Coble v. Coble

• Citation: 42 S.E.2d 898,227 N.C. 547
• Decision Date: 05 June 1947
• Docket Number: 741.
• Parties: COBLE et al. v. COBLE et al.
• Court: United States State Supreme Court of North Carolina

42 S.E.2d 898

227 N.C. 547

COBLE et al. v. COBLE et al.

No. 741.

Supreme Court of North Carolina

June 5, 1947

Special proceeding to sell land for partition in which right of dower in an undivided one-fourth interest is called into question by guardian ad litem of a minor heir.

The parties agree that Clarence W. Coble, who owned one-fourth undivided interest of, in and to the lands in question, died on November 2, 1943, resident of the State of South Carolina, survived by his wife, Sarah Glenn Coble, and one child, Richard Lyles Coble, and leaving a last will and testament in which he willed an bequeathed (1) $4,000 to his wife "to be hers absolutely and forever * * * in lieu of dower", it not being his "intention that she is to receive any other portion" of his said estate whatsoever, and (2) the rest and residue of his property, of any and every kind, to Peoples National Bank of Chester Chester, South Carolina, for and during the minority of his son Richard Lyles Coble, in trust solely for the uses and purposes set forth. The bank was named also as executor of his will. The will of Clarence W. Coble was dated October 24 1942, and signed, sealed, published and declared by him as and for his last will and testament in the presence of three witnesses who at his request and in his presence and in the presence of each other affixed their names thereto as subscribing witnesses. It was duly probated upon the oath of one subscribing witness according to the laws of South Carolina in court of probate of Richland County, South Carolina, on the 23rd day of November, 1943, and letters testamentary were issued to Peoples National Bank of Chester the named executor.

Thereafter, on March 20, 1944, and within the time prescribed by the State of South Carolina, Sarah Glenn Coble, the widow of Clarence W. Coble, duly filed her dissent to the said will in said Richland County, State of South Carolina, pursuant to and in compliance and in accordance with the laws of the State of South Carolina, rejecting and renouncing the said legacy of $4,000, and electing to take such interest in the estate of her late husband as she would have taken had there been no will. A dissent so filed is valid under the laws of the State of South Carolina.

A transcript of the will of Clarence W. Coble, together with its probate, as authenticated and certified from the Probate Court of Richland County, South Carolina, was under date September 11, 1946, duly filed in the office of the Clerk of Superior Court of Alamance County, North Carolina on September 13, 1946, and recorded in the Will Records. But the transcript of the will and probate, so filed and recorded in Alamance County, North Carolina, did not contain a copy of the dissent and renunciation of Sarah Glen Coble.

However, on January 28, 1947, a copy of the said dissent and renunciation as filed with the said bank as executor and in the Probate Court of Richland County, South Carolina, proven before a notary public upon oath of the subscribing witness thereto was filed in the Superior Court of Alamance County, North Carolina. Also on same date, and within six months from the date of filing the authenticated copy of the will in Alamance County, North Carolina, the attorney for the widow filed a paper writing styled "Widow's Dissent" in manner prescribed by the North Carolina statute G.S. § 30-1, except that no written authority to him from her was filed.

When the cause came on for hearing in regular term of Superior Court of Alamance County, North Carolina, on January 28, 1947, upon the agreed statement of facts, the court concluded as pertinent matters of law: That the said dissent of Sarah Glenn Coble "has been duly filed both in South Carolina and North Carolina, as required by the laws of the said respective States, and that she thereupon became entitled to take, hold and receive a dower estate in and to the land and real properties and interest in land and real properties owned by her husband, C.W. Coble, and located in North Carolina at the time of his death", etc. And, thereupon, and in accordance therewith the court entered judgment.

The respondent, C.C. Cates, Jr., as guardian ad litem of Richard Lyles Coble, minor, respondent, appeals therefrom to Supreme Court, and assigns error.

C.C. Cates, Jr., of Burlington, for Richard Lyles Coble, appellant.

Belser & Belser and John W. Crews, both of Columbia, S.C., for Sarah Glenn Coble Sullivan, appellee.

WINBORNE Justice.

Decision on the challenge to the judgment from which this appeal is taken may fairly turn upon the answer to this question: Where the testator, domiciled in Richland County in the State of South Carolina, makes provision in his will for his wife, expressly in lieu of dower, and, upon the will being duly proven and probated in the probate court of said county and recorded therein, the widow files in the probate court of said county a valid dissent to said will,--thereby rejecting and renouncing the provision so made for her, and electing to take such interest in the estate of the testator as she would take had there been no will, may the widow claim dower in real estate in Alamance County in the State of North Carolina, of which testator died seized, without also dissenting there, upon the filing of an authenticated copy of the will as proven and probated in Richland County, South Carolina? The answer is "Yes".

In this connection, it is the law in the State of South Carolina that the legal right of the wife to dower in the lands of her husband cannot be defeated by his last will and testament but if, by his will, he makes a provision for his widow, and declares it to be in lieu of dower, she must elect between the two, the provision made in the will and the dower, and cannot take both. See Bannister v. Bannister, 37 S.C. 529, 16 S.E. 612; Gordon v. Stevens, 11 S.C. 46, 2 Hill, Eq. 46, 27 Am.Dec. 445; Bailey v. Boyce, 23 S.C.Eq. 84, 4 Strob. 84; Hair v. Goldsmith, 22 S.C. 566; Callaham v. Robinson, 30 S.C. 249, 9 S.E. 120, 3 L.R.A. 497; Matthews v. Clark, 105...