Vannoy v. Green, 553.

• Decision Date: 28 February 1934
• Docket Number: No. 553.,553.
• Citation: 173 S.E. 277,206 N.C. 77
• Parties: VANNOY . v. GREEN et al.
• Court: North Carolina Supreme Court

173 S.E. 277

206 N.C. 77

VANNOY .

v.GREEN et al.

No. 553.

Supreme Court of North Carolina.

Feb. 28, 1934.

Appeal from Superior Court, Ashe County; Clement, Judge.

Action by Mabel Green Vannoy against Josie Green, widow, and others. From an adverse judgment, Josie Green appeals.

Affirmed.

On April 16. 1931, G. C. Green died intestate seized and possessed of real estate in Ashe county. He owned valuable personal property. In September, 1931, the petitioner instituted a special proceeding before the clerk for allotment of the widow's dower and partition of the real property. Pleadings were filed and the clerk found that the personal property was sufficient to pay the debts of the intestate, advancements that might be recovered, and the costs of administration, and appointed three men to serve as jurors and commissioners in allotting dower and partitioning the land. The commissioners complied with the order of the court and made their report.

Josie Green excepted to the report on the ground that she was not permitted by the commissioners to select the real property which was to be allotted as her dower; that the valuation of the property allotted to her was too high; and that she was not allotted one-third in value of the lands of her deceased husband.

The clerk heard and considered affidavits filed by the parties and confirmed the report On appeal to the superior court Judge Clem ent, after finding as a fact that the widow requested the jurors to give her an opportunity to point out property for the allotment of her dower and that they ignored her request and allotted dower in property she did not want, affirmed the order of the clerk. From this judgment the widow, Josie Green, appealed.

T. C. Bowie, of Jefferson, for appellant.

Ira T. Johnston, of Jefferson, and C. W. Higgins, of Sparta, for petitioner.

W. B. Austin, of Jefferson, for Hazel Austin, Glenn Austin, Mary Austin, and Alice Dee Austin.

ADAMS, Justice.

The only appellant is Josie Green, widow of G. C. Green, who died intestate on April 16, 1931. The procedure is not questioned; in the allotment of dower and the partition of land only one proceeding is necessary. C. S. §§ 3226, 4105; Baggett v. Jackson, 160 N. C. 26, 76 S. E. 86. The appeal presents the question whether a widow has a legal right to select the land upon which her dower shall be allotted, i. e., whether she has a legal right to determine the location of her dower.

At common law a widow had no estate in her husband's land until her dower was assigned. Spencer v. Weston's Heirs, 18 N. C. 213; Harrison v. Wood, 21 N. C. 437. She was permitted to remain in his mansion for forty days after his death, the period known as "the widow's quarantine, " during which her dower was to be allotted. The particular lands to be held in dower were assigned by the heir of the husband or by his guardian, and, if neither the heir nor his guardian assigned her dower within the term of quarantine, the sheriff was appointed to make the allotment.

Under the old English law there were five species of dower, in only one of which the widow "endowed herself, " a species which was found necessary to the release of lands held under a particular tenure and which was abolished along with military tenures and is now of interest chiefly as an incident in the evolution of the law. 2 Bl. 135; 2 Scribner on Dower, 65 et seq. In the common law we. find no basis for the appellant's argument. The old method of the heir's assigning dower, at one time recognized in this state (Williamson v. Cox, 3 N. C. 4; Sutton v. Burrows, 6 N. C. 79), has been superseded by various statutes, the last of which arecontained in chapter 80, of the Consolidated Statutes, some of which, however, have been amended. In section 4104 it is provided that if the personal property of a decedent be sufficient to pay his debts and the charges of administration, the heir and the widow may agree to an assignment...