Allen, J.
Tke appeal presents three questions for decision:
1. Were tke witnesses Ellington and Lilly competent under section 1631 of tke Revisal to testify tkat Cotton and Gorkam held tke title to tke McKetkan lots as selling agents for tke bank of wkick they were stockholders ?
2. If competent to testify, is tke administrator estopped by tke special proceedings to sell lands for assets?
3. What are tke rights of tke widow of John C. Gorkam as to interest on tke value of ker dower in tke proceeds of lands sold and as to rents ?
1. Tke interest, wkick disqualifies one from testifying under section 1631 of the Revisal, is a direct, legal or pecuniary interest in tke event of tke action
(Helsabeck v. Doub,
167 N. C., 205), and as tke bank has been paid in full, and there is no effort to make it refund any part of
the money collected, and it is in no way interested in the result of this action, there is nothing which disqualifies the witnesses Ellington and Lilly to testify.
Besides,- they were not necessarily testifying to a conversation or transaction with the deceased but as to the contents of a lost paper, and their testimony was in behalf of the administrator and not against him.
2. The decree in the petition to sell land for assets did not purport to finally adjudicate the rights of the widow as to dower in the proceeds of sale, and, on the contrary, it only gave her a dower right in the interest of John C. Gorham after payment of the amount due the bank, stated to be $2,600, and left the entire funds subject to the further order of the court.
The bank was not a party to the proceeding, and its debt was not in issue nor was it litigated, and the amount was stated simply as one of the reasons for asking for a sale of the lands, and the proceeding therefore cannot operate as an estoppel to prevent the parties from showing the true amount due to the bank.
The case of
Latta v. Russ,
53 N. C., 111, which is approved in
Austin v. Austin,
132 N. C., 265, and in
Trust Co. v. Stone,
176 N. C., 272, is in point.
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 of debt or no debt as against or in favor of creditors, or as against or in favor of the heirs.”
As the evidence was competent and as there is no estoppel, the finding thereon by his Honor is binding on us and concludes the claim of the widow to dower in the McKethan lots.
3. The claim of the widow for dower, while paramount to that of the heir, is not an estate but a right until allotment.
Spencer v. Weston,
18 N. C., 214. “It is true, indeed, that she cannot enter until assignment
made, and tbat in point of tenure, for feudal reasons, sbe bolds of tbe beir or of tbe person in wbom is tbe reversion of tbe land for dower; but, in point of title, ber estate does not arise or take effect out of tbe ownership of tbe beir or other person making tbe. assignment, but is considered a continuation of tbat of the husband; and although between tbe death of tbe husband and tbe assignment of dower a
seizin
of tbe beir or other person intervenes, yet upon tbe assignment sbe is in by relation from tbe death of tbe husband, for Tbe law adjudgeth no
mesne seizin
between tbe husband and wife.’ Perkins, s. 411, Co. Lit., 241.”
Norwood v. Marrow,
20 N. C., 584, approved in
Love v. McLure,
99 N. C., 295, and in other cases.
This being tbe nature of tbe estate, it was held at common law to be tbe duty of.the beir to allot dower to tbe widow immediately upon tbe death of tbe husband, and under Magna Cbarta sbe could remain in tbe mansion bouse forty days until tbe allotment was made, called ber right of quarantine, and, upon default on tbe part of tbe beir, sbe could sue out ber writ of dower; but, although establishing ber right, sbe could not recover damages, nor was sbe entitled to an accounting of tbe rents and profits. This remained tbe law until tbe Statute of Merton, 20 Henry III, which not only perfected tbe process for tbe assignment of tbe dower, but also stimulated tbe beir to activity by permitting tbe recovery of damages for tbe detention of tbe dower.
Tbe proceeding was at first in tbe courts of tbe common law, but tbe broader and more generous rules of equity being better adapted to adjust tbe rights between tbe beir and tbe widow, it soon became recognized as within tbe jurisdiction of courts of equity (9 R. C. L., 608
et seep),
and in this State, while a statutory remedy by proceeding before tbe clerk is afforded, tbe jurisdiction of tbe courts of equity has not been disturbed, although usually some equitable element, such as tbe necessity for an accounting, must be alleged.
