#### HYBART v. JONES.

(Filed April 22, 1902.)

DOWER — Waste—Heirs—Counter-claim—The Code, Sec. 689.

In a suit by a widow against tbe beirs to recover payments allotted to ber as dower and made a charge on tbe land, tbe beirs can not set up by way of counter-claim damages for waste committed by tbe widow, but must proceed under tbe Statute.

ActioN by Delia J. Hybart against Eliza A. Jones and others,' beard by Judge W. S. O’B. Robinson, at February Term, 1902, of tbe Superior Court of Cumberland County. From a judgment for tbe defendants, tbe plaintiff appealed.

Sinclair & Bolton, and T. H. Sutton, for tbe plaintiff.

J. W. Hinsdale & Son, for tbe defendants.

MONTGOMERY, J.

Tbe dower of tbe plaintiff was allotted to ber in 1889, in proceedings ex parte by ber and tbe beirs-at-law of ber deceased busband. Tbe commissioners, in their report, allotted to ber a small farm of ber busband, and, to malee up ber full dower, further charged upon tbe balance of tbe real estate of ber busband tbe payment of all tbe taxes to become due on tbe entire estate and tbe payment to ber of five dollars per month, to be a charge on certain store-houses belonging to tbe estate. Tbe defendants, tbe heirs-ablaw, are now non-residents of the State of North Carolina.

Tbe monthly payments were made regularly for some time, but for nearly two years past nothing has been paid on that score, and this action was brought to subject tbe realty in tbe possession of the heirs to tbe payment of the amount due. There was a prayer for a receiver to take possession of the property, for tbe purpose of -renting it and applying tbe *228rents to tbe amount due, and also to> those amounts which may become due in the future during the life of the plaintiff.

In their answer, the defendants set up a counter-claim, in the nature of damages for alleged waste committed by the plaintiff on the premises allotted her as dower. There was a demurrer on the part of the plaintiff, which being overruled by the Court the plaintiff appealed.

We think the demurrer should have been sustained. The manner of the allotment of dower was unusual, but, as all the parties interested were satisfied with it, we will not disturb it. The amount charged monthly on the storehouses to make up the deficiency in dower is in reality as much a part of the estate in dower as the land which she was put in possession of; and we think the heirs-at-law, who are in possession of the storehouses upon which the monthly payments are charged, should promptly pay the same under the provisions of the allotment. If waste has been committed by the plaintiff, they have their remedy under Section 629 of The Code. Sherrill v. Conner, 107 N. C., 543.

The widow’s right to her dower in the manner and form as it was allotted should not be contested under the plea that she has committed waste on a part of the dower premises.

We are not deciding this case on the question whether or not the counter-claim, as set up in the answer, is strictly a counter-claim under The Code, but upon the ground that a sound public policy will not permit any claim of the heir-at-law for waste against a widow to be made, except in proceedings in an action instituted for that purpose under the statute. Code, Sec. 629. . Judgment should have been rendered for the plaintiff according to the prayer of the complaint. Probably it would be best ,to provide, in the judgment, that unless the amount due to the plaintiff should be paid within a reasonable time, to be determined by the Court, then that the receiver should proceed -under the judgment. This is merely a suggestion to the Court below, to be followed or not *229as may appear best under facts that may be brought to the attention of his Honor who may preside.

Error.