16 N.C. 185 | N.C. | 1828
— This bill is brought for the twofold purpose of setting up a contract, made by the testator of the Defendant with the Plaintiff his then wife,
The law proceeds strictly upon the notion of union of person in husband and wife, and it is only in some extreme and excepted cases, that the wife can implead or he impleaded, without her husband ; but in Equity, she may be a Plaintiff or Defendant, without the concurrence of her husband, as in cases where she prays relief against him. (Terry v. Terry, Pres. Ch. 275. Lambert v. Lambert. 1 Ves. jun 21.) And she may defend a suit sepa
As to the remaining question, whether the Plaintiff is to be put to her election? it is believed that the law has left no discretion on the subject; for however desirable it might be, that in so small an estate, the testator’s children should exclusively enjoy the benefit of it, yet the widow’s claim to distribution is founded on a clear legal right. The principle to be extracted from all the cases is, that an intention to exclude that right, must be showm, either by express w'o.vds, or a manifest implication ; but there is here nothing from which such an intent can be inferred.
— Declare that the Defendant’s testator made an agreement in the bill mentioned, and direct an account of the property of the Plaintiff at the time of her marriage; and also of the assets in the Defendant’s hands.