Brd.Nax v. Brd.Nax

• Decision Date: 13 November 1912
• Court: North Carolina Supreme Court
• Parties: BROADNAX. v. BROADNAX et al.

76 S.E. 216

160 N.C. 432

BROADNAX.

v.BROADNAX et al.

Supreme Court of North Carolina.

Nov. 13, 1912.

1. Death (§ 11^*)—Wrongful Death—Right of Action.

At common law there was no right of action for wrongful death.

[Ed. Note.—For other cases, see Death, Cent. Dig. §§ 10, 15; Dec. Dig. § 11.*]

2. Executors and Administrators (§ 176*)— Widow's Support—Right to.

The right of a widow to a year's support is purely statutory.

[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 661-666: Dec. Dig. § 176.*]

3. Executors and Administrators (§ 181*)— Widow's Allowance—Funds Chargeable.

Under Revisal 1905, §§ 59, 60, which provides that recovery for wrongful death shall be disposed of as provided for the distribution of intestate personalty, and under section 3095, which provides that a widow's allowance for one year's support shall be assigned from personalty in decedent's possession at the time of his death, a widow is not entitled to enforce allowance out of funds recovered for decedent's wrongful death.

[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 681-685; Dec. Dig. § 181.*]

Appeal from Superior Court, Forsyth County; Allen, Judge.

Controversy without action between Alice Broadnax and Alice Broadnax, administratrix, and others. From the judgment, plaintiff appeals. Affirmed.

This is a controversy submitted without action, and the material facts are that William Broadnax, the husband of Alice Broadnax, the plaintiff herein, was an employe at the plant of the Reynolds Tobacco Company, and, while so employed, was killed. He left several children, both minors and adults, but no property, either real or personal. Alice Broadnax qualified as his administratrix and settled any claim which she, as administratrix, had by reason of the death of her intestate, receiving as the result of said settlement the sum of $900, and the only question involved in this appeal is whether Alice Broadnax, as the widow of William Broadnax, is entitled to her year's allowance out of the said fund of $900. His honor held against the claim for a year's allowance, and the widow excepted and appealed.

John M. Robinson, of Winston-Salem, for appellant.

W. Reade Johnson, of Winston-Salem, for appellee administratrix. Louis M. Swink, of Winston-Salem, for other appellees.

ALLEN, J. [1] At common law there was no right of action to recover damages for wrongful death, and the right of action conferred by statute is one that did not exist before. Killian v. Railroad, 128 N. C. 261, 38 S. E. 873; Bolick v. Railroad, 138 N. C. 371, 50 S. E. 689.

The right of the widow to a year's support is also purely statutory. Williams v. Jones, 95 N. C. 506.

It follows, therefore, that the determination of this controversy depends upon a construction of the two statutes. The first was enacted in 1854 (Laws 1854-55, c. 39) and was re-enacted in the Revised Code, c. 1, §§ 8, 9, 10, and 11, in the Laws of 1808-69, c. 113, §§ 70, 71, and 72, in the Code of 1883, §§ 1498, 1499, and 1500, and in the Revisal of 1905, §§ 59 and 60.

In the original act and in the Revised Code it was provided that any recovery of damages should be disposed of according to the statute for the distribution of personal property in case of intestacy, and in the act of 1868-69, in the Code of 1883, and in the Revisal of 1905 the statute became a part of the chapter for the settlement of the estates of deceased persons; it being provided in the first (Laws 1868-69) that: "The amount recovered in such action is not lia-ble to be applied as assets, in the payment of debts or legacies, but shall be disposed of as provided in this act for the distribution of personal property in case of intestacy"—and in the others (Code 1883 and Revisal 1905): "The amount recovered in such action is not liable to be applied as assets, in the payment of debts or legacies, but shall be disposed of as provided in this chapter for the distribution of personal property in case of intestacy." Note that the language since the Code of 1883 is that the amount recovered shall be disposed of as provided "in this chapter" for the distribution of personal property in case of intestacy, and when we turn to the chapter we find the statute of distribution a part of it, but no provision therein for the widow's year's support. It would seem, therefore, that the language of the statute conferring the right of action in the event of death is directly opposed to the...