Efland v. Efland,
96 N. C., 488, and cases cited.
Tbe recovery under tbe Statute of Merton, and under our statutory remedy, was “Not rents (which suppose a privity of estate) but damages for tbe detention of ber dower, in assessing which tbe value of tbe rents is tbe proper guide to tbe jury”
(Sutton v. Burrows,
6 N. C., 81), and it was held, with some hesitation, tbat
at law
tbe damages could only be recovered from demand.
(Spencer v. Weston,
18 N. C., 216, approved
Brown v. Morrisey,
126 N. C., 772.) “But it has been long settled tbat in equity a widow is entitled to an account of tbe
mesne
profits from tbe death of tbe husband up to tbe assignment of dower. Indeed this was one of tbe grounds upon which tbat court assumed jurisdiction.”
Pearson, J.,
in
Campbell v. Murphy, 55
N. C., 364.
Applying these principles, this proceeding being in equity, we are of
opinion that the widow, Mrs. Chedester, is entitled to an accounting of the rents and profits from the death of her husband up to the time of the sales of the several lots of land in which she was entitled to dower, and after the sales to the interest upon the value of her dower in the proceeds of the sales, and the case of
Campbell v. Murphy, supra,
is a direct authority upon both questions.
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Allen, J.
Tke appeal presents three questions for decision:
1. Were tke witnesses Ellington and Lilly competent under section 1631 of tke Revisal to testify tkat Cotton and Gorkam held tke title to tke McKetkan lots as selling agents for tke bank of wkick they were stockholders ?
2. If competent to testify, is tke administrator estopped by tke special proceedings to sell lands for assets?
3. What are tke rights of tke widow of John C. Gorkam as to interest on tke value of ker dower in tke proceeds of lands sold and as to rents ?
1. Tke interest, wkick disqualifies one from testifying under section 1631 of the Revisal, is a direct, legal or pecuniary interest in tke event of tke action
(Helsabeck v. Doub,
167 N. C., 205), and as tke bank has been paid in full, and there is no effort to make it refund any part of
the money collected, and it is in no way interested in the result of this action, there is nothing which disqualifies the witnesses Ellington and Lilly to testify.
Besides,- they were not necessarily testifying to a conversation or transaction with the deceased but as to the contents of a lost paper, and their testimony was in behalf of the administrator and not against him.
2. The decree in the petition to sell land for assets did not purport to finally adjudicate the rights of the widow as to dower in the proceeds of sale, and, on the contrary, it only gave her a dower right in the interest of John C. Gorham after payment of the amount due the bank, stated to be $2,600, and left the entire funds subject to the further order of the court.
The bank was not a party to the proceeding, and its debt was not in issue nor was it litigated, and the amount was stated simply as one of the reasons for asking for a sale of the lands, and the proceeding therefore cannot operate as an estoppel to prevent the parties from showing the true amount due to the bank.
The case of
Latta v. Russ,
53 N. C., 111, which is approved in
Austin v. Austin,
132 N. C., 265, and in
Trust Co. v. Stone,
176 N. C., 272, is in point.
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 of debt or no debt as against or in favor of creditors, or as against or in favor of the heirs.”
As the evidence was competent and as there is no estoppel, the finding thereon by his Honor is binding on us and concludes the claim of the widow to dower in the McKethan lots.
3. The claim of the widow for dower, while paramount to that of the heir, is not an estate but a right until allotment.
Spencer v. Weston,
18 N. C., 214. “It is true, indeed, that she cannot enter until assignment
made, and tbat in point of tenure, for feudal reasons, sbe bolds of tbe beir or of tbe person in wbom is tbe reversion of tbe land for dower; but, in point of title, ber estate does not arise or take effect out of tbe ownership of tbe beir or other person making tbe. assignment, but is considered a continuation of tbat of the husband; and although between tbe death of tbe husband and tbe assignment of dower a
seizin
of tbe beir or other person intervenes, yet upon tbe assignment sbe is in by relation from tbe death of tbe husband, for Tbe law adjudgeth no
mesne seizin
between tbe husband and wife.’ Perkins, s. 411, Co. Lit., 241.”
Norwood v. Marrow,
20 N. C., 584, approved in
Love v. McLure,
99 N. C., 295, and in other cases.
This being tbe nature of tbe estate, it was held at common law to be tbe duty of.the beir to allot dower to tbe widow immediately upon tbe death of tbe husband, and under Magna Cbarta sbe could remain in tbe mansion bouse forty days until tbe allotment was made, called ber right of quarantine, and, upon default on tbe part of tbe beir, sbe could sue out ber writ of dower; but, although establishing ber right, sbe could not recover damages, nor was sbe entitled to an accounting of tbe rents and profits. This remained tbe law until tbe Statute of Merton, 20 Henry III, which not only perfected tbe process for tbe assignment of tbe dower, but also stimulated tbe beir to activity by permitting tbe recovery of damages for tbe detention of tbe dower.
