Opinion
(June Term, 1851.)
A widow is not barred of her right to her year's provision, under our statute, Rev. Stat., ch. 121, sec. 18, by her adultery, etc., as she is of her dower by the Rev. Stat., ch. 121, sec. 11.
APPEAL from Bailey, J., at PERSON Spring Term, 1851.
Petition by a widow for a year's allowance out of the personal estate of her late husband, Hardy Walters, who died intestate. It came on upon appeal in the Superior Court, and the parties agreed upon the following facts: The intestate seduced the petitioner and lived in adultery with her and then married her. After the marriage and while they were living together, the petitioner (she and her husband being white persons) had criminal conversation with a negro man, by whom she became pregnant. The husband discovered it and ordered the petitioner to leave his house. She did so accordingly, and by his permission lived in another house on his premises, where she was delivered of a mulatto child. The husband did not receive her into his family again, nor treat her as his wife further than to allow her to live in the said house and to maintain her there until his death, which happened soon after the birth of the child. It was submitted thereon to the court whether the petitioner was entitled to a year's support or not. His Honor was of opinion that she was, and so ordered, but allowed the administrator an appeal.
Norwood for plaintiff.
E. G. Reade for defendant.
The Stat., 13 ed., 1, bars a wife of dower in her husband's lands if she willingly leave her husband and go away and continue with her adulterer, unless the husband should become reconciled to her and suffer her to dwell with him. Rev. Stat., ch, 121, sec. 11. The counsel for the defendant admits this case not to be covered in terms by that statute, as it is restricted to dower, and personalty is not in its purview. But it was supposed that section 18 of our act, which gives the widow the right to a year's provision, does, by the use of the words "such widow," extend section 11 to this case and exclude from such support a widow before excluded from dower. Clearly that is not so. Sections 17 and 18 in the Revised Statutes are taken literally from the act of 1796, which is confined to making provision for the immediate support of the widow and family of an intestate out of the crop, stock, and provisions on hand. The first section of it enacted that until the next court the widow might take possession of the personal estate and use as much of those articles as might be necessary for herself and family, and the second section enacted that "such widow" might at court petition for an allotment of the crop, stock, and provisions for the further support of the widow and family for a year. It is apparent that the words "such widow" in the second section of the act of 1796 refers to the widow mentioned in the preceding section — that is, the widow of an intestate leaving those articles of personal estate. It has the same reference in section 18 of the Revised Statutes to section 17, and exactly the same sense, for it cannot be supposed that the words of those parts of the Revised Statute are to have a different meaning from that in which the same words were used in the original act of 1796. Therefore, that phrase "such widow" in section 18 has no relation to the provision in section 11 barring an adultress of dower. But if it had it would make no difference here, because, in truth, this petitioner is not excluded from dower under that section. She did not leave her husband willingly, in the sense of the act — that is, of her own accord — (172) but she went away by her husband's orders, which she was obliged to obey. Besides, she did not "go away and continue with her adulterer," whom, as far as appears, she never saw after her husband forced her to live separately from him. Whatever cause this woman may have given her husband for taking steps to have the marriage dissolved, and thereby protect his estate from her claims, it is sufficient for this case that he did no such thing, but did leave her his widow and under no bar to her claims, as such, on his property.
PER CURIAM. Affirmed.
Cited: Cook v. Sexton, 79 N.C. 307; Leonard v. Leonard, 107 N.C. 172.