| N.C. | Jun 5, 1878
Case Agreed: The plaintiff is the widow of C. L. Cook who died intestate in 1872. Letters of administration were granted to the defendant, who qualified on 7 December, 1872, and entered (306) upon the discharge of his duties as administrator; and within twelve months thereafter the widow applied to him to have her year's support allotted according to law, which the defendant refused upon the ground, — that in the life time of her husband the plaintiff was guilty of adultery, and at the time of his death an action for divorce was pending in Northampton Superior Court in favor of said intestate and against the plaintiff; and also for the reason that he has been advised that plaintiff can not recover in this action, for that it was not brought within twelve months after the defendant qualified as administrator. The summons in this case was issued on 1 October, 1877, and served on the defendant on 12 October. The plaintiff was guilty of the adultery in 1864 or '65, and as soon thereafter as the said intestate ascertained the facts to be true, he separated from her and never received her as his wife again, but in 1872 brought the said action for divorce. The plaintiff has received no part of the personal estate of the intestate for the support of herself and three children, all of whom are under the age of fifteen years and are living with her. The said personal estate is not and never has been worth $2,000, but there is now in the hands of the defendant about $600, out of which the plaintiff is entitled to her year's support, if entitled at all.
The Probate Judge decided that the plaintiff was not entitled to recover, His Honor affirmed the judgment and dismissed the proceeding, from which ruling the plaintiff appealed. *234
Several objections are made to the plaintiff's recovery: 1. In 1864 she committed adultery, whereupon her husband (307) separated from her and they have not lived together since. It was held in Walters v. Jordan,
The law was amended in this respect by Laws 1871-'72, ch. 193, sec. 44, by which adultery was made to cause a forfeiture of her year's provisions and distributive share as well as her dower. This act does not apply in the present case, because the adultery was committed before its enactment. The language of the act is prospective, — "if any married woman shall elope with an adulterer," etc. It does not appear whether the husband died before the ratification of this act on 12 February, 1872, or not, probably afterwards. But she had at least a contingent right to a year's provisions in case of her surviving him, which the legislature might have taken away; but apparently it did not intend to do so, and we are not justified in putting a construction on the words beyond their apparent meaning when the effect would be to take away even an incoherent right.
2. The plaintiff within a year after the decease of her husband applied to the administrator to assign her a year's provisions. He however refused or neglected to do so, and this action was brought in October, 1877, more than five years after the husband's death. It is objected that it can not be maintained because not brought within a year. And such is our opinion.
There must be some term of time applicable to the claim of every right within which it must be sued for. The policy of the law will not permit any demand to exist in perpetuity or indefinitely, unless legally asserted. In the present case that term of limitation must be one of three, — either that of one year from the origin of the right by the death of the husband, or of two years, at the end of which the administrator is required to settle the estate and pay to the (308) distributees, or ten years after which all claims (in general) are presumed to have been satisfied or abandoned. We think that the act of 1868-'69, ch. 93 (Bat. Rev., ch. 117) clearly fixes the first of these. Sec. 14 gives a year's provision to a widow. Secs. 16-25, fix the amount where the personal estate does not exceed $2,000, at $300, etc. Sec. 18 makes it the duty of an administrator, on application in *235 writing by the widow, within one year after the decease of the husband, to assign her year's provisions in the manner and to the value prescribed. Secs. 26, 28, provide that when the estate is solvent and the personalty exceeds $2,000, the widow is not confined to obtaining her year's provision by applying to the administrator under sec. 18, but she may, without such application, or, after having upon such application received the sum allowed upon it, apply to the Probate Court to have a year's provision, either original or additional; but she must do so within one year after thedecease of her husband. (Note. — In sec. 26, as printed in Bat. Rev., there is a serious misprint which mars the sense. The first sentence, properly, and in the original act, ends with the word "prescribed," and the word "without" is the first word in the next sentence, and should be spelt with a capital "W.")
It is seen that there is no direct statement of the time in which an action must be begun, when the administrator refuses to assign upon the demand of a widow any time short of ten years (long before anticipated by the legislature.
It is impossible to infer, from the mere omission of the legislature expressly to prescribe a limitation for a case so unlikely to occur, that it intended to allow a widow any time short of ten years, (long before the expiration of which the estate is required to be and generally is, settled up) within which to bring her action to compel the administrator to do his duty.
Unless this was the intent, the limitation of the plaintiff's action must be either one year or two, and in either case, she (309) is barred.
We think, however, that the intention of the act may be inferred with reasonable certainty to limit the widow to one year for commencing any action to recover her year's provision. In every case which the legislature anticipated and expressly provided for, the limit is one year. The evident intent of the allowance is to provide for the widow and her family, a support for the first year after her husband's death, as nearly as that can conveniently be done. The administrator is required within one year to ascertain, as nearly as he can, all the liabilities of the estate, which includes this. If an estate be able to pay all its liabilities, the administrator may do so at once without any proceeding in the Probate Court, yet the solvency or insolvency of the estate may depend on the legality of the widow's claim. It is impossible not to see that if a widow can keep her claim alive for more than one year without commencing an action, the administrator will be seriously embarrassed in his management of the estate. By the end of two years *236 the administrator is required if practicable to have paid off all the liabilities of the estate, and to pay over to the distributees their shares. This would be impracticable if the widow has any time short of two years to bring suit in. He could not protect himself from her claim, or protect her by a refunding bond, for this only covers debts of theintestate, of which the widow's claim is not one. The claim is barred by the statute of limitations.
Judgment affirmed.
Cited: Leonard v. Leonard,
(310)