Caroon, Adm'r v. . Cooper and Others , 63 N.C. 386 ( 1869 )

Settle, J.

“ When a man shall be seized of a legal right •of redemption, or of an equity of redemption, or other equitable or trust estate in fee, his wife shall be entitled to dower therein, subject to valid incumbrances thereon, in the same manner as in legal estates of inheritance.” Rev. Code, ch. 118, sec. 6.

In the case before us, the widow’s right to dower is clear; .subject, however, to the incumbrance of the purchase money_

The learning on this subject is discussed at length in the cases of Thompson v. Thompson, 1 Jon. 430, and Campbell v. Murphy, 2 Jon. Eq. 351. In Thompson v. Thompson, Chief Justice Pearson uses this language: “ Whether the other two-thirds of the land, and the reversion of the third covered by the dower, will not be bound to exonerate the widow, by being-applied to the discharge of the debt of her husband, is a question that we will not now decide, as it was not discussed before us.”

This case presents that very question, and indeed it is the-only one which it is necessary for us to consider; for, although the plaintiff, as administrator of Louisa Caroon, a former wife-of the intestate Joseph Caroon, recovered a sum of money from the guardian of the said Louisa, and applied the same in part payment of this incumbrance, he did no more than he was; "bound to do,-and cannot now be heard to complain, or claim to be subrogated to her right.

The personal estate is the fund primarily liable to the payment of debts, and the widow has a right to have itiapplied in exoneration of her dower. If that fund be exhausted, her .right to dower is subject only to the incumbrance of the purchase money, but not to other debts. If a widow dissents: from her husband’s will, she is remitted to her right of dower,, which is held above the will, and is liable neither to debts-nor legacies.

If the widow’s right of dower is of such superior dignity as-to defeat all debts and legacies, we can see no reason why, in a case like this, her claim should be entitled to less consideration. Where a purchaser of real estate at a Master’s sale, gave bond for the purchase money, and died before the sale, was reported to, or confirmed by the Court, but the Court after the death confirmed the sale,|itlwas held, that the widow had a right to have the lots in question disincumbered of the lien, for the purchase money, and to have dower allotted therein. Klutts v. Klutts, 5 Jon. Eq. 80. The decisions on this subject in the different States are conflicting, but in North Oarolina, they all point in one direction, and are favorable to the view of exonerating the widow’s dower.

Onr conclusion is that the widow is entitled to have dower assigned out of the whole tract; and cannot be called upon, until it is ascertained that the remaining two-thirds, and the reversion in the one-third covered by her dower, is insufficient to pay off the incumbrance of the purchase money.

Let a decree be drawn accordingly.

Peb Cubiam. Decree accordingly.