Saunders v. Russell, 60 N.C. 97, 1 Win. 97 (1863)

June 1863 · Supreme Court of North Carolina

60 N.C. 97, 1 Win. 97

ALICE SAUNDERS, widow, v. DANIEL RUSSELL, Adm’r.,

An ii'luiiiiistrator lias a right to appeal from an order of the county court afl't'nnug the year’s allowance made to a widow.

Tms was a petition in behalf of the widow of the defendant’s intestate for a year’s provision ont of her husband’s estate. A decree theretofore had boen duly had in the County Court of Onslow. Commissioners were appointed to make the allotment; the allotment, was mad'e andreturnedto court, and on motion, the same was confirmed anda decree-made accordingly. Whereupon defendant appealed, on-the-ground-, that the allotment was excessive. On opening, the ease before- Heath, J., at tlie Fall Term, 1861, of Onslow Superior Court, the-counsel of the petitioner moved to dismiss the appeal as having been-improperly granted. On snch motion, the appeal was dismissed, and a procedendo awarded to the county court; from which order the defendant appealed to this Court.

Gran, Humphrey- and P'ersony for the plaintiff.

Jioore, for the defendant.-

Pearson, C. J-.

It is provided : Efevised Code, chap. 118, section 20, “ upon the return- of the report, if the same be not excepted to by the administrator or next of kin, or any legatee, or if excepted to, and the exception be disposed of, the Court shall make such decree therein, as may seem to be right and proper.”

Upon exception being- taken by the administrator,, or next of kin, or legatee, there are adversary parties — a suit is constituted in court, and from the decree either party may appeal according-to the general law in respect to appeals.

The judgment, in the Superior Court,, dismissing the appeal, is reversed.

Pee Curiak,, Judgment reversed.