Holland v. Henson, 189 N.C. 742 (1925)

June 3, 1925 · Supreme Court of North Carolina

189 N.C. 742

TINA HOLLAND v. M. TURNER HENSON et al.

(Filed 3 June, 1925.)

Husband and Wife — Widow’s Yearly Allowance — Statutes—Limitation as to Income of Deceased Husband.

Under the provisions of O. S., 4125, the limit of the widow’s yearly allowance, that it shall not exceed one-half the annual net income of her deceased husband upon g. basis of three'years preceding his death, is the average yearly net income or the income for every twelve months, and not one-half of the sum total of the annual net income for three years next preceding his death. Dr&wry v. Bank, 173 N. C., 664.

Appeal by plaintiff from Schenck, J., at November-December Term, 1924, of Haywood.

Special proceeding for tbe allotment of a widow’s year’s allowance under C. S., 4108 et seq., instituted before tbe clerk of tbe Superior Court of Haywood County and beard on appeal by tbe judge at term.

Tbe clerk found as a fact tbat tbe value of tbe net annual income of plaintiff’s busband, W. J. Holland, for three years next immediately preceding bis death was $2,500; tbat bis widow in tbe usual proceeding for allotment of a year’s support bad been awarded tbe sum of $300, and tbat she bad consumed in addition $200, making a total of $500; tbat tbe amount annually necessary for her use was $2,350; tbat tbe one-balf of tbe annual net income for one year was $1,250, and after deducting tbe $500, tbe amount previously allotted and consumed, rendered judgment for tbe petitioner and against tbe administratrix for $750. On appeal to tbe judge, tbe judgment of -the clerk was, in all respects, confirmed. Plaintiff appeals.

William J. Hannah and William T. Hannah for plaintiff.

Smothers & Robinson for defendants.

Stagy, C. J.

Tbe only question presented by tbe appeal is whether tbe limit of tbe widow’s year’s allowance, under C. S., 4125, is tbe one-balf of one year’s net income, based on tbe annual income for three years next preceding tbe husband’s death, as held by tbe court below, or tbe one-balf of tbe sum total of tbe annual net incomes for three years next preceding tbe husband’s death, as contended for by tbe plaintiff. Tbe statute is as follows:

“Tbe said commissioners shall be sworn by tbe justice and shall proceed as prescribed in this chapter, except tbat they may assign to tbe widow a value sufficient for tbe support of herself and her family, according to tbe estate and condition of her busband and without regard to tbe limitation aforesaid in this chapter; but tbe value allowed shall not in any case exceed tbe one-balf of tbe annual net income of tbe deceased for three years next preceding bis death. This report shall be returned by tbe justice to tbe court.”

¥e think tbe court below has correctly interpreted tbe statute in tbe present case. Drewry v. Bank, 173 N. C., 664.

Annual net income means yearly net income, or'the net income for every twelve months.

Affirmed.