Cheshire v. McCoy, 52 N.C. 376, 7 Jones 376 (1860)

June 1860 · Supreme Court of North Carolina

52 N.C. 376, 7 Jones 376

Den on the demise of CHARLOTTE CHESHIRE v. JOSEPH McCOY.

Where a widow, being under age, and having no guardian, dissented from her husband’s will in person, in open Court, and on a petition, dower was assigned to her by a decree of the proper court, it was field that, though the dissent was made erroneously, yet, dower having been assigned by the judgment of a court of competent jurisdiction, her right to it could not bo impeached in an action of ejectment, brought by her, for its recovery.

Action of ejectment, before Hick, J., at the Spring Term, 1860, of Chowan Superior Court.

The following case was agreed by the parties : Alexander Cheshire, junior, executed his last will, and died in Chowan county in 1858. At December Term, 1858, of the County Court, the will was admitted to probate, and James E. Nor-fleet, the executor named therein, was qualified. Every thing he was worth was willed to his wife, but being advised that the estate was insolvent, and that no part of said legacies would be available, she went into ‘open court, within six months, and fey her attorney, dissented from the said will. She then filed her petition for dower in the said County Court, and tlie premises, in dispute, were formally allotted to her by the order and judgment of the said court upon the report of commissioners, appointed by the Court, which, on motion, was affirmed without objection on the part of the heirs-at-law.

After the institution of these proceedings for dower, and confirmation of the report and judgment as aforesaid, the executor of Alexander Cheshire, junior, filed his petition to make the real estate assets for the payment of debts, and under an o-rder thereon obtained-, sold the whole land, including the widow’s dower, to the defendant, McCoy, who went into possession thereof, and holds-the same under the title derived under that proceeding, which was afterwards confirmed by the Court .making the order.

It was agreed, by counsel, that, if the Court should be of opinion with the plaintiff, ©n the foregoing facts, a judgment in the usual form should be entered for the plaintiff, but if of a contrary opinion, the® the Court should order a nonsuit.

The Court being of opinion with the plaintiff, on the case agreed, a judgment was entered for the plaintiff. Defendant appealed.

Hines, for the plaintiff.

W. A. Moore, for the defendant.

Battle, J.

We are clearly of opinion, that the lessor of the plaintiff ought to have entered her dissent to her husband’s will, by guardian., and not in person. As she was an infant, nnder twenty-one years of age, the 1st section of the 118th chapter of the Revised Code, expressly so required, and the construction which had been put upon the Rev. Statute, chap. 121, see. 1, in the analogous cases of Hinton v. Hinton, 6 Ire. Rep. 274, and Lewis v. Lewis, 7 Ire. Rep. 72, forbids ns from adopting any other, than the literal meaning of the terms used. If the objection, then, had been made in the proceeding, instituted by the widow, to obtain an assignment of her dower, it would, upon the authority of those cases, have been fatal to her suit.

But we are, nevertheless, of opinion that the lessor of the plaintiff is entitled to recover in the present action, for the reason, that the judgment in her favor, in her suit for dower, though it is erroneous, cannot be collaterally impeached by the defendant in the present suit. The j udgment of the County Court of Chowan in favor of the widow, upon her petition for dower, was upon a judicial proceeding of a Court of competent jurisdiction, and is conclusive, unless upon some other proceeding directly to avoid it. See Skinner v. Moore, 2 Dev. and Bat. Rep. 138, and the cases referred to in the note to the second edition, and also Craige v. Neely, 6 Jones’ Rep. 170.

Per Curiam,

Judgment affirmed.