Opinion
(December Term, 1844.)
1. Though it is otherwise in England, yet by our statute any testamentary provision for a wife in either real or personal property excludes her from any other share of her husband's estate of either kind, unless she dissent from the will in the manner and within the period pointed out by the statute and thereby elect to take according to her legal rights, independent of the will.
2. This case happened before the act of 1835, ch. 10, but that act refers only to the case of personal estate, giving the widow the same share of a residue of personal estate as if the husband had died intestate, but has no provision as to real estate.
APPEAL from PITT Fall Term, 1844; Caldwell, J.
(137) J. H. Bryan and Biggs for plaintiffs.
Mordecai for defendant.
The case was heard upon the pleadings, and according to them the case is this: Benjamin Brown died in September, 1822, having made his will in October, 1821, and therein provided for his wife by gifts of both real and personal property, and appointed the defendant executor. In November, 1822, the defendant proved the will, and delivered to the plaintiff and other specified legatees their legacies. The will contained no residuary clause, and there was a considerable surplus of personalty not disposed of, which the executor then divided among the children of the testator as his next of kin.
In March, 1844, the plaintiff, who is the testator's widow, instituted, under the statute, the present suit against the executor by petition in the Superior Court, and therein claims a child's part of the surplus. The answer insists that the plaintiff was never entitled to a share thereof, and, if she had been, that she is now barred by her laches in not sooner claiming it.
On the hearing the Superior Court dismissed the petition, and the plaintiff appealed.
According to the rule as finally established in Pickering v. Stamford, 2 Ves., Jr., 272, 581, and 3 Ves., 332, 493, the plaintiff would be entitled to a decree in England. It is there settled that a testamentary provision in lieu of thirds of the testator's real and personal estate does not exclude the widow from a share of the surplus undisposed of, or that turns out not to have been effectually disposed of, but that she shall have the same share thereof as if the husband had died intestate. But the rule does not prevail in this State. The Court has not dissented from the rule, as one arising out of the general equitable doctrine of election, applied to persons claiming under the statute of distributions. But the Legislature, in the act of 1784 and 1791, have enacted a different rule of election. It is unnecessary to go through their provisions in detail, because it has already been distinctly and repeatedly held that they clearly import that any testamentary provision for a wife in either real or personal property excludes her from any other share of her husband's estate of either kind, unless she dissent from the will in the manner and within the period pointed out by the statute, and thereby elect to take according to her legal rights, independent of the will. In Craven v. Craven, 17 N.C. 338, it was so held in respect of dower, where the provision in the will was entirely of personalty. In Redmond v. Coffin, 17 N.C. 437, the widow took both land and chattels under the will, in which there was a disposition of certain slaves of the residue of the estate, which was illegal and ineffectual; and it was held, as to them, that there was a resulting trust for the next of kin, excluding the widow. In Ford v. Whidbee, 21 N.C. 16, there was a gift to the wife of certain personalty, and also a piece of land (138) for two years, and then a further gift of $1,000 in lieu of dower; and there were also legacies to two (out of six) of the testator's children, expressed to be in satisfaction of all their portions of the testator's estate, and there was a residue of personalty not disposed of. We decided that the two children, notwithstanding the words of exclusion, were entitled equally with the other four to the surplus, inasmuch as the law gave it to them unless the testator gave it to some one else. But at the same time we held that, notwithstanding the will only mentioned that the wife's dower was satisfied thereby, she could not claim any part of the residue, because the statute shut her out unless she would dissent. These adjudications are conclusive, the more especially as they are sanctioned by a just inference from the subsequent action of the Legislature. In the next session after the decision of Ford v. Whidbee it was enacted that whenever a testator shall leave a residue of personal estate undisposed of in his will, and shall leave a widow, she shall be entitled to the same share of the residue as if the husband had died without leaving a will. This act, 1835, ch. 10, purports to change the law in respect to the personal estate, and to that only. Consequently it leaves the rule enacted in the previous statutes of '84 and '91 in full force as to dower, and the adjudications thereon unquestioned. But the recent act has no operation in this case, as the testator died in 1822.
PER CURIAM. Affirmed.
(139)