George C. Mendenhall died in March, 1860, leaving a last will and testament in which the petitioner Delphina is named as executrix. She qualified at the term of the county court next after the death of her husband, which was May Term, 1860. At August Term, 1860, she filed her dissent from the will. The testator died possessed of a large real estate, and this petition is filed against the defendant as heir-at-law, and prays that she be allowed dower in said lands.

Upon the hearing of the petition and answer, his Honor being of opinion with petitioner gave judgment that the writ issue. From this judgment the defendant appealed.

PEARSON, C. J.

A husband dies leaving a last will and testament in which he appoints his wife sole executrix. She offers the will for probate and qualifies as executrix. The question is, Does she by doing so waive her right to dissent from the will? or Can she afterwards enter her dissent and claim dower, a year's provision and distributive (288) share, as if her husband had died intestate?

This Court is of opinion that by qualifying as executrix and taking on herself the burden of executing the will she waived her right to dissent.

Our conclusions are based on several considerations, all or any one of which, it seems to us, are sufficient to sustain it.

The act of qualifying as executrix and undertaking upon oath to carry into effect the provisions of the will is irrevocable. She cannot now renounce and discharge herself from the duties thereby assumed. This is settled law. It follows that she thereby waived any right which she before had which is inconsistent with the act done and the duties assumed.

The right to dissent is inconsistent with her act of qualifying as executrix, and the duties thereby assumed in this:

1. The appointment and qualification of one as executrix operates as an assignment in law, and vests the whole personal estate in such executor. If one executes a writing by which he appoints A B his executor, that is a will. A B thereby becomes the owner of the estate, and after paying off the debts is by the common law entitled to the surplus.

If one executes a writing by which he disposes of his property after his death without appointing an executor that is a testament. If he does both, that is, appoints an executor and also disposes of his estate or a part thereof, that is "a last will and testament." The executor becomes the owner of the estate, and after paying off the debts and legacies is entitled by the common law to the surplus. Thus it is seen that the office of executor is deemed in law of great importance; it draws to it the ownership, control, and management of the entire personal estate, and gives right (at common law) to the surplus. It is, therefore, manifestly inconsistent for a widow to claim the office and its rights and incidents under the will and at the same time to enter her dissent and claim dower, a year's provision and a distributive share as if her husband had died intestate; in other words, there is an inconsistency in claiming (289) the office under the will and at the same time claiming rights as if there was no will.

2. Upon qualifying she assumes the duty and undertakes on oath to carry into effect the several provisions of the will, and it is inconsistent afterwards to do an act which defeats or in a great degree deranges the provisions of the will and disappoints the intention of the testator therein expressed.

3. A husband, having entire confidence in his wife, appoints her the executrix of his will and thereby assigns to her the title to and the right to control and manage his whole estate; can she in good faith accept the trust and afterwards set up a claim adverse and which of necessity prevents the execution of the trust confided to and assumed by her?

4. We will not say that a wife is called on in the lifetime of her husband to make known to him that she is not satisfied with the provisions of his will, for the law confers on her the right to dissent after his death; but we do say that if she intends to dissent and wishes to avoid all imputation of a design to take advantage of the confidence reposed in her, she should renounce the right to qualify under the will; for by doing so she enables the court to appoint an administrator, with the will annexed, who will represent and take care of the interest of the estate when she sets up claim to a year's provision and when she claims to have her distributive share allotted; whereas by accepting the appointment and qualifying as executrix she gets the whole matter in her own hands and, while undertaking to represent and take care of the interests of the estate under the will, she will be "led into temptation" to take care of her own interest against it.

PER CURIAM. Reversed and petition dismissed.

Cited: Jones v. Gerock, 59 N.C. 195; Harrington v. McLean, 62 N.C. 260; Hinton v. Hinton, 68 N.C. 104; Simonton v. Houston, 78 N.C. 410; Syme v. Badger, 92 N.C. 712; Allen v. Allen, 121 N.C. 331; Norwood v. Lassiter, 132 N.C. 56; Tripp v. Nobles, 136 N.C. 104, 110; McCullers v. Cheatham, 163 N.C. 64.

Distinguished: Yorkly v. Stinson, 97 N.C. 240.

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