#### MARY SILER HIGDON v. W. L. HIGDON, BANK OF FRANKLIN, BANK OF WEST JEFFERSON, A. B. SLAGLE, Sheriff of MACON COUNTY, R. S. JONES, Trustee for GEORGE R. McPHERSON and GEORGE R. McPHERSON.

(Filed 28 February, 1934.)

Dower B a — Under facts of this case wife held not entitled to have value of inchoate dower computed and paid to her in cash.

Plaintiff, alleging that she had been abandoned by her husband, brought suit to enjoin the sale of her husband’s lands under a deed of trust and executions on judgments against him until her rights to inchoate dower in the lands could be determined, and to have the present value of her inchoate dower in the lands of her living husband fixed and paid to her in cash. Held, although inchoate dower has a present value, the enjoyment of the estate is expressly postponed by. statute until after the husband’s death, and is contingent upon the wife surviving her husband, and other provisos of the statute, C. S., 4099, 4100, and defendant’s demurrer to the complaint was properly sustained, Blower Oo. v. MacKemie, 197 N. C., 162, not being applicable to the facts of the present case.

Appeal by plaintiff from Alley, J., at November Term, 1933, of MacoN.

Affirmed.

For the determination of this action, the only allegation in plaintiff’s complaint necessary to be considered is as follows: “That the plaintiff is a citizen and resident of Macon County, North Carolina, where she has resided continuously for the last past nine years and more.

That the defendant, W. L. Higdon, is also a citizen and resident of Macon County, North Carolina, but is at this time temporarily residing in the city of Sacramento, in the State of California.

That the plaintiff and defendant, W. L. Higdon, were married to each other on 28 February, 1928, in the city of Atlanta, Fulton County, Georgia, and thereafter lived together as husband and wife uj) until about 17 June, 1933, at which time the said W. L. Higdon, without any just cause or excuse, or-any fault on the part of the plaintiff, wrongfully and unlawfully abandoned the plaintiff, and since said time the *63said W. L. Higdon bas resided in tbe city of Sacramento, in tbe State of California.

That tbe plaintiff is advised and believes that sbe occupies tbe status of a preferred creditor of ber husband, W. L. Higdon, on account of ber inchoate right of dower in tbe real estate owned by him, as aforesaid, and of tbe value of $102,000, as aforesaid, and that, as sbe is advised and believes, tbe present value of ber contingent right of dower during tbe life of ber said husband can be computed and that tbe correct rule or computation is to ascertain tbe present value of an annuity for ber life, according to tbe interest in tbe third of tbe proceeds of the estate to which ber contingent right of dower attaches, and then to deduct from tbe present value of tbe annuity for ber life, tbe value of a similar annuity, depending upon tbe joint lives of herself and ber husband, and that tbe difference between these two sums will be the present value of ber contingent right of dower; and in this connection tbe plaintiff avers that tbe annual net income from ber husband’s said real estate, and in which sbe is entitled to share, as aforesaid, is tbe sum of $7,000.

Wherefore, plaintiff prays tbe court: (1) That tbe sale of tbe property of W. L. Higdon under tbe aforesaid deed in trust by R. S. Jones, trustee for George R. McPherson, be restrained until tbe further order of tbe court. (2) That tbe defendants, tbe Bank of Franklin and tbe Bank of West Jefferson, and A. B. Slagle, sheriff of Macon County, be restrained from selling, or attempting to sell any of tbe lands of tbe defendant, W. L. Higdon, in satisfaction of tbe judgments obtained by tbe defendant banks against W. L. Higdon until tbe further orders of this court. (3) That tbe plaintiff’s inchoate right of dower in tbe lands of tbe said W. L. Higdon be protected and preserved by a proper order of tbe court. (4) For tbe costs of this action to be taxed by tbe clerk, and for such other and further relief as tbe plaintiff may be entitled to in tbe premises.”

Tbe defendants demurred. Tbe demurrer and judgment of tbe court below is as follows: “This cause coming on to be beard before tbe undersigned judge at tbe November Term, 1933, of tbe Superior Court of Macon County, upon tbe demurrer ore terms of tbe defendants entered therein, for that: (1) It appears upon tbe face of tbe complaint from tbe allegations and prayer therein contained that tbe relief sought by tbe plaintiff’s inchoate right of dower in tbe lands of ber husband, who is now living, and tbe fixing of tbe present value thereof, to tbe end that tbe plaintiff may receive tbe same in cash. (2) It appears from the face of. tbe complaint that tbe property of tbe defendant which tbe Bank of Franklin is undertaking to advertise and sell, is tbe property 'of tbe defendant, W. L. Higdon, and that tbe sale of said property would *64not in any way involve or affect tlie rights of the plaintiff in said property if the plaintiff’s inchoate right of dower therein should at some later date become consummate. (3) For that it appears upon the face of the complaint that the action was instituted originally in the Superior Court of Macon County, whereas, if maintainable at all, it should have been brought as a special proceeding before the clerk of Superior Court of Macon County.

