Avery, Ex Parte
Corinna M. Avery, Ex Parte.
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Summary
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Opinion of the Court
Dick, J.
A widow wbo takes land as a devisee under the will of her husband, is remitted to her right of dower, when it becomes necessary to resort to the lands devised to her, for the payment of the debts of her husband:
Mitchener v. Atkinson, Phil. Eq. 23;
Gully v. Holloway, 63 N. C. 84 . She may have her interest ascertained and allotted to ber, in the manner provided by law for the assignment of dower, which shall not be subject to the payment of the debts of her husband during the term of her life. When the rights of creditors are not interfered with, the widow and heirs at law may properly join in an ex ycurte petition for the assignment of dower; but this ought not to be done when the interest of creditors will be affected. In such a proceeding the rights of creditors are supposed to be represented by the heirs, and they ought to be made defendants:
Ramsour v. Ramsour, 63 N. C. 231 . When the estate is insolvent the heirs have no personal interest in the lands, and it cannot reasonably be supposed, that they will resist an improper admeasurement of dower; and the creditors should be allowed to protect them rights abd be made parties defendant:
Mary Ann Moore, ex parte, at this term.
There was error in tbe ruling of bis Honor in tbe court below. Tbe estate of tbe testator is insolvent, and the executor has filed a petition'to subject tbe lands devised to tbe widow, to tbe payment of tbe debts of tbe testator. Tbe widow’s rights as devisee, accrued before tbe Act restoring to married women their common law right of dower; and tbe interest to which she is remitted, is one-third of tbe lands of which ber husband died seized and possessed. This petition was filed after tbe Act of 1869, chap. 93, and must be governed by its provisions.
As tbe widow is tbe regular guardian of tbe heirs, and as tbe estate is insolvent, tbe heirs must be made defendants, and be represented by a duly constituted guardian ad Utmi, *115 and the creditors of the estate must be allowed to make themselves defendants, if they so desire.
The petitioner Corinna M. Avery, is entitled to the relief which she seeks, but the petition should be amended in the court below in the particulars above indicated. Let this be certified.
Pee Curiam. Ordered accordingly.
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