#### THOMAS C. TIDDY v. G. C. GRAVES.

(Decided May 22, 1900.)

Greensboro — Tax Sales, City Taxes, State ' and County— Owrlesy — Constitution, Art. X, Section 6 — Devise by Wife■ — Erroneous Admission of Point of Law.

1. Where a feme covert dies intestate her husband is entitled to his common law right of curtesy; where she devises her land, under sec. 6, Art. X, of the Constitution, the estate of curtesy is destroyed.

2. Where a husband qualifies as executor of his wife’s will he can not claim a life estate as against her devisee.

3. Such devisee is not the owner of a reversion, but became the owner in fee of the present and all other interests in said- land.

4. The plaintiff, being such devisee was only entitled to twelve months, and not two years, in wmch to redeem said land sold for taxes,

5. Where the answer erroneously admitted that the husband was entitled to an estate by curtesy, and that the devisee was remainderman, such admission may be controverted.

*621Civil ActioN for possession of city lot in Greensboro, tried before Broion, </., at August Term, 1899, of GuiLKORi) Superior Court.

The plaintiff claimed as devisee under the will of his mother, Annie G. Reed, wife of J. W. Reed. The defendant claimed under tax titles from sheriff of Guilford and tax collector of Greensboro. The facts were, by consent, found by his Honor, who rendered judgment in favor of plaintiff. Defendant excepted and appealed. The opinion states the case.

Messrs. L. M. Scott, and A. M. Scales, for appellant.

dfessrs. Osborne, Maxwell & Keerans, for appellee.

Clark, J.

The plaintiff alleges that he is the owner in fee of the premises by virtue of his mother’s will, by which it is devised to him in fee simple. She died in 1890. On May 6/1895, the property was sold for non-payment of taxes, both by the city under the provisions of its charter, and by the sheriff, under the general statute, and purchased by the defendant at both sales. Over a year thereafter, no one having come forward to redeem the premises, deeds therefor were made to the defendant both by the sheriff and by the city. There is no impeachment of the regularity of these proceedings. The plaintiff made no offer to redeem till the 29th of April, 1897.

The plaintiff contends,however,that his step-father (Reed), who was in possession, was entitled to a life tenancy in the premises as tenant by the curtesy, and therefore that he (the plaintiff) had two years in which to redeem instead of one, and therefore was in time, and that the defendant is estopped by an admission in the answer to deny that the step-father was tenant by the curtesy. To this, it is sufficient»to say:

*6221. The two years given one who is remainderman after a life estate in which to redeem, applies only to' sales for nonpayment of State and county taxes, and therefore, if the contention that the step-father was tenant by the curtesy were valid, the defendant’s title under the deed from the city is unimpeachable.

2. It is clear that under the present Constitution there is no curtesy after the death of the wife in property which she has devised. In Walker v. Long, 109 N. C., 510, Merrimon, C. J., in a well-considered opinion, says: “But that Constitution (1868, Art. X, sec. 6) has wrought very material and far-reaching changes as to' the rights respectively of husband and wife, in respect to her property, both real and personal, and enlarged her personality and her power in respect to and control over her property. It provides that The real and personal property of any female in this State •acquired before marriage, and all property real and personal to which she may after marriage become in any ‘manner entitled, shall he and remain the sole and separate estate and property of such female, and shall not be liable for any debts, liabilities or engagements of her husband, and may he ■devised and bequeathed, and with the written assent of her husband conveyed hy her as if she were unmarried/ This provision is very broad, comprehensive and thorough in its terms, meaning and purpose, and plainly gives and secures to the wife the complete ownership and control of her property as if she were unmarried, except in the single instance of conveying it. She must convey with the assent of the husband. It clearly excludes the ownership of the husband as such, and sweeps away the common law right or estate he might at one time have had as tenant by the curtesy initiate. The strong, exclusive language of the clause above recited is that the” property ‘shall he and remain the sole and separate *623estate and property of such female/ * * * and tbe bus-band shall be, not tenant by tbe curtesy initiate, but tenant by the curtesy after the death of bis wife, m case she die intes-tateThis is necessarily so, as tbe separate estate remains tbe wife’s during coverture with unrestricted power to> devise and bequeath it. With this explicit provision in tbe Constitution, no statute and m> decision could restrict tbe wife’s power to devise and bequeath her property as fully and completely as if she bad remained unmarried.

