| N.C. | Jan 5, 1869
The plaintiff was administrator of one Joseph Caroon; the defendants Cooper and another were executors of one Davenport, and the other defendants were the widow and children of Joseph Caroon.
The bill alleged that Joseph Caroon in his life time had purchased of the executors of Davenport a tract of land sold by them under an order of Court, but had died leaving a large part of the price unpaid, the title remaining untransferred; that the plaintiff as administrator of a former wife of Joseph Caroon, had recovered from the executors of Davenport a large sum of money, and being advised that when recovered it was assets of Joseph Caroon's estate, they had applied it to the debt due upon the purchase of the land; that a considerable sum remains yet unpaid, and other large debts exist, and that it is necessary to sell Joseph Caroon's interest in the land, c.
The answer of the widow admitted the material facts alleged in the bill; but submitted that she was entitled for dower to one-third of the full value of such tract — either in land, or in its proceeds, and therefore, that the reversion upon the one-third to which she was entitled for life, together with the other two-thirds of the land, should be applied to the debts, including the balance of the purchase money, in exoneration of her share.
The other answers submitted to a decree. "When a man shall be seized of a legal right of redemption, or of an equity of redemption, or other equitable or trust estate in fee, his wife shall be entitled to dower therein, subject to valid incumbrances thereon, in the same manner as in legal estates of inheritance." Rev. Code, ch. 118, sec. 6.
In the case before us, the widow's right to dower is clear; *388 subject, however, to the incumbrance of the purchase money.
The learning on this subject is discussed at length in the cases ofThompson v. Thompson, 1 Jon. 430, and Campbell v. Murphy, 2 Jon. Eq. 357. In Thompson v. Thompson, Chief Justice Pearson uses this language: "Whether the other two-thirds of the land, and the reversion of the third covered by the dower, will not be bound to exonerate the widow, by being applied to the discharge of the debt of her husband, is a question that we will not now decide, as it was not discussed before us."
This case presents that very question, and indeed it is the only one which it is necessary for us to consider; for, although the plaintiff, as administrator of Louisa Caroon, a former wife of the intestate Joseph Caroon, recovered a sum of money from the guardian of the said Louisa, and applied the same in part payment of this incumbrance, he did no more than he was bound to do, and cannot now be heard to complain, or claim to be subrogated to her right.
The personal estate is the fund primarily liable to the payment of debts, and the widow has a right to have it applied in exoneration of her dower. If that fund be exhausted, her right to dower is subject only to the incumbrance of the purchase money, but not to other debts. If a widow dissents from her husband's will, she is remitted to her right of dower, which is held above the will, and is liable neither to debts nor legacies.
If the widow's right of dower is of such superior dignity as to defeat all debts and legacies, we can see no reason why, in a case like this, her claim should be entitled to less consideration. Where a purchaser of real estate at a Master's sale, gave bond for the purchase money, and died before the sale was reported to, or confirmed by the Court, but the Court after the death confirmed the sale, it was held, that the widow had a right to have the lots in question disincumbered of the lien, for the purchase money, and to have dower allotted therein. Klutts v. Klutts, 5 Jon. Eq. 80. The decisions on this subject in the different States are conflicting, but in North *389 Carolina, they all point in one direction, and are favorable to the view of exonerating the widow's dower.
Our conclusion is that the widow is entitled to have dower assigned out of the whole tract; and cannot be called upon, until it is ascertained that the remaining two-thirds, and the reversion in the one-third covered by her dower, is insufficient to pay off the incumbrance of the purchase money.
Let a decree be drawn accordingly.
PER CURIAM. Decree accordingly.