Ex parte Avery, 64 N.C. 113 (1870)

Jan. 1870 · Supreme Court of North Carolina

64 N.C. 113

CORINNA M. AVERY, ex parte.

When, foi1 payment of a deceased Imsband’s debts, it becomes necessary to resort to lands devised by Mm to Ms wife, she is remitted to her right of dower, wMek, as in other cases, is not subject to those debts during her life.

A petition for dower may be ex parte, in the names of the widow and the heirs, but if the widow be guardian of the heirs, and the estate be insolvent, the heirs should be made parties defendant, with a properly constituted guardian ad litem,', and the creditors also are to be allowed to come in if they choose, and mate themselves defendants.

(Mitchener v. Atkinson, Phil. Eq. 23; Gully v. Holloway, 63 N. C. 84; Ransom v. Ransom, lb. 231, and Mary Ann Moore, ex parte, ante, 90, cited and approved.)

Do wee, tried before Mitchell, J., at Fall Term 1869, of Bueke Court.

The petition, which was ex pa/rte, in the names of the widow and heirs of William Waightstill Avery deceased, set forth that the deceased died in 1864, leaving a considerable estate in lands, which he bequeathed to his widow for life, &c.; that the will was duly proved in Burke County Court, and the widow has been duly appointed guardian of the heirs, &c.; also that the estate is found to he insolvent; the prayer was for dower, &c.

The Judge dismissed the petition, on the ground that the widow had not dissented Rom the will in due time.

The petitioners appealed.

Battle & Sons for tbe appellants.

Dick, J.

A widow wbo takes land as a devisee under the will of her husband, is remitted to her right of dower, when it becomes necessary to resort to the lands devised to her, for the payment of the debts of her husband: Mitchener v. Atkinson, Phil. Eq. 23; Gully v. Holloway, 63 N. C. 84. She may have her interest ascertained and allotted to ber, in the manner provided by law for the assignment of dower, which shall not be subject to the payment of the debts of her husband during the term of her life. When the rights of creditors are not interfered with, the widow and heirs at law may properly join in an ex ycurte petition for the assignment of dower; but this ought not to be done when the interest of creditors will be affected. In such a proceeding the rights of creditors are supposed to be represented by the heirs, and they ought to be made defendants: Ramsour v. Ramsour, 63 N. C. 231. When the estate is insolvent the heirs have no personal interest in the lands, and it cannot reasonably be supposed, that they will resist an improper admeasurement of dower; and the creditors should be allowed to protect them rights abd be made parties defendant: Mary Ann Moore, ex parte, at this term.

There was error in tbe ruling of bis Honor in tbe court below. Tbe estate of tbe testator is insolvent, and the executor has filed a petition'to subject tbe lands devised to tbe widow, to tbe payment of tbe debts of tbe testator. Tbe widow’s rights as devisee, accrued before tbe Act restoring to married women their common law right of dower; and tbe interest to which she is remitted, is one-third of tbe lands of which ber husband died seized and possessed. This petition was filed after tbe Act of 1869, chap. 93, and must be governed by its provisions.

As tbe widow is tbe regular guardian of tbe heirs, and as tbe estate is insolvent, tbe heirs must be made defendants, and be represented by a duly constituted guardian ad Utmi, and the creditors of the estate must be allowed to make themselves defendants, if they so desire.

The petitioner Corinna M. Avery, is entitled to the relief which she seeks, but the petition should be amended in the court below in the particulars above indicated. Let this be certified.

Pee Curiam. Ordered accordingly.