Lowery v. Lowery

• Decision Date: 31 January 1870
• Citation: 64 N.C. 110
• Court: North Carolina Supreme Court
• Parties: MARY LOWERY v. PATRICK LOWERY, and others.

64 N.C. 110

MARY LOWERY

v.PATRICK LOWERY, and others.

Supreme Court of North Carolina.

January Term, 1870.

*1 In a petition for Dower, in the County Court, judgment was given that the petitioner was entitled, and an order made for a jury to allot it; upon the return of their report at the next term, a person who claimed to be true heir of the deceased, came in, and suggested that there had been no marriage between the latter and the petitioner; an issue was made up accordingly, and at an ensuing term it was tried, and a verdict given in accordance with the suggestion; upon the petitioner's appealing to the Superior Court, she moved that the report be confirmed; this the Judge declined to do, and ordered another issue to be tried, and petitioner appealed again. Held:

1. That the alleged heir could not intervene to have the judgment for Dower set aside, as he was no party to the proceedings.

2. That such intervention could not, under the circumstances, be supported as an application by one aggrieved by the particular admeasurement, to have it set aside.

( Stiner v. Cawthorn, 4 D. & B. 501, Edwards v. Bennett, 10 Ire. 361, Purvis v. Wilson, 5 Jon. 22, Jacobs v. Burgwyn, 63 N. C. 196, and Murphy v. Merritt, Ib. 502 cited and approved.)

DOWER, heard by Buxton, J., at July Special Term 1869, of ROBESON Court.

The proceedings had commenced in the County Court of Robeson at August Term 1856, by a petition on the part of the widow, to which her children were made parties defendants as heirs of Allen Lowery deceased, and service had been accepted, and no defence made. The writ of dower thereupon issued, and at February Term 1867 a report was made allotting dower, and no exception was filed by the defendants. At that Term one Goins and his wife, filed a petition verified by affidavit, that Mrs. Goins was a daughter of the deceased, and had not been made a party to the proceedings, and charging that the petitioner never had been married to the deceased, and therefore was not entitled to dower; upon this an issue was made up, and being continued, was brought to trial at August Term 1867, and thereupon a verdict found, that the petitioner had not been married to the deceased. Judgment was given “accordingly,” and the petitioner appealed.

At the above mentioned Term of the Superior Court, the petitioner moved that the report of the jury should be confirmed, and the defendants did not object; but, at the instance of the said Goins and wife, the Court refused to make an order of confirmation, and directed an issue, “whether Elizabeth Goins, wife of William Goins, is one of the heirs at law of said Allen Lowery, deceased,” to be submitted to a jury.

The petitioner appealed.

RODMAN, J.

*2 At August Term 1866 of Robeson County Court, Mary Lowery filed her petition against Patrick Lowery and others, described as the children and heirs of Allen Lowery, praying that dower might be assigned to her as his widow, in certain lands. It does not positively appear that any judgment for dower was entered on the records of the Court. The Clerk however, issued a writ, tested on the 4th Monday of November 1866, commanding the Sheriff to summon a jury to assign the petitioner dower, and in this writ he recited the filing of the petition, “and it was ordered by the Court that a writ of dower should be issued to the Sheriff in her behalf,”??&c. At February Term 1867 the Sheriff returned the writ, and a report of the jury assigning dower. At the same Term, William Goins and Elizabeth his wite, filed a plea alleging that she is heir of the deceased, and that there never was a marriage between him and the...