27 N.C. 136 | N.C. | 1844
The case was heard upon the pleadings, and according to them the case is this: Benjamin Brown died in September, 1822, having made his will in October, 1821, and therein provided for his wife by gifts of both real and personal property, and appointed the defendant executor. In November, 1822, the defendant proved the will, and delivered to the plaintiff and other specified legatees their legacies. The will contained no residuary clause, and there was a considerable surplus of personalty not disposed of, which the executor then divided among the children of the testator as his next of kin.
In March, 1844, the plaintiff, who is the testator's widow, instituted, under the statute, the present suit against the executor by petition in *104 the Superior Court, and therein claims a child's part of the surplus. The answer insists that the plaintiff was never entitled to a share thereof, and, if she had been, that she is now barred by her laches in not sooner claiming it.
On the hearing the Superior Court dismissed the petition, and the plaintiff appealed.
According to the rule as finally established in Pickeringv. Stamford, 2 Ves., Jr., 272, 581, and 3 Ves., 332, 493, the plaintiff would be entitled to a decree in England. It is there settled that a testamentary provision in lieu of thirds of the testator's real and personal estate does not exclude the widow from a share of the surplus undisposed of, or that turns out not to have been effectually disposed of, but that she shall have the same share thereof as if the husband had died intestate. But the rule does not prevail in this State. The Court has not dissented from the rule, as one arising out of the general equitable doctrine of election, applied to persons claiming under the statute of distributions. But the Legislature, in the act of 1784 and 1791, have enacted a different rule of election. It is unnecessary to go through their provisions in detail, because it has already been distinctly and repeatedly held that they clearly import that any testamentary provision for a wife in either real or personal property excludes her from any other share of her husband's estate of either kind, unless she dissent from the will in the manner and within the period pointed out by the statute, and thereby elect to take according to her legal rights, independent of the will. In Craven v. Craven,
PER CURIAM. Affirmed.
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