Drewry v. Raleigh Savings Bank & Trust Co.

BeowN, J. Tbe record discloses that tbe petitioner is tbe widow of John O. Drewry, who died on 2 October, 1916, leaving a will, from which she dissented. This special proceeding was instituted for tbe allotment of a year’s support. Tbe judgment by tbe clerk, as authorized in section 3107, Revisal, was entered. The order to tbe sheriff was issued to summon a justice of tbe peace and two indifferent persons qualified as jurors. They beard testimony, examined witnesses, informed themselves as to tbe net annual income of tbe deceased for tbe three years prior to bis death, and tbe condition of bis estate, .and made their report to tbe clerk of tbe court. They allowed petitioner certain articles of household furniture, found tbe net annual income of tbe deceased for three years prior to bis death to have been in excess of $38,500; that bis estate was large and in good condition, and allowed tbe petitioner $15,000 for tbe support of herself and *666 family. Exceptions were filed by tbe several defendants. Tbe clerk beard tbe exceptions, examined witnesses, confirmed tbe report as to tbe valuation of tbe furniture allotted to petitioner, and reduced tbe allotment to ber to $8,000. Tbe petitioner and defendants excepted and appealed. Judge Devin, bolding tbe courts of tbe district, beard testimony, examined witnesses as to tbe net and annual income and tbe condition of tbe estate of deceased and as to wbat would be a reasonable amount to allow the petitioner for tbe support of herself and family. Tbe evidence is set out in tbe record. His Honor found tbe facts and rendered tbe judgment set out in tbe record, allowing tbe petitioner $12,500, to be reduced by tbe value of tbe furniture allotted. To this judgment tbe guardian ad litem of John C. Drewry, Jr., and tbe guardian of James G. Hanes, Jr., appealed. The contentions of tbe defendants, appellants, are as follows: 1. This court has jurisdiction to review all tbe evidence in this case for tbe purpose of deciding whether tbe .allotment of $12,500 is proper under tbe provisions of tbe statute, Revisal, sections 3103 and 3110. 2. If issues-of fact were raised by tbe appeal from tbe clerk’s order, it was tbe duty of the clerk to transfer tbe ease to tbe civil-issue docket for trial by jury, and tbe court was without jurisdiction to find tbe facts and render judgment. 3. Upon review of all tbe evidence, it will appear that tbe allotment of $12,500 is excessive. 4. Tbe findings of fact by tbe court are not supported by sufficient evidence. 5. If tbe .amount to be allotted is a matter of discretion, there has been an abuse of discretion in this case. 6. Tbe court should have ordered an apportionment of the amount between tbe widow and ber minor son. There is an abundance of evidence to support tbe findings of tbe judge, and that being so, this court will not review tbe facts. Cox v. Jones, 110 N. C., 309; Creed v. Marshall, 160 N. C., 394; Travers v. Deaton, 107 N. C., 500. Tbe contention that tbe allotment of a year’s provision is an equitable proceeding, and that, therefore, this court will review tbe facts, cannot be sustained. There are very few actions or proceedings, even of an equitable character, in which we undertake to review tbe findings of fact where supported by evidence. We sometimes do in preliminary injunctions, but in those matters, if the judge below has found tbe facts, we adopt them if suppoifed by evidence. *667 But this is not now a proceeding of an equitable character. It is purely statutory and regulated and given by the statute law, just as assignments of dower and the setting apart of a homestead and personal exemption. When a widow dissents from the will of her husband (3080, Eevisal) she “shall have the same rights and estates in the real and personal property of her husband as if he. had“died intestate.” The estate referred to is dower; the rights referred to are the year’s .support and child’s part as a distributee. These are all legal rights, enforcible at law, and not cognizable in .a court of equity. It may be that occasion may require that to enforce her legal right she may be required to invoke the powers of equity; but her rights are simply rights at law. Her special proceeding to have her dower allotted is at law. Efland v. Efland, 96 N. C., 488; Tate v. Powe, 64 N. C., 644; Parton v. Allison, 109 N. C., 674; ibid., Ill N. C., 429. The defendants were not entitled to a jury trial upon the appeal to the judge. In the first place, the statute does not provide for a jury trial. Strictly speaking, in this kind of a proceeding issues of fact are not raised by pleadings. The right to a year’s support being admitted, the amount to be allowed is only a question of fact, and must be determined in the manner directed by the statute. The procedure in this proceeding is identical with that approved in Mann v. Mann, 91 S. E., 355. In the second place, if defendants were entitled to a jury trial, they waived it by making no demand for it and by submitting no issues. A party to an action cannot be heard to demand a jury trial after the facts are found against him, when he has offered evidence and submitted to a trial by the court without objection. There is abundant evidence to support the findings, and the amount allowed by the judge does not show any gross abuse of discretion. The estate of the deceased is very large, the annual income $38,000, and the amount allowed is well within the statutory limit. The total allowance was very properly made to' the widow and none to the minor child. The allowance is for her benefit and support, as she is charged with the care and support of her child. The fact that there are children is only a reason for increasing the allowance mad^to the widow. In re Hayes, 112 N. C., 76. In Kimball v. Deming, 27 N. C., 418, this Court said: “Until the case of Cox v. Brown, 5 Ired., 194 (27 N. C., 194), was brought up at the last term, we had never heard that anybody supposed that if a widow died her creditors or children were entitled to claim out of the husband’s estate as much as would have supported her for a year if she had lived. It seems to us to be a complete perversion of the act which makes provision *668 for tbe temporary maintenance of the widow and her family. . . . All this shows that the purpose was to make provision for the presssing wants of the widow personally and to enable her at that mournful juncture to keep her family about her for a short season, and prevent the necessity of scattering her children abroad until time were allowed for selecting suitable situations for them.” Affirmed. The costs of this Court will be paid by the Raleigh Savings Bank and Trust Company, executor of the estate of John C. Drewry, out of the funds in its hands belonging to J ohn C. Drewry, junior, and J ames G Ilanes, junior.