Simpson v. . Cureton

Smith, C. J., (after stating the facts). In our opinion there is error in the ruling, and this allotment and appropriation of the assets of the estate are unauthorized and void, and afford no defence to the action. In Medley v. Dunlap, 90 N. C., 527, it is declared that §2116 of The Code, does not “ embrace widows of deceased husbands, citizens of other States,” and that a subsequent removal to *115 this State does not change her relations towards the estate, since they are fixed, and her rights to share therein are determined at the intestate’s death, and by the law of his domicil. If provision is made by the law of South Carolina for the temporary relief of a decedent’s family, and there is no personal property, or not sufficient to meet the requirements, it may be, that such laws would be given effect upon the principle of comity, as in the distribution among those entitled under such laws, but this would always be in subordination to the demand of our own resident creditors, if not of all creditors. To the pursuit of the property thus wrongfully converted, no legal impediment is interposed, inasmuch as the plaintiff was no party to it, and no administration had been then taken out to entitle him to make resistance to the allowance. The principle is too vrell settled to need a sustaining reference, that none but parties and privies are bound by any judicial action. The section referred to, entitled the representative, or any creditor, legatee, or distributee, to intervene and resist the finding of the commissioners, which though ex parte, would otherwise determine the amount of the allowance, and justify its recognition and payment, but this cannot extend to a claim unfounded in toto, and wholly without warrant in law. If the petition represented the case truly, the proceeding would show its nullity upon its face, and if suppressed, and the facts necessary to give validity to the demand not inquired into, the same result must follow when they are now developed. Can the administrator be charged as with a devastavit? — and this when the appeal must be taken “within ten days from the assignment,” and no appointment was made until three months thereafter ? This section has reference to a proceeding instituted by a resident widow, who is entitled under our laws, who, on application to “a justice of the peace of the. township in which the deceased resided, or some adjoining town *116 ship,” undertakes to act, and has the necessary jurisdiction to act in the case. Plere, there is not only a non-resident having no right to allowance, but a total want of jurisdiction, as much so as if exercised in a distant county, where no notice can be implied of an action for which the law gives no warrant. Nor is there any force in the suggestion of' a trust in respect to part of .the allowance, and if there was, we do not see how it can protect the defendant from the wrongful conversion. But the allowance, when proper, is personal, the amount due her being estimated by the numbers that constitute her family of limited age, but it is nevertheless her own property, and to be used at her pleasure. So if the widow dies before the allotment is made, her right ceases, and neither her administrator nor her children succeed to it. Cox v. Brown, 5 Ired., 194; Kimball v. Deming, Ibid., 418. Nor if she die after allotment and before confirmation, does the right survive. Dunn Ex parte, 63 N. C., 137. There is error, and there must be an inquiry of damages, unless the parties consent to the valuation of the commissioners, in which event final judgment will be entered upon the findings. Otherwise such inquiry must be made, and to this end let this be certified. Error. ’ Reversed.