Lewis v. Lewis
| Citation | 7 Ired. 72,29 N.C. 72 |
| Court | United States State Supreme Court of North Carolina |
| Decision Date | 31 December 1846 |
| Parties | MARTHA LEWIS, BY HER GUARDIAN, v. DAVID LEWIS, EXECUTOR, . |
Where a testator dies, having made no provision by his will for his wife, and that wife is a lunatic under the care of a committee, she cannot claim by petition any portion of the testator's estate, because she is incapable from want of reason of dissenting herself, and her committee has no authority by law to enter a dissent in her behalf.
The case of Hinton v. Hinton, 6 Ired. 224, cited and approved.
Appeal from the Superior Court of Law of Bladen County, at the Fall Term, 1846, his Honor Judge BATTLE, presiding.
This was a petition in the name of the plaintiff by her Guardian, alleging that her late husband died, having made a last will and testament and therein made no provision whatever for her--that at the term when the said will was admitted to probate, she, in open Court, entered her dissent thereto, and praying that some suitable portion of her late husband's estate should be allotted to her, according to the Act of Assembly in such case made and provided.
The executor opposed the petition, on the ground that the petitioner was of unsound mind at the time of the death of her husband and ever since, under the care of a committee, and therefore incapable of dissenting. This fact being made to appear, the Court directed the petition to be dismissed, from which judgment, the plaintiff appealed.
Strange, for the plaintiff .
D. Reid, for the defendant .
It seems to us, that the Court could only proceed in this petition on a dissent, declared and entered according to the words of the statute: that is, when a widow is dissatisfied with the last will and testament of her husband, she may signify her dissent thereto, before the Judge of the Superior Court, or in the County Court where she resides, in open Court, within six months after the probate of the said will. There is no proviso or saving in the statute, that in case the widow be a lunatic, then her committee may dissent for her. When the Legislature has not thought proper to insert such a proviso in the Act, it seems to us, to be asking of the Court too much, for it to tack such a proviso, by way of construction, to the statute. In the case of Hinton v. Hinton, 6 Ired. 224, we held, that a widow could not dissent from her husband's will by attorney, and that she must be, personally present in open Court. The object was, to have record...
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