3 N.C. 149 | Sup. Ct. N.C. | 1801
The act of 1796, ch. 29, directs that the county court, on the petition of the widow, may appoint a justice and three freeholders to allot and lay off to the widow, for the use of herself and children, a year's maintenance out of the stock, crop and provisions of the deceased. The bill states that they allotted her £ 125 in money because the perishable estate had been sold; and now it is objected that the £ 125 paid by the administrator pursuant to this proceeding should not be allowed him against a creditor, because it is not stated to be an allowance out of the crop, stock and provisions. It may be an allowance out of the perishable estate, and at the same time not out of the stock, crop and provisions: as, suppose the deceased left neither the effects of other descriptions which in their nature are perishable. In support of the bill it is said, first, that this is a proceeding by a court of competent jurisdiction, and that the money having been paid in obedience to their sentence, the administrator ought to be protected. The county court have decided that all perishable articles constitute a part of this stock, and if they have judged erroneously the administrator ought not to be injured. Secondly, that the word stock embraces other articles beside cattle, hogs and sheep, and indeed all articles which our law denominates perishable; otherwise, it *150 might happen that the widow of a merchant, mechanic, lawyer, or the like, dying in a town, would have no maintenance for herself and children, when at the same time the widow of a farmer not leaving as large an estate would be provided for; and this could not be the meaning of the Legislature. I am of opinion the county court have no power to allot a maintenance out of any other part of the estate than the stock, crop and provisions, and that the stock here meant is that which is commonly denominated stock in the country, namely, animals with which the plantations of farmers are usually supplied. This construction is liable to the objection made to it, but it is not for us to legislate. The Assembly must interfere and give a greater extent to the act before I can persuade myself to make the construction asked for. The consequence of this opinion is that the county court acted without power in directing an allowance out of the perishable estate only, and the complainant should have appealed. I am further of opinion, from the authorities cited, that the court before, and instead of, pronouncing a judgment on the demurrer, may give leave to the party complainant to amend his bill, and to state that matter without which the demurrer would be allowed.
The complainant, therefore, may amend his bill, and I will suspend judgment upon the demurrer till after the amendment.
NOTE. — The law in relation to allowing the widow of an intestate a year's provisions out of his crop, stock and provisions on hand at his death has been extended so as to give the widow a year's support for herself and her family, though there may be no crop, etc., on hand. See 1 Rev. Stat., ch. 121, secs. 19 and 20.
As to the question of the amendment, see Bellot v. Morse, post, 157;Marshall v. Lovelace, 1 N.C.
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