There was judgment for the defendants, from which plaintiff appealed. The facts appear in the opinion.
SMITH, C. J.
This special proceeding, instituted in the Superior Court before the clerk, on 11 July, 1887, by the plaintiff, the widow of A. D. Owens, who died by an act of violence intestate, in the month of September in the year preceding, against the defendants, his infant children and heirs at law, is to have her dower assigned in the lot whereon he resided. The defendants, not disputing the general allegations contained in the petition, deny the plaintiff's right to dower in the lot, for that, at Fall Term, 1886, of the Superior Court of Beaufort, on the trial, she had been convicted of being an accessory before the fact to the murder of the deceased, and was sentenced to imprisonment for life in the State prison, wherein in pursuance of said judgment (241) she is still confined. The plaintiff entered a demurrer to the answer which, upon hearing before the clerk, was adjudged to be insufficient, and the application denied.
Upon her appeal to the judge he affirmed the judgment of the clerk, overruling the demurrer, and from this an appeal is taken to this Court, in which is brought up the question whether the petitioner, by her criminal act in participating in the murder of her husband, has thereby deprived herself of the right to have dower allotted to her under the law in the estate of which he was seized and which has descended to his heirs at law.
The natural feeling inspired by her proved co-operation in the unnatural and wicked act of taking her husband's life, and thus availing herself of the generous provision of the law that secures her surviving a home for life, is repugnant to a claim preferred under such circumstances of perfidy to the marital relations. In the absence of authority, the well instructed and able judge who tried the cause ruled against the allowance of dower, as it would in fact be "to reward crime" by conferring benefits that result from and are procured by its commission.
We feel ourselves unable to concur in this conclusion for the reason that while the law gives the dower and makes it paramount to the claims of creditors even, there is no provision for its forfeiture for crime, however heinous it may be and even when the husband is its victim. The only statutory provision which, for criminal misbehavior, bars an action prosecuted for the recovery of dower is where she shall commit adultery, and shall not be living with her husband at his death, "The Code, section 2102, extended to a distributive share in the personal estate, and a right to administer," section 1481. The statute is more stringent than that before existing and found in the Rev. Code, ch. 118, sec. 11, which bars the claim to dower to cases in which the wife willingly leaves her husband and continues to live with her adulterer, (242) unless a reconciliation takes place and the husband again suffers her to dwell with him.
As there is no other act of the wife which by statute known to us works a forfeiture, we do not see how any legal obstacle can be in the way of her seeking to get what the law in unqualified terms gives her. She may not be able to enjoy in person the possession of the lot — and so it might be of other property — yet the profits of the limited estate, the fruits of the occupancy, are not the less hers and at her disposal. She may obtain a pardon and release from confinement and then could enter into possession, but possession in fact and the right to possess or lease or sell the estate are distinct and separate things.
Is the right of the wife to share in the personal estate as a distributee lost or affected by the fact that the intestate died at her hands or through her procurement? Does the child who slays a parent thereby lose his right to participate with his brothers and sisters in the distribution of the personal or to take his part of the descended real estate? Or, reversing the matter, does the husband who kills his wife impair his right, under the statute of distributions, to succeed to the ownership of her personal property left after payment of debts? Or, in general terms, does any one, as a consequence of an unlawful taking of human life, become thereby disabled to take a part of the estate left by the deceased which the law gives him and gives him subject to no such condition?
We are unable to find any sufficient legal ground for denying to the petitioner the relief which she demands, and it belongs to the lawmaking power alone to prescribe additional grounds of forfeiture of the right which the law itself gives to a surviving wife.
Forfeitures of property for crime are unknown to our law, nor (243) does it intercept for such cause the transmission of an intestate's property to heirs and distributees, nor can we recognize any such operating principle. We have searched in vain for an authority or ruling on the question and find no adjudged case; the fact that none such is met with affords a strong presumption against the proposition. We must, therefore, determine the appeal "upon the reason" of the thing.
There is error, and the judgment must be reversed, to the end that the cause proceed to a final determination in accordance with law.
Error. Reversed.
Cited: Scarborough v. Ins. Co., 171 N.C. 355; Bryant v. Bryant, 193 N.C. 376.