Corporation Commission v. Dunn

• Decision Date: 05 December 1917
• Docket Number: 456.
• Parties: CORPORATION COMMISSION ET AL. v. DUNN ET AL.
• Court: North Carolina Supreme Court

94 S.E. 481

174 N.C. 679

CORPORATION COMMISSION ET AL. v. DUNN ET AL.

No. 456.

Supreme Court of North Carolina

December 5, 1917

Appeal from Superior Court, Mecklenburg County; Cline, Judge.

Proceeding by the State, on the relation of the Corporation Commission and another, against R. A. Dunn and J. B. Brown, executors of P. M. Brown, deceased, and Mrs. Daisybel Brown. From a judgment of nonsuit, the State appeals. Reversed.

Peter Marshall Brown died in May, 1913. His widow, Daisybel P Brown, dissented from her husband's will, and was allotted for her dower lands valued at $65,850, besides $2,000 cash as her year's allowance. She was married to Peter Marshall Brown in 1905, and was 34 years old at the time of his death. The present value of her dower based on the tables of expectancy is $56,222.78. The inheritance tax on all the other property of the said P. M. Brown, deceased including the remainder after the dower has been paid by the executors, but no tax has been paid on said $56,222.78, nor on the $2,000 year's allowance, and this action is to recover the 1 per cent. inheritance tax on said sums, less $10,000 exemption allowed to the widow by the statute. By consent the court found the facts as above stated, and directed a nonsuit. From this judgment, the State appealed.

Walker and Hoke, JJ., dissenting.

A man has no natural right to dispose of his property by will legislation as to wills and descent, whether to children or widow by way of dower, controlling.

The Attorney General, R. H. Sykes, Asst. Atty. Gen., and George W. Wilson, of Gastonia, for the State.

Pharr & Bell, of Charlotte, for appellees.

CLARK C.J.

The case presents the single question whether the dower and year's allowance which under our statute accrue to a widow upon her husband's death intestate, or upon dissent to his will, are subject to the inheritance tax under section 6, c. 201, Laws 1913. That section reads as follows:

"From and after the passage of this act all real and personal property of whatever kind and nature which shall pass by will or by the intestate laws of this state from any person who may die seised or possessed of the same while a resident of this state * * * shall be and hereby is made subject to a tax for the benefit of the state as follows: [Here follows the details]."

Whether an inheritance tax shall be laid or not, and the rate thereof, and the exemptions, allowed, are matters which rest in the power and discretion of the lawmakng department. "Laws imposing an inheritance tax must be liberally construed to effectuate the intention of the Legislature." Norris v. Durfey, 168 N.C. 321, 84 S.E. 687. This statute allows an exemption from the inheritance tax in favor of adult children of $2,000; in favor of minor children $5,000; and in favor of the widow $10,000. Prior to this act, it would seem that the widow's dower was exempt from taxation. The insertion in this statute of the following: "Provided, a widow shall be entitled to an exemption of $10,000, and each child under 21 years of age to an exemption of $5,000," is a clearly expressed intention that all above $10,000 of the property which passes to the widow, whether by will or on intestacy, shall be subject to the inheritance tax. The intent of the Legislature is as clear as its power. No property of which the husband was seised and possessed can pass to the widow except by will or under the intestate laws of the state.

The suggestion that dower is vested in the widow by virtue of the contract of marriage and passes by such contract and not by law cannot be sustained. The authorities may be said to be uniform against this position. In 9 R. C. L. p. 563, it is said, under the head of Dower, § 5:

"Positive Law, Not Contract, as Basis.--In our law the right to dower is not regarded as springing from contract, although the contract of marriage is a prerequisite to its existence, but from the positive terms of the common law or statute law. Its existence and incidents are therefore determined by the law of the state in which the real estate lies, not by that of the place of the marriage or the domicile of the parties; and, likewise, by the law existing when the estate becomes consummate by the husband's death, instead of by that in force at the time of the marriage, or at the time of the acquisition of the real estate by the husband. The constitutional questions raised by changes of law made while rights of dower are inchoate are discussed elsewhere."

