Welfare v. Welfare

MerrimoN, 0. J. after stating the case: The counsel for plaintiff insisted, on the argument here, that creditors of her late husband could not properly be made parties defendant in this proceeding; that they were improvidently made such, and had no right to except or object to the allotment of dower by the jury, and hence, could not appeal from the order of the Clerk overruling their exceptions. He further contended that these objections appeared upon the face of the record proper, and, therefore, the Court ought not to have given the judgment complained of. If it be granted that the plaintiff could avail herself of such objection here, in the absence of au appropriate assignment of error, Ave think such objection is not well founded. It is true that the statute regulating proceedings in applications for dower provides (The Code, § 2112) that “the heirs, devisees and other persons in possession or claiming estates in the lands, shall be parties to such proceeding” But it does not provide, in terms or by implication, that only such persons shall or may be made parties. There is neither statutory provision, nor principle, nor settled practice that forbids or prevents parties having an interest in or affected by a special proceeding to obtain dower, to be made parties to the same, as in other cases. The provisions of The Code of Civil Procedure are applicable to such a proceeding, except as otherwise provided (The Code, §278), and among these provisions, pertinent and applicable, is that (section 184) which prescribes that “any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff” etc. [275] Now, obviously, the creditor of a deceased debtor, whose personal estate is insufficient to pay his debts, has a substantial interest that justly prompts him to see that excessive dower is not allotted to the widow of such debtor It may be that the heir’s interest in the land is trifling, in fact, worth nothing, and he may be hostile to the creditor, and collude with the widow asking dower. Hence the law gives the creditor opportunity to be heard in opposition to excessive dower in the proceeding whereby the widow seeks to obtain dower, and this without regard to any other possible remedy he may have. It might be, that if a creditor could not thus have remedy, he would be remediless. He clearly has such interest as entitles him to be made a party defendant to the end he may justly prevent the allotment of excessive dower. Moore, ex parte, 64 N. C., 90; Lowery v. Lowery, ibid., 110; Avery, ex parte, ibid., 113; Carney v. Whitehurst, ibid., 426. s It was, therefore, competent for the Court to make the defendant creditors parties in a proper case, and in the absence of exception or objection, that they were not creditors whose interest might be affected adversely by excessive allotment of dower, it must be taken that they were properly made parties. No statute prescribes how objections to an excessive allotment of dower shall be made, but this is settled by rules of practice. It is said in Stiner v. Cawthorn, 4 Dev. & Bat., 501, that “the Act of 1784 has not indicated the remedy for an illegal or excessive allotment of dower, but the usages of our Courts have defined it, to-wit: “That where the report of a jury is returned, exceptions may be thereunto taken by any one aggrieved, and the Court will set aside the allotment and order a new allotment, if sufficient cause be shown.” As we have seen, a creditor may be one aggrieved. Moore, ex parte, supra. The Court below seems to have observed the settled rules of practice. It was certainly competent for it to hear perti [276] nent affidavits with a view to ascertain such facts as would enable it intelligently and faii’ly to determine that the allotment of dower by the jury was or was not excessive. It might hear any competent evidence for such purpose, and, ordinarily, it must be the sole judge of whether or not a re-allotment shall be made. The Court also found the fact that the allotment was excessive, and the mere fact that a preceding Judge had so found, could not render the findings of fact by a subsequent one void or at all affect its merits. It appears that both juries allotted the same property, and it may be that both Judges found the like facts from substantially the same evidence. This they might do. If the allotment was excessive, as the Court found the fact to be so, then, as a matter of law, the Court certainly had authority, and it was its duty, to direct another jury to make a re-allotment. The Court below, in the exercise of a sound discretion, must be the judge of how often, for just cause, it will direct a re-allotment. An appeal lies from the order of the Clerk to the Judge. It is so expressly provided by the statute (The Code, § 252), which applies in special proceedings as well as in civil actions generally. Brittain v. Mull, 91 N. C., 498. Affirmed.