Tbe plaintiff insists that curtesy in tbe husband of the whole of tbe wife’s realty is tbe correlative of dower in tbe wife of one-tbird of the husband’s realty, and if the Legislature can confer dower it can retain curtesy. That is true, when the feme covert dies intestate, as is pointed -out in Walher v. Long, supra, but tbe Constitution having guaranteed that a married woman shall be and remain sole owner of her property with unrestricted power to devise it, the Legislature can not restrict it. Blackstone justly says that no one has tbe natural right to dispose of any property after death. Tbe power to do so is conferred by law, and varies in different countries. In England it did not exist after the Conquest, till tbe Statute of Wills, 32 Henry VIII. Of course, as tbe Legislature confers tbe right to devise, in tbe absence of constitutional inhibition it can repeal or restrict the power of devise, and, till the Constitution of 1868, which gave a married woman the unrestricted power to devise and bequeath her property, as if unmarried, tbe limitation of such power could be made by legislation allowing curtesv as well as dower. If tbe Constitution bad gone further and provided that the property rights of a married man should remain as if be were single, and expressly conferred the unrestricted right to devise bis realty, then, certainly, when be bad devised it in fee there could be no right of dower. The Legislature could *624only prescribe for dower in realty not devised, as it can now only confer curtesy in realty not devised.

Tbe learned counsel for tbe plaintiff, however, relies strenuously upon tbe following admission in tbe answer: Paragraph 3, of the complaint, alleges: “J. W. Reed, the bus-band of tbe said Annie Q-. Reed, at her death became entitled to an estate by tbe curtesy in the said land, and be is still surviving,” and paragraph 3, of the answer, says: “Paragraph 3 (of tbe complaint) is admitted.” This is an admission of tbe allegation of fact therein contained, to-wit, that Reed was still surviving, but tbe allegation therein that tbe husband of tbe testatrix “at her death became entitled to an estate by tbe curtesy in tbe said land,” which tbe wife bad devised to tbe plaintiff, was a matter of law, and that the Court must decide upon tbe words of tbe Constitution which guarantee to the wife tbe unrestricted power to devise and bequeath her property, which is to be and remain her;s as if she were unmarried. No admission in the answer, intentional or inadvertent, could change the law arising upon a given state of facts. Here, that state of facts is set out in tbe clause of tbe will (appended to the complaint) which devises tbe realty in controversy to the plaintiff in fee', as indeed be alleges in tbe complaint. Besides, Reed having qualified as executor to tbe will can not claim a life estate in this land contrary to the will, and the plaintiff can not do it for him. Allen v. Allen, 121 N. C., 328.

His Honor below held correctly: “1. That under’ sec. 6, Art. X, of tbe Constitution, the estate by curtesy is destroyed where the feme covert dies testate, and devises tbe property, as in this case. 2. That the husband, J. W. Reed, having duly qualified as executor to said will and can not claim a life estate as against tbe plaintiff, a devisee of this lot. 3. That tbe plaintiff is not the owner of a reversion, but became *625the owner in fee of the present and all other interest in said lot by said will, and that the plaintiff was therefore only entitled to twelve months, and not two years, within which to redeem.”

But he erred in holding that, notwithstanding the above is the law, the defendant has admitted the contrary by his answer, and “can not controvert that admission.” Suppose, instead of the admission, there had been a denial, and an issue had been submitted to the jury who had found thereon that Reed was “entitled to an estate by the curtesy” notwithstanding the will, would not such finding have been held immaterial, and judgment entered non obstante veredicto? Certainly, the admission in the answer (if, indeed, it were intended to admit anything beyond the allegation of fact in clause 3, that Reed still survived), could have not greater effect than the finding of a jury.

Upon the findings of fact, judgment should be entered for the defendant. .

Reversed.