Holt v. Lynch

Adams, J.

The trial court set aside the trustee’s sale and restored the parties to their former relation. The proceeding may therefore be treated as a suit to foreclose the deed of trust and to administer the intestate’s estate. In these circumstances what are the widow’s rights with respect to dower ?

In her answer Mrs. Lynch alleges that she is entitled to dower in the land of which her husband was seized during coverture and that the remaining two-thirds is of sufficient value to satisfy the deed of trust and all other claims. While the record contains an intimation that the estate of the deceased is solvent, whether in fact it is, is an undetermined question, as is also the suggestion that the intestate may have been seized of other lands.

Upon the death of the husband the widow’s right of dower was consummate. She joined him in the execution of the deed of trust and thereby subjected herself to the following provision: “The right to dower under this chapter shall pass and be effectual against any widow, or person claiming under her, upon the wife joining with her husband in the deed of conveyance and being privately examined as to her consent thereto in the manner prescribed by law.” C. S., 4102. See Griffin *406 v. Griffin, 191 N. C., 227 , and compare Blower Co. v. MacKenzie, 197 N. C., 152 .

It is possible that Mrs. Lynch’s interest in the mortgaged land may finally he exhausted. Still, “dower is a favorite of the law” and the widow has an equity of exoneration as against unsecured creditors, heirs, and the next of kin.

Campbell v. Murphy, 55 N. C., 357 ;

Creecy v. Pearce, 69 N. C., 67 .

Dower is a life estate to which every married woman is entitled upon the death of her husband intestate, or in case of her dissent from his will, being one-third in value of all the lands, tenements, and heredita-ments, legal and equitable, of which her husband was beneficially seized in law or in fact at any time during coverture, and which her issue might by possibility inherit as heir to the husband.

Chemical Co. v. Walston, 187 N. C., 817 . This estate, that is, the dower or right of dower, is not ordinarily subject to the payment of debts due from the estate of her husband during the term of the widow’s life; it is subject only to such debts of the husband as are a charge on the land. C. S., 4098;

Creecy v. Pearce, supra.

If, as contended by the appellant, the estate of her deceased husband is solvent it may not be necessary to sell the dower at all. In view of this contention and of the undetermined value of the intestate’s estate the appellant is entitled to have her dower laid off and a sale made of the remaining two-thirds of the land and, if necessary, of the reversion in the dower, in exoneration of the dower itself.

Caroon v. Cooper, 63 N. C., 386 ;

Overton v. Hinton, 123 N. C., 1 . If the sale raises funds sufficient to 'satisfy all claims against the estate the dower will not be disturbed during the life of the widow.

On the other hand, if the estate turns out to be insolvent the law must be administered according to the rule stated in Chemical Co. v. Walston, supra:

“Before the mortgagee can enforce his security against the widow’s dower, after the death of the husband, he must first take his claim out of the personal estate of the deceased (the fund primarily liable), if there be sufficient assets to pay said debt. But if the estate be insolvent, the other creditors are entitled to have the mortgagee exhaust his collateral security by sale of the two-thirds of land not embraced in the dower and the reversion in the dower land before sharing in the personal estate, and the mortgagee’s claim will be reduced by whatever amount he derives from the sale of his collateral security, and only the balance of his claim will then share ratably with the other creditors in the personal estate, and should this be not enough to pay the mortgage debt he would then be entitled to collect the residue of his claim out of the widow’s dower in the land assigned as security for his debt.”

*407 Under tbe facts disclosed by tbe record tbe widow is entitled to an actual allotment of dower, subject to tbe principles above stated. In tbis way tbe equitable protection of tbe rights of all parties can best be subserved; but before tbe allotment is made tbe beirs of tbe deceased husband should bo made parties plaintiff or defendant. O. S., 456, 451, 460.

Error.