Summary
In Wilson v. Stafford, 60 N.C. 646, wherein property was given by will to the wife of the testator so long as she remained his widow, with remainder over to his children, and the widow dissented to the will, it is said: "This was the dissent of the widow and her claiming her share of the property as if he (her husband) had died intestate.
Summary of this case from Cheshire v. DrewryOpinion
(December Term, 1864.)
1. A widow's dissent from her husband's will, by which his estate was made a common fund for the support of herself and his children, until her death or marriage, when it was to be divided equally among his children, has the effect of making the personal property divisible among her and the children as if he had died intestate.
2. The administrator of a child, who has died since the testator, is entitled to the share of the deceased child.
3. If property be given by will to the testator's widow for life, with remainder over, and the widow dissent from the will, the remainder immediately vests in possession.
(647) THIS cause was transferred to this Court for trial from the Court of Equity of FORSYTH.
The bill was filed by the plaintiff as executor of A. J. Stafford, and prayed the advice of the court as to the construction and execution of his will.
The material parts of the will are:
"3dly. It is my desire that all such personal property as may not be essentially necessary for the use of my family be sold at public sale, and my lots in Winston, except the one whereon I now reside, if there can be anything like a fair price obtained; if not, to be rented. The other lands, to wit, the Britz place and the Wilson field, to be kept for the benefit of the family, if thought best.
"4thly. It is my will and desire that my family carriage, with the harness, be kept for the use of the family; also two horses, farming tools, etc.; also my negroes to either be hired out or worked on the plantation as thought best; but if either of them should become insolent or unmanageable, then to be sold and the money put at interest for the benefit of my family.
"5thly. I wish all such property to be left with my family that they may think necessary to carry on the business, and nothing to be sold except such as may be of little use and the family make out without it.
"6thly. After this provision for my dear wife and family, if she should think best and proper to marry again, then and in that case I desire that all my property, either real or personal, shall be sold or divided equally between my surviving children, to share and share alike. It is my wish that my children, that are too small to be put at some business, be left with my wife until they are old enough to be put at business of some kind, and not to be permitted to grow up in idleness.
"7thly. I desire, if my estate should appear sufficient, at the age of 21, my sons shall receive $500, if they are steady, etc.
(648) "8thly. It is my will and desire that as long as my beloved wife remains my widow, to be well provided for, and never to want any of the necessaries of life, if there is a sufficiency to make her and family comfortable, but not by any means to be extravagant.
"9thly. It is my will that my daughters receive, at their marriage or full age, the like sum of $500, etc.
"10thly. My desire is that at the marriage of my dear wife, or her death, that all of my money or property of every kind be either sold or divided, as may be agreed upon by my children, to share and share alike; and if any of them should die leaving heirs, for them to receive the share or shares of their deceased parents."
The testator died in 1862, leaving his wife and eight children surviving him. Two of the children have since died under age, and without issue. The widow dissented from the will, and has had dower assigned her. The testator's personal property consisted of cash on hand, securities for money, seven negroes of unequal ages and values, and various other articles.
The defendant J. M. Stafford is the administrator of one of the deceased children, and the defendant Cornelia is the administratrix of the other.
Phillips for plaintiff.
No counsel for defendants.
The main, if not the only, difficulty in the will which is now presented to us for construction has arisen from the dissent of the widow from it. The whole scope of the will prior to the tenth item, in providing for the testator's family, is manifestly framed upon the supposition of the continued existence of his wife as a widow. He foresaw that her death or marriage would entirely derange his (649) plans, and he therefore declares, in the tenth item, that should she die or marry, his desire was that all of his money, and all of his property of every kind, should either be sold or divided, as might be agreed upon by his children, each taking an equal share.
There was another event which might happen, and which if it did occur would as effectually break up his family arrangement as either of the other two, but which he seems not to have anticipated, and therefore made no provision against it. This was the dissent of the widow and her claiming her share of the property as if he had died intestate. The effect of this upon the disposition made for his children in the will must, after the assignment of her dower and the giving her an equal part with the children, of the personal estate, be the same as if she had died or married. The executors must, therefore, proceed to dispose of the property as directed by the tenth clause of the will. The administrator and administratrix of the children who have died since the death of their father will be entitled to their respective shares of the personal estate. The case of Adams v. Gillespie, 55 N.C. 244, shows that where there is the legacy of a slave to a wife for life, with remainder, the dissent of the widow will hasten the vesting in possession of the remainder.
The plaintiff may have a decree in accordance with this opinion.
NOTE. — The decree declares that "upon the dissent of Cornelia S. Stafford, the widow of the testator, the personal estate in the hands of the plaintiff as executor became subject to distribution among the widow and next of kin of the testator, as if he had died intestate." And it is adjudged and decreed that "the plaintiff pay her one-ninth part of said estate remaining after paying the debts of the testator and the costs and charges of administration, to be held by her in her own right, and one other ninth part to be held by her as administratrix," etc. And the cause is retained with liberty to any of the parties to apply for further direction therein. — Reporter.
Cited: Baptist University v. Borden, 132 N.C. 485, 506.
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