Harrington v. Harrington.

HoKE, J., after stating the facts: Our statute on the subject, Eevisal, sec. 3084, enacts that a widow, entitled thereto, shall be endowed of one-third in value of all the lands, tene- *520 merits and hereditaments whereof her husband was seized at any time during coverture; in which third part shall be included the dwelling-house in which her husband last usually resided, together with offices, outhouses, etc. Another clause of this section provides that the jury summoned for the purpose of assigning dower to a widow “shall not be restricted to assign, the same in every separate and' distinct tract of land, but may allow her dower in one or more tracts, having a due regard to the interests of the heirs as well as the rights of the widow.” Where a decedent dies, seized and possessed of lands in counties other than that in which the petition is filed, sec. 3089 provides a method by which the jury in such county, charged with the duty of assigning dower, shall be informed of the value of the lands lying in the other counties, to the end that this value may be considered in determining the dower to be allotted. In construing this statute our Court has held: 1. That the entire dower must be allotted in a single 'action. 2. That the dwelling-house in which the husband last usually resided, if the right of dower attaches thereto, or so much of it as the dower interest will cover, shall be included in the allotment. 3. That subject to this direction as to the dwelling-house, the jury, according to the express terms of the statute, is not required to allot the dower in each and every tract, but may assign the entire dower in one or more of the tracts, having a due regard to the rights and-interests of the parties concerned. Askew v. Bynum, 81 N. C., 350; Howell v. Parker, 136 N. C., 373. While the question does not seem to have been directly presented in this State, the better considered authorities elsewhere have established the principle that where the husband has sold and conveyed portions of his land for valuable considera- *521 tiou without tbe joinder of the wife, but retained lands, which descend to his heirs, of a kind and quantity which permit that dower be assigned out of the lands descended and according to the provisions of the statute, .the purchasers have a right to require that dower be allotted out of lands descended, and the lands which they have purchased and paid for .be relieved of the widow’s claim. This is so held in Wood v. Keys, 6 Paige (N. Y.), 478, and Lawson v. Morton, 6 Dana (Ky.), 471. And these cases' are cited for law in Scribner on Dower, vol. 2, 597. In Howell v. Parker, supra, decided intimation is given that, under certain circumstances, equity would require that the widow’s dower should be assigned in lands descended and the purchaser for value be protected. In the case before us, the widow’s dower can be so assigned, and every requirement of the statute be complied with. The husband died seized and possessed of the dwelling-house in which he last usually resided, and this with the other lands retained are ample in quantity to allot to the widow one-third in value as the statute provides, estimating for this purpose the land conveyed as a part, of the estate. There are decisions in other jurisdictions which may seem to uphold a contrary view; but they will be found, no doubt, to rest on the position that after the death of the husband, the widow’s claim for dower is an estate which attaches to each and every separate parcel of land, and to be so allotted, and where no statute exists, as it does with us, permitting that dower be assigned in all or any one of the tracts as may be deemed best for the interest of the parties. We are of opinion, and so hold, that, on the facts stated, the judgment of the Court below awarding the dower in the lands descended, is in accord with the statute, and with sound principles of equity, and the same is affirmed. Affirmed.