Mendenhall v. Mendenhall

• Decision Date: 31 December 1860
• Citation: 8 Jones 287,53 N.C. 287
• Court: North Carolina Supreme Court
• Parties: DELPHINA E. MENDENHALL v. JAMES R. MENDENHALL.

8 Jones (NC) 287

53 N.C. 287

DELPHINA E. MENDENHALL

v.JAMES R. MENDENHALL.

Supreme Court of North Carolina.

December Term, 1860.

Where a widow qualified as executor of her husband's will, it was held that she could not afterwards dissent from the will and claim dower.

This was a PETITION for DOWER, heard before SAUNDERS, J., at Fall Term, 1860, of Guilford Superior Court.

George C. Mendenhall died in the month of March, 1860, leaving a last will and testament in which the petitioner, Delphina, is named as executrix. She qualified at the term of the county court next after the death of her husband, which was May term, 1860. At August term, 1860, she filed her dissent from the will. The testator died possessed of a large real estate, and this petition is filed against the defendant as heir-at-law, and prays that she be allowed dower in said lands.

Upon the hearing of the petition and answer, his Honor being of opinion with petitioner, gave judgment that the writ issue. From this judgment defendant appealed.

Graham and Fowle, for the plaintiff .

Morehead and McLean, for defendant .

PEARSON, C. J.

A husband dies leaving a last will and testament, in which he appoints his wife sole executrix. She offers the will for probate, and qualifies as executrix. The question is, does she by doing so, waive her right to dissent from the will? or can she afterwards enter her dissent and claim dower, a year's provision and distributive share as if her husband had died intestate?

This Court is of opinion that by qualifying as executrix and taking on herself the burthen of executing the will, she waived her right to dissent.

Our conclusions are based on several considerations, all or any one of which, it seems to us, are sufficient to sustain it.

The act of qualifying as executrix, and undertaking upon oath, to carry into effect the provisions of the will, is irrevocable. She cannot now renounce and discharge herself from the duties thereby assumed. This is settled law. It follows that she thereby waived any right, which she before had, which is inconsistent with the act done and the duties assumed.

The right to dissent is inconsistent with her act of qualifying as executrix, and the duties thereby assumed in this:

1. The appointment and qualification of one as executrix, operates as an assignment in law, and vests the whole personal estate in such executor. If one executes a writing by which he appoints A B his executor, that is a will. A B thereby becomes the owner of the estate, and after paying off the debts, is, by the common law, entitled to the surplus.

If one executes a writing by which he disposes of his property after his death, without appointing an executor...