In Re the Estate of Smith

Devin, J. The right of a widow to dissent from the will of her husband is conferred upon her by statute. G. S., 30-1. She may give notice of her dissent in person, or by attorney duly authorized in writing. The dissent is thereupon filed as a record of court, and, nothing else being made to appear, the estate would be administered as to the wife as if the husband had died intestate. G. S., 30-2. While in the case at bar the Clerk of the Superior Court of Hertford County was one of the executors of the will, the act of filing a dissent was purely ministerial and we see no reason why the clerk should have been disqualified to receive and file the written dissent. However, by reason of G. S., 2-20, counsel thought proper to present the dissent in the first instance to the judge holding the courts of the district. But in any event the judge ordered the dissent filed of record in Hertford County, *171 and this was done. The fact that no previous notice was given the executors or devisees is immaterial as the statute does not require notice. The dissent having been duly filed, the moving executor sought to have it stricken out on the ground that a valid decree of divorce had dissolved the bonds of matrimony between John ~W. Smith and his wife, and that at the time of the death of the testator the appellant was not in law his widow. To this the appellant replied by moving in the court in which the divorce decree had been rendered to set aside the judgment for want of legal service and for fraud. Fowler v. Fowler, 190 N. C., 536, 130 S. E., 315; Poole v. Poole, 210 N. C., 536, 187 S. E., 777; G. S., 1-99; G. S., 1-100. This motion is apparently still pending in Martin County and undisposed of. In order to meet the charge of lack of proper service in the divorce case the executor sought and obtained an order from the Clerk of Martin Superior Court permitting an amendment nunc pro tunc to the order of publication in the case of John W. Smith v. Harriot B. Smith in order to make.it conform to the statute. In this state of the case the court below ordered the dissent expunged from the records of Hertford County. Without undertaking to determine the propriety or effect of the motions and orders in the divorce action, it is apparent on the record before us that the order striking the appellant’s dissent from the files was improvidently entered, pending the determination of the status of the divorce judgment in Martin County. If the judgment is upheld it would bar Mrs. Smith from participation in the estate of John W. Smith and her dissent would be of no avail; but if the judgment be set aside she would be entitled as in cases of intestacy, the- dissent having been filed within the time allowed by the statute. Error and remanded.