{
  "id": 8656311,
  "name": "PERKINS v. BRINKLEY",
  "name_abbreviation": "Perkins v. Brinkley",
  "decision_date": "1903-09-29",
  "docket_number": "",
  "first_page": "86",
  "last_page": "88",
  "citations": [
    {
      "type": "official",
      "cite": "133 N.C. 86"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
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    "name_long": "North Carolina",
    "name": "N.C."
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    {
      "cite": "43 N. C., 157",
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      "cite": "95 N. C., 414",
      "category": "reporters:state",
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      "cite": "58 N. C., 132",
      "category": "reporters:state",
      "reporter": "N.C.",
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    {
      "cite": "18 N. C., 25",
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      "reporter": "N.C.",
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    {
      "cite": "79 N. C., 305",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8690136
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      "opinion_index": 0,
      "case_paths": [
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  "analysis": {
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  "last_updated": "2023-07-14T15:14:21.840787+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "MONTGOMERY, J., did not sit on the hearing of this case."
    ],
    "parties": [
      "PERKINS v. BRINKLEY."
    ],
    "opinions": [
      {
        "text": "Glare, C. J.\nThis is a proceeding for year\u2019s provision, begun 1st January, 1902, by the plaintiff, widow of W. M. Perkins, who died 2d January, 1901, leaving a will which was probated 11th January, 1901. The plaintiff did not dissent from the will till 11th January, 1902, being after this proceeding was instituted.\nThe allowance of year\u2019s provision is in derogation of the disposition of property by a will, when there is one, and therefore can only be granted in such case, when the will has been set aside as to the widow, by her dissent. The Code, see. 2116, allows year\u2019s support only to the \u201cwidow of an intestate, or of a testator from whose will sbe has dissented.\u201d This action, therefore, cannot be maintained, because at the time it was begun the plaintiff had not filed her dissent, and for the further reason that she had no right to dissent after the lapse of \u201csix months after the probate\u201d of the will. The Code, see. 2108. By acquiescing six months in the disposition of the property by the will, the widow loses any right to disturb it by having any part appropriated for her benefit, and the executor is authorized absolutely to proceed to execute it, free from any claim from her. In Cook v. Sexton, 79 N. C., 305, Rodman, J., enforcing forfeiture of the right by failure to comply with the further requirement that the. application for year\u2019s support shall be made \u201cwithin one year after the death of her husband,\u201d The Code, sections 2120 and 2128, says: \u201cThere must be some term of time applicable to the claim of every right within which it must be sued for. The policy of the law will not permit any demand to exist in perpetuity or indefinitely, unless legally asserted.\u201d\nEven if the right tu assert this claim had not been barred by the plaintiff\u2019s failure to dissent from her husband\u2019s will within the period allowed by law, she is barred by the following provision in a contract, entered into between her and her future husband, 25th January, 1893, in contemplation of marriage. In that contract W. M. Perkins conveyed to a trustee for the plaintiff\u2019s benefit 500 acres of land, and she agreed that she would not \u201cclaim for herself or through any other person any right, title or interest in any property now owned or which may hereafter be owned or become in possession of, by the said party of the first part, and hereby relinquishes all right of dower by virtue of said marriage to or in the estate of the said W. M. Perkins.\u201d\nIn Murphy v. Avery, 18 N. C., 25, the widow had, in her ante-nuptial contract, covenanted that she would not \u201cset up any claim to the real or personal estate,\u201d and released all \u201cinterest, claim or demand to any part of the estate, inheritance, dower lands or any other property, or to any distributive share\u201d; and it was held that this barred all claim for year\u2019s allowance. In Cauley v. Lawson, 58 N. C., 132, the ante-nuptial contract provided that the intended wife \u201cshould not claim, have power to hold or retain any part or particle of the above property any longer than the above named parties shall live together\u201d; and it was held that when she became a widow she was \u201cprecluded from dower, distributive share or year\u2019s provision in her husband\u2019s estate.\u201d This case is cited and approved in Brooks v. Austin, 95 N. C., 414.\nThe use of the words in the second clause in the contract in this ease, \u201chereby relinquishes all right of dower,\u201d only emphasizes that matter, and does not narrow the broad words already used, \u201cwill not claim any right, title or interest in any property,\u201d by restricting them to embrace only the dower right. A case almost exactly on all-fours is Hooks v. Lee, 42 N. C., 83, at p. 93, in which the opinion by Pearson, J., is affirmed on the rehearing, 43 N. C., 157, by Ruffin, G. J. In that ease it. was the husband who, by the terms of the ante-nuptial contract, was deprived of all participation in his deceased wife\u2019s estate. Sb, in every aspect, the judgment dismissing the action upon the facts agreed must be\nAffirmed.\nMONTGOMERY, J., did not sit on the hearing of this case.",
        "type": "majority",
        "author": "Glare, C. J."
      }
    ],
    "attorneys": [
      "Pittman & Kerr, for the plaintiff.",
      "Thos. N. Kill, for the defendant."
    ],
    "corrections": "",
    "head_matter": "PERKINS v. BRINKLEY.\n(Filed September 29, 1903.)\n1. WIDOW \u2014 Year\u2019s Support \u2014 Executors and Administrators \u2014 Wills\u2014 The Code, sees. 2108, 2116.\nWhere a widow fails to dissent to a will and brings an action after six months from the probate thereof for a year\u2019s allowance, such action is not maintainable.\n2. WIDOW \u2014 Year\u2019s Support \u2014 Executors and Administrators \u2014 Wills\u2014 Contracts \u2014 Ante-nuptial\u2014The Code, sec. 2116.\nA widow is barred from recovering a year\u2019s support by an ante-nuptial contract relinquishing all claim to any property of her husband.\nActioN by Mary E. Perkins against Abrami Brinkley and others, heard by Judge Fred. Moore at March Term, 1903, of the Superior Court of Halifax Cbunty. Erom a judgment for the defendant the plaintiff appealed.\nPittman & Kerr, for the plaintiff.\nThos. N. Kill, for the defendant."
  },
  "file_name": "0086-01",
  "first_page_order": 124,
  "last_page_order": 126
}