Simonton v. . Houston , 78 N.C. 408 ( 1878 )

"Every widow may dissent from her husband's will before the court of probate of the county in which the will is proved, at any time within six months after probate." Bat. Rev., ch. 117, sec. 6. Where the widow does not dissent, there is no prescribed time within which she must apply for dower, and as in this case she enters no dissent to the will and makes no application adverse to her rights under it, there is no statute and no principle of the common law which bars her right of dower, or the equivalent of it, in the lands of the husband. The (410) case of Mendenhall v. Mendenhall, 53 N.C. 287, is therefore not in point.

The claim of the widow in this proceeding is based upon Rev. Code, ch. 118, sec. 8, which is in these words: "The dower of the widow, and also such lands as may be devised to her by his will, if such lands do not exceed the quantity she would be entitled to by right of dower, shall not be subject to the payment of debts due from the estate of her husband during the term of her life." It cannot admit of a doubt that this statute secures and was intended to secure a provision out of the husband's lands to the widow in two cases: (1) where dower has been actually assigned, as in cases of intestacy and dissent from the husband's will, and (2) where the husband devises lands to the wife, which are presumed to be in lieu of dower. In the latter case of a devise the statute expressly secures to the widow for her life such lands "if they do not exceed the quantity she would be entitled to by right of dower."

Dower is a favorite of the law, and cannot be lost or forfeited except for the causes prescribed by statute or the common law. What is the cause of forfeiture alleged here? It is that the plaintiff offered the will for probate, qualified as executrix, and assumed and exercised the duties of the office for sixteen months before making this application for dower. But what of that? It neither involves a dissent from the will nor a claim adverse to it. By the will she is entitled to all the land, but by this proceeding she proposes to remit her claim to all except one-third of what was devised to her absolutely, and she proposes to take that one-third for life only. The creditors have no cause of complaint, for the widow claims only what the law would have given her exempt from debts, if the husband had died intestate or she had dissented from his will. They are in the same condition, if dower is allowed, as they would have been in case of the intestacy of the husband; and they have no merit of their own, nor is there any default of the widow which entitles them to be placed in a better position. The creditors (411) propose to gain by depriving her of all that the husband gave her by will, or that the law gave her without will. Certainly, consequences so serious, stripping her of all means of support, cannot result from her temporary delusion — a delusion, however, common to the whole community — that the estate was not only solvent, but exceeded its liabilities by $75,000. As soon as she discovered the true condition of the estate (and her bona fides is a fact admitted in the case agreed), she instituted these proceedings for dower. The application is in apt time, and there is nothing in it partaking of a dissent from the will inconsistent with its provisions for her benefit, or conflicting with her duties faithfully to discharge the office of executrix. But it is needless to dilate when the law is positive. The statute secures to the widow a provision in lands of equal value to the dower which she would have been entitled to in case of the husband's intestacy. Strictly speaking, it is not dower, for the widow claims under the devise and not against it; but her claim is for lands devised to her, not exceeding in quantity what she would be entitled to by right of dower. The law has pointed out no mode for ascertaining and setting apart this equivalent and substitute for dower; but this beneficent provision for widows will not be allowed to fail for want of an adequate remedy, and by analogy to the mode for allotting dower, the same remedies we think are applicable and proper in cases like the present one; and such are the proceedings here. Ex Parte Avery, 64 N.C. 113.

PER CURIAM. Affirmed.

Cited: Brown v. Morisey, 124 N.C. 299; Lee v. Giles, 161 N.C. 545;In re Shuford, 164 N.C. 134.

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