Perkins v. Brinkley

• Decision Date: 29 September 1903
• Citation: 133 N.C. 86,45 S.E. 465
• Court: North Carolina Supreme Court
• Parties: PERKINS. v. BRINKLEY et al.

45 S.E. 465

133 N.C. 86

PERKINS.

v.BRINKLEY et al.

Supreme Court of North Carolina.

Sept. 29, 1903.

EXECUTORS—RIGHTS OF WIDOW—YEAR'S SUPPORT — WILLS — DISSENT — ELECTION — ANTENUPTIAL CONTRACT—EFFECT.

1. Code 1883, § 2116, allows a year's support to the widow of a testator only when she has dissented from the will, and section 2108 provides that no right to dissent exists after the lapse of six months from the date of probate of the will. Held, that a suit by a widow to recover a year's support, brought before she had dissented from the will, and after the expiration of the six months from the probate thereof, was not maintainable.

2. Where, in contemplation of marriage, the woman executed an antenuptial contract, reciting that, in consideration of a conveyance of certain land for her benefit, she agreed not to claim for herself any interest in any of the property of her husband, and thereby relinquished all right of dower, by virtue of said marriage, to or in her husband's estate, she thereby relinquished her right thereafter to a year's support, given to a widow who dissents from her husband's will, by Code 1883, § 2116.

v 2. See Executors and Administrators, vol. 22, Cent. Dig. § 695.

Appeal from Superior Court, Halifax County; Pred Moore, Judge.

Action by Mary E. Perkins against Abram Brinkley and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Pittman & Kerr, for appellant.

Thos. N. Hill, for appellees.

CLARK, C. J. This is a proceeding for year's provision, begun January 1, 1902, by the plaintiff, widow of W. M. Perkins, who died January 2, 1901, leaving a will, which was probated January 11, 1901. The plaintiff did not dissent from the will till January 11, 1902, being after this proceeding was instituted. The allowance of a year's provision is in derogation of the disposition of property by a will, when there is one, and therefore can only be granted in such case when the will has been set aside as to the widow Dy her dissent. Code 1883, § 2116, allows a year's support only to the "widow of an intestate, or of a testator from whose will she has dissented." This action, therefore, cannot be maintained, because at the time it was begun the plaintiff had not filed her dissent, and for the further reason that she had no right to dissent after the lapse of "six months after the probate" of the will. Id. § 2108. By acquiescing six months in the disposition of the property by the will, the widow loses any right to disturb it by having any part appropriated for her benefit, and the executor is authorized absolutely to proceed to execute it, free from any claim from her. in Cook v. Sexton, 79 N. C. 305, Rodman, J., enforcing forfeiture of the right by failure to comply with the fur ther requirement that the application for year's support shall be made "within one year after the death of her husband" (Code, §§ 2120, 2128), says: "There must be some term of time applicable to the claim of every right within which...