James Harrell was at the time of his death the owner in fee of an undivided one-half of the land described in the petition, and his widow was therefore entitled to have set apart to her as dower one-sixth in value of the whole land.
In the petition in the proceeding for dower the title is truly stated, and the petitioner only asks for the allotment of one-third of one-half, or one-sixth in value of the whole, and there is nothing in the record tending to prove that she gained any advantage, or that more was allotted to her than she was entitled to.
We would not, therefore, be justified in setting aside the proceeding, to which all persons in interest were made parties, and which seems to have been conducted to a just conclusion, upon slight grounds, when, so far as we can see, the same judgment would be rendered in another- proceeding, and we are of opinion the objections raised are not valid.
It is not necessary to have a division of the land before the allotment of dower.
The doctrine is correctly.stated in 14 Cyc., 902: “A wife is not entitled at common law to dower in an estate held by her husband as a joint tenant; but «he is entitled to dower in estates held by him in common, and in most States the same is now true of estates in joint tenancy under statutes abolishing the right of survivorship and providing that the share of a'joint tenant shall go to his heirs, or changing estates in joint tenancy to estates in common. If partition of an estate in common is made during the lifetime of the husband, his wife’s dower is limited to the portion set apart to him. But partition need not precede the setting aside of the widow’s dower. It may first be set aside and partition be afterward made.”
The Eevisal, sec. 2511, permitting the allotment of dower in a proceeding for partition, and the case of Seaman v. Seaman, 129 N. C., 293, holding that the widow is entitled to have her dower allotted before a sale for partition, are in recognition of this principle.
The second objection is not sustained by the record. The children of James Harrell inherited from their father an undivided one-half of the land, subject to the dower-right of the widow, and they acquired the other half by the deed of their aunt, a sister of J ames Harrell, and a co-tenant with him.
This was the condition of the title when the petition for dower was filed, and it was alleged in the petition that the widow was entitled as *70dower to one-third of one-half of the land, and that the children of James Harrell were the owners of the whole, subject .to the dower, which was admitted by the guardian ad litem, and which could not be true if they were not parties as grantees of their aunt and as heirs of their father.
The appointment of the guardian ad litem before service upon the infants was irregular, but it does not render the proceeding void, and the irregularity was cured by the service of the summons on the infants thereafter and the filing of an answer by the guardian ad litem, as was held in Carraway v. Lassiter, 139 N. C., 146.
The answer of the guardian ad litem was sufficient, and counsel for defendant very properly abandoned the objection to it by failing to discuss it in the brief.
Upon a consideration of the whole record .we find no error.
"We have treated this as a motion in the dower proceeding, although it is not clear that such motion was made. If not, the dower proceeding could not be attacked collaterally in the petition for partition. Tyson v. Belcher, 102 N. C., 112; Coffin v. Cook, 106 N. C., 376.
Affirmed.