Simonton v. Houston

• Decision Date: 31 January 1878
• Citation: 78 N.C. 408
• Court: North Carolina Supreme Court
• Parties: ROXANNA SIMONTON v. J. H. HOUSTON and wife and others.

78 N.C. 408

ROXANNA SIMONTON

v.J. H. HOUSTON and wife and others.

Supreme Court of North Carolina.

January Term, 1878.

SPECIAL PROCEEDING for Dower commenced in the Probate Court and tried on appeal at Fall Term, 1877, of IREDELL Superior Court, before Cloud, J.

Robert J. Simonton died in the year 1876, in Iredell County, leaving a last will and testament in which he named the plaintiff (his widow) his executrix, who instituted this proceeding in June, 1877, against the creditors of her testator, to have her dower allotted. The case agreed states; that said will was duly admitted to probate on the 27th of February, 1876, and the plaintiff qualified as executrix; that she proceeded to collect the assets of the estate and paid some of the debts of her husband in full; that she bona fide supposed the estate was solvent and was worth $75,000 over and above all liabilities during the entire time within which she was allowed by law to dissent from said will; that thereafter, to wit, after six months from the date of her qualification as executrix, she became satisfied that the estate of her husband was insolvent; and it was agreed that said estate is insolvent, and that by the terms of the will the entire estate both real and personal was devised and bequeathed to the plaintiff, and that it was necessary to sell the real estate to pay the debts of the plaintiff's testator.

Upon this state of facts His Honor was of the opinion that the plaintiff was entitled to dower out of the lands described in the pleadings, not exceeding the quantity she would have been entitled to by right of dower had her husband died intestate, and gave judgment accordingly, from which the defendants appealed.

Messrs. J. M. McCorkle, A. W. Haywood and G. N. Folk, for plaintiff .

Messrs. R. F. Armfield and M. L. McCorkle, for defendants .

BYNUM, J.

“Every widow may dissent from her husband's will before the Court of Probate of the County in which the will is proved, at any time within six months after probate.” Bat. Rev. ch. 117 § 6. Where the widow does not dissent, there is no prescribed time within which she must apply for dower, and as in this case she enters no dissent to the will and makes no application adverse to her rights under it, there is no statute and no principle of the common law which bars her right of dower, or the equivalent of it, in the lands of the husband. The case of Mendenhall v. Mendenhall, 8 Jones 287, is therefore not in point.

The claim of the widow in this proceeding is based upon Rev. Code ch. 118, § 8, which is in these words; “The dower of the widow, and also such lands as may be devised to her by his will, if such lands do not exceed the quantity she would be entitled to by right of dower, shall not be subject to the payment of debts due from the estate of her husband during the term of her life.” It cannot admit of a doubt that this statute secures and was intended to secure a provision out of the husband's lands to the...