The reference "elsewhere" is to section 8, which states that:

"It is also the rule that the wife's expectation of dower, that is, her inchoate right of dower, even after the husband has become seised of particular real estate, is not a vested right within the protection of the constitutional provision," citing numerous authorities.

In 14 Cyc. 882, it is said:

"Dower is inchoate after seisin of the husband and during coverture, and consummate after the death of the husband."

On page 885 it is said:

"Although there is early authority to the contrary, it must now be regarded as settled that dower is not the result of any contract between husband and wife, either express or implied. But it is an institution of the state, founded upon public policy and made by positive law an incident of the marriage relation."

On page 925 it is said:

"An inchoate right of dower is not an estate, nor is it an interest in real estate."

In Norwood v. Marrow, 20 N.C. 578, Ruffin, C.J., says:

"There is no contract between husband and wife for curtesy or dower. The interest the one gets in the property of the other, the law gives for the encouragement of matrimony. * * * It is certain that such as her estate (dower) is, the law makes it without any act of the husband, and even against his will."

To same purport Rose v. Rose, 63 N.C. 391. That dower is not a part of the contract of marriage, but is an estate arising and passing by operation of law, is well settled both in this country and in England. In 2 Scribner on Dower the result of the English authorities is thus given:

"It will be observed that this estate arises solely by operation of law, and not by force of any contract, express or implied, between the parties; it is the silent effect of the relation entered into by them, not as in itself incidental to the relation or as implied by the marriage contract, but merely as that contract calls into operation the positive institutions of the municipal law."

Blackstone and Littleton speak of five species of dower, which had been gradually evolved from the variant customs as to dower prevailing in different parts of England, but these from time to time have been dropped or abolished, except what is known as "dower by the common law," which is defined as:

"One-third part of all the lands and tenements of which the husband was seised in fee simple or fee tail at any time during the coverture, and of which any issue which she might have had might, by possibility, have been heir, to be held by the wife for the term of her natural life."

This was abolished in this state in 1784, and was not restored till 1868. It is not so generally known that it was abolished and more completely in England in 1834 and has remained so, the only dower there existent for the last 83 years has been dower in one-third of the real estate of which the husband died seised and possessed, subject, however, to the right of the husband by will to bar even this. In fact, dower at common law has not only been thus abolished in England, but it exists unchanged by statute hardly anywhere. 14 Cyc. 883 says:

"In many of the United States dower, exactly or substantially as it existed at common law, has been recognized as in force or adopted by judicial declaration or by express constitutional or statutory provisions, while in others it has been very materially changed by statute. In other states dower has been abolished altogether, and a different right or interest subtituted, as for example a certain portion of the husband's real property in fee simple, or a certain portion of community property, or both."

Common-law dower was not only abolished in this state in 1784, and remained so till 1868, but there are many cases in which it can be defeated, which would not be the case if it was based upon an implied contract between husband and wife. It may be defeated by divorce or by felonious slaying of the husband by the wife (Revisal, § 2109); by elopement or abandonment (section 2110); by dissent of widow (Revisal, § 3081); the dower of an insane wife may be conveyed by the husband alone (Revisal, § 959); and dower may be defeated by mortgage of the husband alone when for part of purchase money (Revisal, §§ 958 and 3085).

It must be seen that while dower is a provision for the widow, by virtue of the statute, out of the property left at her husband's death, it is not a vested right, nor an estate in land, nor is it in any sense based upon an implied contract arising out of the marriage. It is purely statutory like the laws of devolution of all property upon death; such property being disposed of by the law as to dower, or descent, or by will according to the statute in force at the time of death of the owner. As has been repeatedly said by this and other courts, when a man dies he has no natural or inherent right to dispose of the property that he leaves behind him. The lawmaking body as to wills and as to descent whether to children or widow by way of dower, controls. In Sutton v. Askew, 66 N.C. 172, 8 Am. Rep. 500, it was held that the Legislature could increase the inchoate right of dower by restoring the common-law right of dower which gave her dower in all the lands of which the husband was seised and possessed during coverture,...