Lewis v. Lewis, 29 N.C. 72, 7 Ired. 72 (1846)

Dec. 1846 · Supreme Court of North Carolina

29 N.C. 72, 7 Ired. 72

MARTHA LEWIS, BY HER GUARDIAN, vs. DAVID LEWIS, EXECUTOR, &c.

Where a testator dies, having made no provision 6y his will for his vvifd, 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.

The case of Hinton v. Hinton, 6 Ired. 224, cited and approved.

Appeal from the Superior Court of Law of Bladen County, at the Fall Term, IS46, his Honor Judge Battle', presiding.

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 lier, 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 a'nd’ 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 the plaintiff.

D. Reid, for the defendant.-

Daniel, J.

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 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 ns, to be asking of the Court too much, for it to tack such a proviso, by way of construction, to the statute. In the case of Hinton v. Hinton, 6 Ired. 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 affirmed..

Pep Curiam, ' Judgment affirmed,