Atlantic Trust & Banking Co. v. Stone , 176 N.C. 270 ( 1918 )

AlleN, J.

It is conceded by counsel for tbe trust company tbat tbe failure of tbe widow to dissent from her husband’s will within six months does not prevent her from claiming dower, or its equivalent, in tbe land devised to her, and this position is fully sustained by tbe authorities. Simonton v. Houston, 78 N. C., 408; Lee v. Giles, 161 N. C., 545. Tbe trust company does, however, contend tbat tbe orders and judgments in tbe special proceedings to sell land for assets, to which tbe widow was a party, are valid, and tbat they estop her from claiming dower.

Assuming tbe orders and judgments to be regular, it cannot be questioned tbat they estop tbe widow to claim dower in tbe land which has been sold and tbe sales confirmed, and tbat they fully protect tbe purchasers, but do they go further and prevent tbe widow from claiming the value of her dower in tbe proceeds of tbe sale now in tbe bands of tbe trust company, tbe administrator, and dower in tbe lands remaining unsold? This depends upon whether tbe right to dower was adjudicated and denied in tbe special proceeding or necessarily involved therein.

We find it stated in some of tbe authorities tbat judgments estop not only as to tbe matters actually litigated, but also as to those tbat might have been litigated, and in others tbat they estop only as to tbe matters in issue and determined, but this conflict -of opinion is apparent, not real, the difference in statement of tbe legal principle being due to the difference in tbe several actions, tbe first being applicable when the second action is on tbe same claim or demand, and tbe other when it is on a different claim or demand.

Tbe distinction is stated very clearly in Cromwell v. County of Sac, 94 U. S., 351, approved in Clothing Co. v. Hay, 163 N. C., 497, as follows: “The language, therefore, which is so often used, that a judgment estopps not only as to every ground of recovery or defense actually presented in the action, but also as to every ground which might have been presented, is strictly accurate when applied to the demand or claim in controversy. Such demand or claim having passed into judgment cannot again be brought into litigation between the parties in proceedings at law upon any ground whatever. But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted upon the determination of which the finding or verdict was rendered. In all causes, therefore, where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action, not what might have been thus litigated and determined. Only upon such matters is the judgment conclusive in another action.”

Applying this principle, the conclusion follows that the widow is not ■ barred of her right to dower by the former proceedings, because this right was not put in issue or litigated, and the second proceeding, a petition for dower, is not on the. same claim or demand as the first, a petition to sell lands for assets.

The case of Latta v. Russ, 53 N. C., 111, is decided upon this principle. There a petition was filed to sell land for assets, in which the several debts were stated and decrees of sale and confirmation entered, the lands sold and the proceeds applied to the payment of debts. The administrator then died and an action was commenced for an accounting of the estate, in which a referee found that, allowing credits for vouchers, there remained in the hands of the administrator $882.22, but if the debts be allowed as stated in the decrees, there would be in hand only $252.45.

The judge of the Superior Court held that the decrees were binding on the parties as to the amount of the debts as stated in the petition, but this was reversed on appeal, the court saying, “We do not concur with his Honor in the view taken by him of the question reserved, in respect to the effect of the decree .giving the administratrix license to sell the land. That decree was an adjudication that it was necessary to sell and is conclusive in favor of the title acquired by the purchaser, but it is not conclusive of the question or debt or no debt as against or in favor of creditors, or as against or in favor of the heirs.” This excerpt was quoted and applied in Austin v. Austin, 132 N. C., 265.

If, then, the widow is not barred of her right to dower, why should not its value be ascertained and paid out of the proceeds of sale, which represent the interest of the heirs and devisees and of the widow? In other words, the trust company has now in hand as administrator, and' is seeking to apply to the payment of debts, the value of the widow’s dower, when the statute (Eevisal, sec. 3082) says, “The dower or right of dower of a widow and such lands as may be devised to her by his will, if such lands do not exceed the quantity she would be entitled to by right of dower, although she has not dissented from such will, shall not be subject to the payment of debts due from the estate of her husband during the term of her life.”

She is not asking to take anything from the creditors but for her own, which the law says “shall not be subject to the payment of debts.” We are, therefore, of opinion the widow is entitled to dower in the proceeds of sale and, by the same reasoning, in the land unsold. She must, however, be content with the ascertainment of its value as to the land sold out of the net proceeds, because, having consented to the sale and conversion, she is justly chargeable with -the ratable part of the expense.

We find no evidence as to the age of the widow, and the finding in this respect is

Eeversed.