Whitted v. Wade

100 S.E.2d 263 (1957)

247 N.C. 81

Maud G. WHITTED, by her Guardian, Malcom L. Grady, Petitioner, v. Melvin M. WADE and wife, Katrine P. Wade; Yvonne Wade, a Minor, William Melvin Wade, a Minor, Mabel Whitted, Sallie Whitted, Joe Gray Whitted and wife, Shirley Whitted, Frances Odom and husband, Norwood Odom, Ormand Whitted, a Minor, Leslie Ray Whitted, a Minor, Willie W. Turnage and husband, John Turnage, Temesia W. Benton and husband, William F. Benton, Winnie W. Davis and husband, Robert Davis, William Whitted and wife, Pauline M. Whitted, and all other children in esse or who may be hereafter born to the marriage between the said Katrine P. Wade and Melvin M. Wade, and any and all other persons interested in the properties of William G. Whitted, deceased.

No. 315.

Supreme Court of North Carolina.

October 30, 1957.

*265 Wallace & Wallace, Kinston, for plaintiff appellee.

Jones, Reed & Griffin, Kinston, for defendants appellants.

WINBORNE, Chief Justice.

The question involved on this appeal is stated by appellant substantially in this manner: Is the plaintiff barred by G.S. § 30-1 or by laches from dissenting from the *266 will of her late husband, William G. Whitted, and from demanding an allotment of dower in his lands, and from obtaining an accounting for rents and profits on account of her alleged dower interest therein? It was in this strain that the trial court briefed the law, and we hold properly so, in the light of the stipulated facts.

General Statutes, § 30-1, enacted in 1869, Laws 1868-9, Chap. 93, Sec. 37, and brought down through the several codifications, The Code, § 2108, Revisal, § 3080, and Consolidated Statutes, § 4096, in substantial accord, expressly provides that every widow may dissent from her husband's will before Clerk of the Superior Court of the county in which the will is proved at any time within six months after the probate; and that the dissent may be in person, or by attorney under given circumstances, but that "if the widow be an infant, or insane, she may dissent by her guardian."

And this Court, in interpreting and applying this statute, G.S. § 30-1, in Hinton v. Hinton, 61 N.C. 410, as it then appeared, has characterized it as a "Statute of Limitation", and not an enabling statute. It is said in this connection (1) that dower is a common law right accruing to a widow, and when she is about to be divested of her right by the will of her husband, the law accords her a period of time within which to proceed in a court of law to protect and retain the right, and (2) that the six months period for dissent as provided in G.S. § 30-1 is not a condition precedent to the right, but merely limits the time in which she may resort to the courts to enforce it.

Since, therefore, G.S. § 30-1 is a statute of limitation, G.S. § 1-17 applies to this case. This statute, G.S. § 1-17, provides that "a person entitled to commence an action * * * who is at the time the cause of action accrued * * * insane * * * may bring his action within the times herein limited, after the disability is removed, except in an action for the recovery of real property, or to make an entry or defense founded on the title to real property, or to rents and services out of the same when he must commence his action, or make his entry, within three years next after the removal of the disability, and at no time thereafter."

In this connection the appellee contends, and properly so, that construing G.S. § 30-1, the Hinton case, supra, and G.S. § 1-17 together, it would appear that an insane widow is not barred by the statute of limitations, but may bring the action through a guardian as provided in G.S. § 30-1 within three years after the disability is removed pursuant to G.S. § 1-17. Compare Richardson v. Justice, 125 N.C. 409, 34 S.E. 441. There this headnote epitomizes the opinion: "By statute, Code sec. 2108, the widow is allowed six months in which to dissent from her husband's will nor will she be precluded from the exercise of this legal right, by any agreement, even under seal, which she may be induced by the executor to sign, in ignorance of the condition of the estate"

Here it is true no guardian was appointed within six months after the will of the husband was proved. Nevertheless, a guardian for Maud G. Whitted, the widow, on the day of his appointment, not only filed on her behalf a dissent to the will of her husband, but instituted this special proceeding for allotment of dower, and for an accounting of rents and profits as prayed in the petition. This appears to be orderly procedurefree from error.

Affirmed.