27 N.C. 194 | N.C. | 1844
Petition of Losada Elliott, widow of John Elliott, deceased, for a year's allowance. Upon the trial it appeared that she filed (195) her petition at February Term, 1843, of Randolph County Court, at which term the court appointed a justice of the peace and three freeholders to lay off and allot to her one year's support out of her husband's personal estate; that in a few days after the filing of the petition she died, and after her death, to wit, on 8 April, 1843, the justice and freeholders proceeded to view the estate of John Elliott, deceased, and, there being no crop, stock, or provisions on hand, they assessed, "for the provision of the children of the deceased," $175, and reported their proceedings to the next county court, May Term, 1843; at which time Jesse Cox, administrator of the estate of Losada Elliott, came into court and by leave of the court, made himself party plaintiff to the proceedings, and moved that the said report be confirmed, which motion was opposed on behalf of certain creditors of the said John Elliott, to wit, Isaac White and others. The court refused to confirm the report, from which judgment the plaintiff appealed; and the case coming on to be heard before the Superior Court, his Honor declared that the county court erred in refusing to confirm the said report, and ordered that the said report be in all things confirmed; from which judgment, under leave of the court, Isaac White, one of the creditors of John Elliott, deceased, appealed to the Supreme Court, it being made appear to the satisfaction of the court that the said White had indemnified the administrator of John Elliott against the costs of the appeal and had given bond, etc. The plaintiff's intestate was the widow of the defendant's intestate, John Elliott, of the county of Randolph. After the interlocutory order had been made on her petition, appointing commissioners to allot to her a year's allowance, she died before the allotment was made by them. We think that her administrator had no right to revive and prosecute the said petition. The Legislature (196) certainly did not intend that the year's allowance out of the stock, *144 crop, and provisions of the intestate's husband should be assets for any purpose in the hands of her administrator. The intention was, as appears by the preamble to the first act on the subject (that of 1796), to provide subsistence to the widow herself and her family. The second section of the said act declares that the allotment to be made by the commissioners is to be the support of the widow and her family for the space of one year. The third section declares that such allotment then made shall vest in the widow an absolute right therein, to her own use and the use of her children. But it seems to us that if she be dead before the commissioners make the allotment, the necessity for it would of course cease, as her house and her table only, whilst she was alive were intended by the Legislature to be supported for one year out of the assets of her husband. She, alone, can sue for the allotment. The children are not authorized to sue for any allotment. They were not intended to participate in the allotment in any other way than as members of the widow's family whilst she was alive. The children, therefore, must stand upon the same footing as the infant children of an intestate father who leaves no widow, in which case the children certainly have no year's allowance. It seems to us that the petition and proceedings under it were abated by the death of the widow, before a final judgment was rendered. The judgment rendered in the Superior Court must, therefore, be reversed, and the judgment rendered in the county court must be affirmed.
PER CURIAM. Reversed.
Cited: Kimball v. Deming, post, 419; Dunn ex parte,
(197)