judgment, have no application here. Defendants' position is that petitioner ought not to be permitted to acquire a right by false and fraudulent representation.

Undoubtedly a married woman may, by conduct and false representation, estop herself to assert a claim to dower. Hodge v. Powell, 96 N.C. 64, 2 S.E. 182; 17 Am. Jur. 734 ; 28 C.J.S. Dower § 51, p. 117.

What is necessary to allege and establish in order to estop one from asserting an apparent right was clearly stated by Walker, J., in Boddie v. Bond, 154 N.C. 359, 70 S.E. 824. The test there enunciated has been repeatedly approved. American Exchange Nat. Bank v. Winder, 198 N.C. 18, 150 S.E. 489; Thomas v. Conyers, 198 N.C. 229, 151 S.E. 270; Scott v. Bryan, 210 N.C. 478, 187 N.C. 756; McNeely v. Walters, 211 N.C. 112, 189 N.C. 114; Martin v. Bundy, 212 N.C. 437, 193 S.E. 831; North Carolina Self-Help Corp. v. Brinkley, 215 N.C. 615, 2 S.E.2d 889; Long v. Trantham, 226 N.C. 510, 39 S.E.2d 384; Hawkins v. M. & J. Finance Corp., 238 N.C. 174, 77 S.E.2d 669.

The factual allegations of the amended further answer are sufficient to invoke the doctrine of estoppel. Defendants are entitled to have a jury hear the evidence and determine the truth of the allegations, with the burden on defendants to establish the facts on which they base their plea of estoppel.

Error.