260 N.C. 757 | N.C. | 1963
The defendants assign as error the .action of the court below -in signing judgment to the effect that the act of qualifying as executrix under the circumstances involved did not estop the plaintiff from subsequently dissenting from her husband’s will within six months after probate, and that she is entitled to take a share in the estate of her late husband in the same manner .and to. the same extent as -though he had died intestate.
Ordinarily, where a widow offers a will for probate ‘and qualifies as executrix thereunder, .and -enters upon the duties of her office, or knowingly -takes property thereunder, she may not afterwards be .allowed to resign and dissent from said will. In re Meadows, 185 N.C. 99, 116 S.E. 257.
It is otherwise when it appears that such widow “was at the time -mentally and physically disqualified.' from attending to .the business in hand or having any intelligent concept of what she was about.” In re Meadows, supra; In re Shuford’s Will, 164 N.C. 133, 80 S.E. 420, and cited cases; 166 A.L.R. Anno.—Wills—Election by Beneficiary, at page 323.
In the last cited case this .Court .said: “The widow having qualified as executrix, relying upon .the advice of her son and son-in-law, the latter ia member of the ibar in active practice, and upon an assurance of the other executors by which she was led to- believe that adequate provision would be made for her, which indeed the living children have endeavored to do, we think .she wa.s entitled to enter her dissent, notwithstanding her qualification, which she has done within the six months prescribed by the statute, upon finding that the assent of the living children would not be a protection to the executors in paying out the additional provision.”
The .statute G.S. 30-1 .allows a widow six months from .the probate of the will of her husband within which to -dissent. “Clearly that time is allowed by the law to enable the widow to -make an examination into the value of the estate, .the debts -and liabilities, -and for her to come to an intelligent conclusion as to the course she should pursue under -all the circumstances that .surround her.” Richardson v. Justice, 125 N.C. 409, 34 S.E. 441.
The stipulations in this case make it clear that the plaintiff was at no time -between the death of her husband on 7 June 1962 and 3 July 1962, the date she qualified as executrix, mentally and physically capable of making an adequate -examination of the value of her husband’s estate or her rights with respect thereto.
The judgment entered below is
Affirmed.
