Higdon v. . Higdon

ClaeKSON, J. The question to be decided in this case, is the plaintiff, Mary Siler Higdon, wife of W. L. Higdon, under the facts and circumstances of this ease entitled to have her inchoate right of dower assigned and laid off to her, or the cash value thereof ascertained and it be paid to her during the lifetime of her husband? We think not. C. S., 4099, is as follows: “Widows shall be endowed as at common law as in this chapter defined: Provided, if any married woman shall commit adultery, and shall not be living with her husband at his death, or shall be convicted of the felonious slaying of her husband, or being accessory before the fact to the felonious slaying of her husband, she shall thereby lose all right to dower in the lands and tenements of her husband; and any such adultery or conviction may be pleaded in bar of any action or proceeding for the recovery of dower.” C. S., 4100, in part is as follows: “Subject to the provision in the preceding section, every married woman, upon the death of her husband intestate, or in case she shall dissent from his will, shall be entitled to an estate for her life in one-third in value of all the lands, tenements and hereditaments whereof her husband was seized and possessed at any time during the coverture, in which third part shall be included the dwelling-house in which her husband usually resided, together with offices, out-houses, buildings and improvements thereunto belonging or appertaining; she shall in like manner be entitled to such an estate in *65 all legal rights of redemption and equities of redemption or other equitable estates in lands, tenements and hereditaments whereof her husband was seized in fee at any time during the coverture, subject to all valid encumbrances existing, before the coverture or made during it with her free consent lawfully appearing thereto.” ei cetera. In Gatewood v. Tomlinson, 113 N. C., 312 (313), it is said: “By the express words of the statute, her enjoyment of the possession of one-third of the land is postponed until the death of her husband. The defendants have acquired the husband’s rights. They stand in his place as to this land. She has, it is true, a right, an inchoate right or estate in the land, but its enjoyment is postponed by the law until the death of her husband, and is contingent upon her surviving him. The case of Felton v. Elliott, 66 N. C., 195, is directly in point, we think.” In Rodman v. Robinson, 134 N. C., 503 (504) : “The wife has an inchoate right of dower, but she has no present right to the property nor to its possession, nor any dominion over it, she has only a right therein contingent upon surviving her husband, which may not happen. Gatewood v. Tomlinson, 113 N. C., 312.” In Rook v. Horton, 190 N. C., 180 (183) : “On account of the nature of the wife’s interest in an inchoate right of dower, she cannot set up her claim to dower during her husband’s lifetime. Hughes v. Merritt, 67 N. C., 386; Felton v. Elliott, 66 N. C., 195; O’Kelly v. Williams, 84 N. C., 283; Gatewood v. Tomlinson, 113 N. C., 312; Rodman v. Robinson, 134 N. C., 503. This rule does not affect her rights in equity for the protection of her inchoate right, as discussed in Deans v. Pate, 114 N. C., 194; Gore v. Townsend, 105 N. C., 228, and cases therein cited.” We think the case of Griffin v. Griffin, 191 N. C., 227 (229), is decisive of this controversy. The facts are similar: “Upon the death of the husband the dower becomes consummate. During the lifetime of the husband, it is inchoate. The wife, during the lifetime of her husband, by proper conveyance, can alienate her inchoate right of dower. The wife joining with her husband in deed of conveyance and privy examination. C. S., 4102.” We have read the brief and supplemental brief of plaintiff carefully prepared, but we do not think the authorities mainly relied on, Gore v. Townsend, 105 N. C., 228, and Blower Co. v. MacKenzie, 197 N. C., 152, applicable on the facts and pleading in this action. The cases of Chemical Co. v. Walston, 187 N. C., 817, and Holt v. Lynch, 201 N. C., 404, were actions where the dower had become consummate. Nor do we think the other authorities cited by the plaintiff applicable. For the reasons given, the judgment of the court below is Affirmed.