Opinion
(June Term, 1861.)
1. The personal estate, which is in this State, of one residing in another State, in respect to both debts and legacies, must be administered by one qualified to act under the orders and control of our courts and according to our laws, but in regard to the payment of legacies and distributive shares, our courts, from comity, adopt the laws of the domicil.
2. A decree for a distributive share in another State, was Held, not to be a bar to a recovery of a distributive share of property lying in this State.
3. The widow of one domiciled in another State, who died intestate, seized and possessed of lands in this State, is entitled to her dower in such lands.
4. Where one, residing in another State, made a will, which was not satisfactory to his widow, who duly entered her dissent on its being offered for probate in that State, and also entered her dissent when it was offered for probate in that State, it was Held, that she is entitled to dower and a distributive share of property lying in this State.
5. It was further Held, that a decree for dower in another State would be considered as confined to the lands situate in such other State, and as not embracing lands situated in this State.
CAUSE removed from the Court of Equity of JONES.
The bill is filed by the widow of Edward Starkey Jones, of Alabama, who had lands and personal property in the counties of Jones and Onslow, in this State. The bill sets out that the decedent, (191) E. S. Jones, made a will in Alabama, which was duly admitted to probate in Dallas County, in that State, but from which she dissented at the time of its being offered for probate, according to the laws of that State. Afterwards, the said will was duly admitted to probate in the County Court of Onslow, in this State, where a large part of his personal and real estate was situated, and at that term she also dissented from the will of her said husband. The bill is filed against the legatees under the will of E. S. Jones, and against his heirs and next of kin, also against his executors and against the representatives of Richard Jones, a deceased son, who died in the lifetime of the testator, and it prays for dower in the lands lying in this State, and also for an account and a distributive share of the personalty in this State.
The defendants answered severally, but did not deny any of the allegations of fact stated in the bill. They, however, objected to the plaintiff's recovery of dower, as well as her share of the personalty, because the act of Assembly, Revised Code, ch. 118, sec. 1, requires that she must "signify her dissent to her husband's will before the County Court of the county wherein she resides," and that as she did not reside in any county in North Carolina, she could not make such dissent at all, and, therefore, could not have her dower or distributive share.
The defendants also objected, and showed, that the plaintiff had filed a bill for, and obtained a decree for, a distributive share of her husband's personal estate in the State of Alabama, and that she is barred by such decree from setting up claim to any further share of his personal property in this State.
It was also objected by the defendants, and the fact was shown to this Court, that the plaintiff had filed a bill and obtained a decree for her dower in her husband's lands in the State of Alabama, and had had the same laid off to her, and they alleged such decree and (192) assignment of dower in bar of her application in this Court.
The parties, by their counsel, filed a written agreement that all errors of form are waived, and the case put upon its merits, and the cause was sent to this Court by consent.
Haughton, for the plaintiff.
McRae and J. W. Bryan, for the defendants.
The rules of pleading and the orderly mode of proceeding and making entries in a cause are intended not merely for the convenience of the parties, so that they may not be taken by surprise, but also for the convenience of the Court, so as to prevent confusion and embarrassment which is apt to occur whenever the regular course of things is departed from. In this case, the objection to the bill on the ground of it being multifarious, and because it improperly prays for a division of the slaves and other personal property, instead of an account and settlement of the personal estate, and the difficulties growing out of the vague entries in the transcript, so that the Court can not see whether the case is set for hearing on bill and answers (taking the answers to be admitted), or on bill, answers, replication and exhibits, and is left to inference from the manner in which the cause was treated on the argument, that the latter is the manner in which it was intended to be brought to a hearing, may all be met, so far as the parties to this cause are concerned, by the general statement that "all errors of form are waived, and the case is to be put upon its merits," but still this does not answer the purpose of avoiding the danger of confusion, and of relieving the Court from embarrassment in deciding a case where the claim to a distributive share of the personal estate and a claim to dower out of the real estate, are blended together, although the subjects are governed by different principles of law, and the parties are different. We think it right to call the attention of the gentlemen of the bar to this matter, so that it may not be drawn into a precedent, and a like indulgence be again asked for. Indeed, it was with much (193) hesitation that we concluded to proceed with this case, according to the construction we put on the entries made in "the transcript."
