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Lewis v. Lewis

Supreme Court of North Carolina
Dec 1, 1846
29 N.C. 72 (N.C. 1846)


(December Term, 1846.)

Where a testator dies, having made no provision by his will for his wife, and that wife is a lunatic under the care of a committee, she cannot claim by petition any portion of the testator's estate, because she is incapable from want of reason of dissenting herself, and her committee has no authority by law to enter a dissent in her behalf.

APPEAL from BLADEN Fall Term, 1846; Battle, J.

This was a petition in the name of the plaintiff, by her guardian, alleging that her late husband died, having made a last will and testament, and therein made no provision whatever for her; that at the term when the said will was admitted to probate she, in open court, entered her dissent thereto, and praying that some suitable portion of her late husband's estate should be allotted to her, according to the act of Assembly in such case made and provided.

The executor opposed the petition on the ground that the petitioner was of unsound mind at the time of the death of her husband and ever since, under the care of a committee, and therefore incapable of dissenting. This fact being made to appear, the court directed the petition to be dismissed, from which judgment the plaintiff appealed.

Strange for plaintiff.

D. Reid for defendant.

It seems to us that the court could only proceed in this petition on a dissent declared and entered according to the words of the statute: that is, when a widow is dissatisfied with the last will and testament of her husband she may signify her dissent thereto before the judge of the Superior Court or in the county court where she resides, in open court, within six months after the probate of the (73) said will. There is no proviso or saving in the statute that, in case the widow be a lunatic, then her committee may dissent for her. When the Legislature has not thought proper to insert such a proviso in the act, it seems to us to be asking of the court too much for it to tack such a proviso, by way of construction, to the statute. In Hinton v. Hinton, 28 N.C. 224, we held that a widow could not dissent from her husband's will by attorney, and that she must be personally present in open court. The object was to have record evidence both as to the time and the fact. How can it be said that the widow was dissatisfied with her husband's will when she was at the time a lunatic, and incapable of a rational satisfaction or dissatisfaction with it? The dissent was not hers, but that of the guardian. It is but justice to state that the testator had left a considerable legacy to his son (the defendant), and directed him (in the will) to support his (the testator's) wife for her life. Whether the directions to the son to maintain the wife of the testator is a charge on the legacy given to the son, or whether she could or ought to have an election to take that interest or a distributive share of her husband's estate are questions that a court of law certainly has no jurisdiction to decide on. The judgment of the court dismissing the petition was, in our opinion, correct, and judgment must be

PER CURIAM. Affirmed.

Cited: Cheshire v. McCoy, 52 N.C. 377.


Summaries of

Lewis v. Lewis

Supreme Court of North Carolina
Dec 1, 1846
29 N.C. 72 (N.C. 1846)
Case details for

Lewis v. Lewis

Case Details


Court:Supreme Court of North Carolina

Date published: Dec 1, 1846


29 N.C. 72 (N.C. 1846)

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