Richardson v. Justice, 125 N.C. 409 (1899)

Dec. 5, 1899 · Supreme Court of North Carolina

125 N.C. 409

FANNIE A. RICHARDSON, Widow, v. N. B. JUSTICE and Wife, et al., heirs at law of Jesse Richardson.

(Decided December 5, 1899.)

Petition for Dower — -Dissent From Will — Six Months — The Gode, Sec. 2] 08.

By statute, Code, sec. 2108, the widow is allowed six months in which to dissent from her husband’s will, nor will she he precluded from the exercise of this legal right, hy any agreement, even under seal, which she may he induced by the executor to sign, in ignorance of the condition of the estate.

The plaintiff, widow of Jesse Richardson, dissented from her husband’s will, and filed this Special ProceediNg for dower before the Clerk of the Superior Court of Chatham County, which was transferred to Term for trial upon issues raised, and was heard before Brown-, J., at Fall Term, 1899.

E. C. Poe, the executor of Jesse Richardson, on his own application was made party-defendant, and interposed the following written agreement under seal, executed by the widow, as a bar to her petition for dower1:

“Whereas, I, the widow of the late Jesse Richardson, have been and am somewhat dissatisfied with the last will and testament of my deceased husband; and wdiereas, I have so1 told E. 0. Poe, the executor named in the said will, and he has considered the matter and has made to me a proposition which makes it entirely satisfactory to me, which proposition is that he will pay to me the sum of seven hundred and twenty-eight dollars and eighty-four cents out of the first moneys coming into his hands as such executor, independent of the amounts left to me in the said will:

“Now, therefore, in consideration of said amount, to be so paid me, I hereby express my entire satisfaction with said will takdn in connection with the said amount, and hereby agree to accept the same, abide by said will and take under it in all respects therein set out.

“In testimony whereof, I have hereunto set my hand and seal, this the 18th day of August, 1899.

“FaNNte A. Richaedsow. [Seal.]

“Test: T. T. Olakk."

It appeared that the foregoing agreement was procured from her by the executor six days after the death of her husband; that she was in ignorance as to the condition of the estate, and that the executor had paid nothing and done nothing in consequence of the agreement.

His Honor ruled that the petitioner was not concluded by the contract set up in the answer, and had a right to dissent, and adjudged that she was entitled to her dower in the lands of her deceased husband.

Defendants excepted and appealed.

Messrs. Womaclc & Hayes, for appellant.

Mr. II. A. London, for appellee.

MONTGOMERY, <1.

This was a special proceeding commenced before the Clerk of the Superior Court by the plaintiff against the heirs at law of her deceased husband for the allotment of her dower in his land. On the hearing of the matter in the Superior Court, it appeared that the petitioner, sopiewhat dissatisfied with the provisions of the will of her deceased husband, sis days after his death entered into a contract under seal with E. 0. Poe, the executor named in the will, by which she agreed to accept a proposition made to her by Poe to the effect that she would receive the sum of $728.84 to be paid her by the executor out of the first money coming into his hands as such executor — that amount to be outside of the provisions made in the will for the petitioner, and the petitioner to abide by the terms of the will. It also' appeared that the executor, Poe, had incurred no extra expense, had taken no steps in consequence of the contract between himself as executor and the petitioner, that nothing had been done by him except those things in the ordinary course of administration, and that he had not acted on the agreement so as to cause any loss to the estate. Five days after the contract and .eleven days after the death of the petitioner’s husband, this proceeding was begun. Upon the pleadings and the admitted facts his Honor was of the opinion that the petitioner was not concluded by the contract from entering and filing her dissent from the will, and that she was entitled to her dower. We think his Honor’s judgment should be affirmed. Our statute, sec. 2108 of The Code, allows a widow six months from the probate of the will of her husband within which to dissent. Clearly that time is allowed by the law to enable the widow to make an examination into the value of the estate, the debts and liabilities, and for ber to come to an intelligent conclusion as to the course she should pursue under all the circumstances that surround her. The circumstances of this case do not show that deliberation and care on the part of the petitioner which would preclude her from the right, after she made the contract and within the time allowed by law, from making dissent to the will. The haste was great. So far as we can see she had no acquaintance with the affairs connected with the estate; there had been no statement made showing how the estate was affected as to the liabilities of the deceased husband. She had no information upon which she could form a judgment as to what course she should pursue. The proposition of settlement was made by the executor six days after the death of the husband and three days after the probate of the will. The record does not show any condition of facts which go to repel the idea that the widow did not have sufficient time after the probate of the will in which to make up an intelligent judgment as to her course, and we are brought to the conclusion under the circumstances of the case that she ought not to be concluded from dissenting to the will and from claiming her dower.

The contention of the defendant’s counsel that the contract being under seal conclusively presumes that. it was made upon a good and sufficient consideration does not apply here. The entire contract is set out, the agreement of the petitioner and the consideration for that agreement, but it is nevertheless such a contract as the law will not enforce against the petitioner for the reasons we have stated.

Affirmed.