1. The personal estate which was in this State at the death of the testator, both in respect to the payment of debts and the payment of legacies and distributive shares, must be administered by executors who are qualified by, and act under, the orders and control of the Courts of this State, according to the law of this State, but in regard to the payment of legacies and distributive shares, from comity, our Courts adopt the law of the domicil, which, in this instance, is the State of Alabama. The doctrine on this subject is disposed of by the case of Alvaney v. Powell, 55 N.C. 51, and the discussion is so full as not to call for any further elaboration of the question. It is set out in the pleadings and admitted, that by the law of that State, a widow who is not satisfactorily provided for by the will of her husband, may enter her dissent, and will, thereupon, be entitled to a distributive share, as in case of intestacy, and the plaintiff has duly entered her dissent according to the requirement of the law, consequently there can be no reason why she shall not receive such distributive share of the personal estate in this State, and to that end, there will be a decree for an account, etc.
It is alleged by the answers that the plaintiff has obtained a decree for her distributive share in the State of Alabama, and is, therefore, barred of any further claim of a distributive share of the property in this State, as she has already been fully satisfied. But we do not understand the decree in the Court of Alabama as embracing any of the personal estate other than that which was in that State. Indeed, it can not be supposed to embrace the personal estate in this State, for, as we have seen, that must be administered under the orders and by the authority of our Courts, and the Court in Alabama had no control over, or concern with it. So, the decree there, in respect to the property there, is not a bar to her right, to have a like decree here, in respect to property here.
2. In respect to real estate situate in this State, we do not, from comity, adopt the law of the domicil, but apply our own laws as (194) to the mode of descent, transfer, devolution and all other particulars. By the common law, a widow was entitled to dower in all the lands and tenements of which her husband was seized at any time during coverture, of an estate of inheritance which she might, by possibility, have issue capable of inheriting. By the act of 1784, the right of dower was restricted to such lands and tenements as the husband died seized and possessed of. There can be no question that the widow of one domiciled in another State is entitled to dower in the lands and tenements situate in this State, of which he was seized and possessed at the time of his death.
When the husband leaves a last will and testament, there is a provision in the act of 1784, under which the widow may enter her dissent and claim dower, and in respect to this provision, the argument stands thus:
If the statute is to be construed literally, and applies only to the widows of persons resident in this State, by force of the words, "may signify her dissent thereto before the County Court of the county wherein she resides, in open Court, when the will is propounded, or within six months after the probate thereof," it follows, as the provision does not apply to her case, that she is entitled to dower under the general provision, without a dissent, in all the lands and tenements of which her husband was seized and possessed at the time of his death; for the will does not take effect until after his death, and so he dies seized and possessed, notwithstanding any devise or disposition which he may make of such lands and tenements by his will.
If the statute is to receive a liberal construction (and this, we suppose, is the true one), so as to make it mean that the widow is to signify her dissent in the County Court where the will is admitted to probate, at the time it is propounded, or within six months after the probate thereof, then it applies to the case of a nonresident widow, and it follows that in our case the widow is entitled to dower, because she (195) has signified her dissent in due form in the County Court where the will was admitted to probate, upon the supposition that the provisions in question applies to her. So that, in either way, the plaintiff is entitled to dower according to the prayer of the bill.
If the plaintiff had not entered her dissent in the State of Alabama, but had taken under the will the lands devised to her in that State, and had then come here and entered her dissent and claimed dower, we are inclined to the opinion that she would not have been entitled to it, because, having taken under the will, she would not be allowed to take against the will here, according to the doctrine established by Mendenhall v. Mendenhall, 53 N.C. 287. But as she dissented there, and has also dissented here, and claims against the will in both States, her acts harmonize, and her right seems to be a very clear one.
In regard to the decree which it is alleged she has obtained for her dower in Alabama, and which the answer seeks to set up in bar to her dower in the lands situate here, we must consider it as confined to the lands situate in Alabama, and that the lands in this State were not taken into consideration, so it can not amount to a satisfaction, and is not a bar to the right she now seeks to assert.
There will be a decree for the plaintiff, declaring her entitled to dower, and also to an account and distributive share of the personal estate.
PER CURIAM. Decree accordingly.
Cited: Medley v. Dunlap, 90 N.C. 528; Pollard v. Slaughter, 92 N.C. 81; Syme v. Badger, Ib., 712; Efland v. Efland, 96 N.C. 493; Smith v. Ingram, 130 N.C. 104; Jones v. Layne, 144 N.C. 602, 612.
(196)