Tbe proceeding was at first in tbe courts of tbe common law, but tbe broader and more generous rules of equity being better adapted to adjust tbe rights between tbe beir and tbe widow, it soon became recognized as within tbe jurisdiction of courts of equity (9 R. C. L., 608
et seep),
and in this State, while a statutory remedy by proceeding before tbe clerk is afforded, tbe jurisdiction of tbe courts of equity has not been disturbed, although usually some equitable element, such as tbe necessity for an accounting, must be alleged.
Efland v. Efland,
96 N. C., 488, and cases cited.
Tbe recovery under tbe Statute of Merton, and under our statutory remedy, was “Not rents (which suppose a privity of estate) but damages for tbe detention of ber dower, in assessing which tbe value of tbe rents is tbe proper guide to tbe jury”
(Sutton v. Burrows,
6 N. C., 81), and it was held, with some hesitation, tbat
at law
tbe damages could only be recovered from demand.
(Spencer v. Weston,
18 N. C., 216, approved
Brown v. Morrisey,
126 N. C., 772.) “But it has been long settled tbat in equity a widow is entitled to an account of tbe
mesne
profits from tbe death of tbe husband up to tbe assignment of dower. Indeed this was one of tbe grounds upon which tbat court assumed jurisdiction.”
Pearson, J.,
in
Campbell v. Murphy, 55
N. C., 364.
Applying these principles, this proceeding being in equity, we are of
opinion that the widow, Mrs. Chedester, is entitled to an accounting of the rents and profits from the death of her husband up to the time of the sales of the several lots of land in which she was entitled to dower, and after the sales to the interest upon the value of her dower in the proceeds of the sales, and the case of
Campbell v. Murphy, supra,
is a direct authority upon both questions.
In that case Marsden Campbell, the husband, died in 1841 and his heirs rented the property until the buildings were destroyed by fire in 1843. In 1844 the land was sold under order of court for $4,000, and the court held that the widow was entitled to recover the rents from 1841, the time of the death of the husband, until 1843, this being the time when the heirs rented the property, and that she was entitled to interest upon one-third of $4,000 for which the land was. sold under order of court.
The Court says: “It must be declared to be the opinion of the Court that the plaintiff is entitled to recover from the defendant Murphy the interest upon one-third of the sum for which the lot was sold at the sale made by the clerk and master mentioned in the pleadings, to wit, $4,000, from the date of that sale up to the taking of the account, and also interest upon such third part of the purchase money to be paid annually up to the time of her death, for which the plaintiff will have lien upon the premises as security, unless she elects to take the bond of the said Murphy, with approved sureties, in lieu thereof, or the plaintiff may elect to take a decree for such part of the purchase money aforesaid absolutely, with interest from the date of the sale, as is equal to the value of her life estate in one-third part thereof, as to which there may be a reference.” And. again: “These defendants insist that they are not chargeable with the rent received by them for the house from the death of the husband up to the time it was burned.
“There was no judgment for damages in a writ of right, or a writ of entry, or a writ of dower at common law, on the ground that the
terre-tenanb,
during the time he was seized, had performed the feudal services. Damages were given against a disseizor by statute in an assize of
novel disseizin;
and damages are given to the widow by the Statute of Merton in a writ of dower
unde nihil;
but it has been long settled that in equity a widow is entitled to an account of the
mesne
profits from the death of the husband up to the assignment of dower. Indeed, this was one of the grounds upon which that court assumed jurisdiction.”
It will be observed that under this doctrine the heir is not chargeable as a trustee, but only with the rents received while dealing with the property in good faith or for the reasonable value of the premises if occupied by himself.
These principles also cover the claim of the widow in the proceeds
of the sale of the lot bought by her, except that she may, at her election, take one-third of the rents collected after the sale in lieu of interest for the period covered by the rents, and she will be chargeable with interest
on
the purchase price.
The judgment will be modified in accordance with this opinion after the parties have agreed upon the amounts allowed the widow or after the facts have been ascertained by a reference.
Modified and affirmed.