Harrington v. Harrington, 142 N.C. 517 (1906)

Nov. 7, 1906 · Supreme Court of North Carolina

142 N.C. 517

HARRINGTON v. HARRINGTON.

(Filed November 7, 1906).

Dower, How Assigned — Land Conveyed with Joinder of Wife — Bights of Purchasers.

1. Where the husband has sold and conveyed portions of his land for valuable consideration without the joinder of the wife, but retained lands, which descend to his heirs, of a kind and quantity which permit that dower bo assigned out of the lands descended and according to tlie provisions of tlie statute (Rev., see. 3084), tlie purchasers have a right to require that dower be allotted out of lands descended, and the lands which they have purchased and paid for be relieved of the widow’s claim.

2. Where the husband died seized and possessed of the dwelling-house in which he last usually resided, and this, with the other lands retained, are ample in quantity to allot to the widow one-third in value, as the statute provides, estimating for this purpose the land conveyed without joinder of his wife, an order alloting the -widow’s dower out of the lands other than those conveyed was proper.

PbtitioN for dower by Lucy Ann Harrington,.widow of A. J. Harrington, against A. O. Harrington and others, beard on appeal from tbe Clerk of tbe Superior Court of Chatham County by Judge James L. Webb, bolding tbe courts of tbe Eighth Judicial District.

Tbe petition was filed by tbe widow against tbe lieirs at law of A. J. Harrington, deceased; and, on application duly made, T. A. Yarborough and A. D. Judd, purchasers of certain lands conveyed to them by said A- J- Harrington during bis life, were made parties defendant.

On tbe bearing before tbe Clerk, be found tbe facts pertinent to tbe inquiry and gave judgment as follows:

“Tbe Court finds, as a fact, that this is a proceeding for dower in tbe lands of tbe late A. J. Harrington; that some time prior to his death be bad sold tbe land claimed by T. A. Yarborough, to-wit, fifteen acres to tbe said Yarborough, and that be bad sold the land claimed by A. D. Judd to N. G-. Yarborough, who bad sold and conveyed by proper deed the same to A. D. Judd, of all which property tbe said A. J. Harrington was seized during coverture, and that bis wife, tbe plaintiff in this action, did not join in tbe execution of either of said deeds, but they were executed by A. J. Harrington alone. Tbe Court further finds ag a fact that tbe report of tbe jury herein filed covers and embraces all tbe said lots of tbe said Yarborough and Judd as a part of tbe dower they allot; that there is a sufficiency of land outside of the said lots to constitute said dower, there being something like 150 acres, and that the dwelling-house and improvements are not on either of the lots of said intervenors.

“The Court being of the opinion that it is proper and right for the value of the lots of the said Yarborough and Judd to be considered in estimating the value of the property out of which dower is to be allotted, is also of the opinion, and so adjudges, that the said Yarborough and Judd have the right to require the dower to be allotted elsewhere than on their property so long as there is a sufficiency to make up same.

“The Court further finds that the said T. A. Yarborough has put certain improvements on his lots and that it would be inequitable to permit the same to pass to the widow in dower. It is therefore considered, ordered, and adjudged that the exceptions filed by the intervenors be and they are hereby sustained and the report is remanded to the jury, and they are instructed to proceed to value the real property of the late A. J. Harrington, including the lots of the inter-venors, and to allow one-third thereof in value, including the" dwelling-house, to the plaintiff, but they will allot the same on the lands other than the said two lots of the said inter-venors and make their report to this Court.”

These facts, at the hearing before the Judge below, were admitted to be true; and thereupon the Judge approved and confirmed the ruling of the Clerk and ordered that petitioner’s dower be assigned as therein directed.

From this judgment, petitioner excepted and appealed.

Beawell & Mclver for the plaintiff.

Womach; Hayes & Bynum, for the defendants.

HoKE, J.,

after stating the facts: Our statute on the subject, Eevisal, sec. 3084, enacts that a widow, entitled thereto, shall be endowed of one-third in value of all the lands, tene-merits and hereditaments whereof her husband was seized at any time during coverture; in which third part shall be included the dwelling-house in which her husband last usually resided, together with offices, outhouses, etc.

Another clause of this section provides that the jury summoned for the purpose of assigning dower to a widow “shall not be restricted to assign, the same in every separate and' distinct tract of land, but may allow her dower in one or more tracts, having a due regard to the interests of the heirs as well as the rights of the widow.”

Where a decedent dies, seized and possessed of lands in counties other than that in which the petition is filed, sec. 3089 provides a method by which the jury in such county, charged with the duty of assigning dower, shall be informed of the value of the lands lying in the other counties, to the end that this value may be considered in determining the dower to be allotted.

In construing this statute our Court has held:

1. That the entire dower must be allotted in a single 'action.

2. That the dwelling-house in which the husband last usually resided, if the right of dower attaches thereto, or so much of it as the dower interest will cover, shall be included in the allotment.

3. That subject to this direction as to the dwelling-house, the jury, according to the express terms of the statute, is not required to allot the dower in each and every tract, but may assign the entire dower in one or more of the tracts, having a due regard to the rights and-interests of the parties concerned. Askew v. Bynum, 81 N. C., 350; Howell v. Parker, 136 N. C., 373.

While the question does not seem to have been directly presented in this State, the better considered authorities elsewhere have established the principle that where the husband has sold and conveyed portions of his land for valuable considera-tiou without tbe joinder of the wife, but retained lands, which descend to his heirs, of a kind and quantity which permit that dower be assigned out of the lands descended and according to the provisions of the statute, .the purchasers have a right to require that dower be allotted out of lands descended, and the lands which they have purchased and paid for .be relieved of the widow’s claim.

This is so held in Wood v. Keys, 6 Paige (N. Y.), 478, and Lawson v. Morton, 6 Dana (Ky.), 471.

And these cases' are cited for law in Scribner on Dower, vol. 2, 597.

In Howell v. Parker, supra, decided intimation is given that, under certain circumstances, equity would require that the widow’s dower should be assigned in lands descended and the purchaser for value be protected.

In the case before us, the widow’s dower can be so assigned, and every requirement of the statute be complied with.

The husband died seized and possessed of the dwelling-house in which he last usually resided, and this with the other lands retained are ample in quantity to allot to the widow one-third in value as the statute provides, estimating for this purpose the land conveyed as a part, of the estate.

There are decisions in other jurisdictions which may seem to uphold a contrary view; but they will be found, no doubt, to rest on the position that after the death of the husband, the widow’s claim for dower is an estate which attaches to each and every separate parcel of land, and to be so allotted, and where no statute exists, as it does with us, permitting that dower be assigned in all or any one of the tracts as may be deemed best for the interest of the parties.

We are of opinion, and so hold, that, on the facts stated, the judgment of the Court below awarding the dower in the lands descended, is in accord with the statute, and with sound principles of equity, and the same is affirmed.

Affirmed.