64 N.C. 113 | N.C. | 1870
The petition, which was ex parte, 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 *88 bequeathed to his widow for life, etc.; that the will was duly proved in Burke County Court, and the widow has been duly appointed guardian of the heirs, etc.; also that the estate is found to be insolvent; the prayer was for dower, etc.
The Judge dismissed the petition, on the ground that the widow had not dissented from the will in due time.
The petitioners appealed.
A widow who 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,
There was error in the ruling of his Honor in the court below. The estate of the testator is insolvent, and the executor has filed a petition to subject the lands devised to the widow, to the payment of the debts of the testator. The widow's rights as devisee, accrued before the Act restoring to married women their common law right of dower; and the interest to which she is remitted, is one-third of the lands of which her husband died seized and possessed. This petition was filed after the Act of 1869, chap. 93, and must be governed by its provisions.
As the widow is the regular guardian of the heirs, and as the estate is insolvent, the heirs must be made defendants, and be represented by a duly constituted guardian ad litem, and the creditors of (115) the estate must be allowed to make themselves defendants, if they so desire.
The petitioner Corinna M. Avery, is entitled to the relief which *89 she seeks, but the petition should be amended in the court below in the particulars above indicated. Let this be certified.
Per curiam.
Ordered accordingly.
Cited: Simonton v. Houston,