Whereupon, upon due consideration of the record and the arguments of counsel, the court being of opinion that the action cannot be maintained by the plaintiff in this court at this time, for the objects and purposes sought in said complaint:

It is, therefore, considered and adjudged by the court that the demurrer ore Lenus be and the same .is hereby sustained and allowed.”

The plaintiff excepted, assigned error, and appealed to the Supreme Court.

17. L. McCoy for plaintiff.

Jones & Ward and Jones & Jones for defendant, the Bank of Franklin.

T. B. Higdon, Atlanta, Ga., B. J. Sisk, Geo. B. Patton and J. II. Stockton for defendant, W. L. Higdon.

ClaeKSON, J.

The question to be decided in this case, is the plaintiff, Mary Siler Higdon, wife of W. L. Higdon, under the facts and circumstances of this ease entitled to have her inchoate right of dower assigned and laid off to her, or the cash value thereof ascertained and it be paid to her during the lifetime of her husband? We think not.

C. S., 4099, is as follows: “Widows shall be endowed as at common law as in this chapter defined: Provided, if any married woman shall commit adultery, and shall not be living with her husband at his death, or shall be convicted of the felonious slaying of her husband, or being accessory before the fact to the felonious slaying of her husband, she shall thereby lose all right to dower in the lands and tenements of her husband; and any such adultery or conviction may be pleaded in bar of any action or proceeding for the recovery of dower.”

C. S., 4100, in part is as follows: “Subject to the provision in the preceding section, every married woman, upon the death of her husband intestate, or in case she shall dissent from his will, shall be entitled to an estate for her life in one-third in value of all the lands, tenements and hereditaments whereof her husband was seized and possessed at any time during the coverture, in which third part shall be included the dwelling-house in which her husband usually resided, together with offices, out-houses, buildings and improvements thereunto belonging or appertaining; she shall in like manner be entitled to such an estate in *65all legal rights of redemption and equities of redemption or other equitable estates in lands, tenements and hereditaments whereof her husband was seized in fee at any time during the coverture, subject to all valid encumbrances existing, before the coverture or made during it with her free consent lawfully appearing thereto.” ei cetera.

In Gatewood v. Tomlinson, 113 N. C., 312 (313), it is said: “By the express words of the statute, her enjoyment of the possession of one-third of the land is postponed until the death of her husband. The defendants have acquired the husband’s rights. They stand in his place as to this land. She has, it is true, a right, an inchoate right or estate in the land, but its enjoyment is postponed by the law until the death of her husband, and is contingent upon her surviving him. The case of Felton v. Elliott, 66 N. C., 195, is directly in point, we think.”

In Rodman v. Robinson, 134 N. C., 503 (504) : “The wife has an inchoate right of dower, but she has no present right to the property nor to its possession, nor any dominion over it, she has only a right therein contingent upon surviving her husband, which may not happen. Gatewood v. Tomlinson, 113 N. C., 312.”

In Rook v. Horton, 190 N. C., 180 (183) : “On account of the nature of the wife’s interest in an inchoate right of dower, she cannot set up her claim to dower during her husband’s lifetime. Hughes v. Merritt, 67 N. C., 386; Felton v. Elliott, 66 N. C., 195; O’Kelly v. Williams, 84 N. C., 283; Gatewood v. Tomlinson, 113 N. C., 312; Rodman v. Robinson, 134 N. C., 503. This rule does not affect her rights in equity for the protection of her inchoate right, as discussed in Deans v. Pate, 114 N. C., 194; Gore v. Townsend, 105 N. C., 228, and cases therein cited.”

We think the case of Griffin v. Griffin, 191 N. C., 227 (229), is decisive of this controversy. The facts are similar: “Upon the death of the husband the dower becomes consummate. During the lifetime of the husband, it is inchoate. The wife, during the lifetime of her husband, by proper conveyance, can alienate her inchoate right of dower. The wife joining with her husband in deed of conveyance and privy examination. C. S., 4102.”

We have read the brief and supplemental brief of plaintiff carefully prepared, but we do not think the authorities mainly relied on, Gore v. Townsend, 105 N. C., 228, and Blower Co. v. MacKenzie, 197 N. C., 152, applicable on the facts and pleading in this action. The cases of Chemical Co. v. Walston, 187 N. C., 817, and Holt v. Lynch, 201 N. C., 404, were actions where the dower had become consummate. Nor do we think the other authorities cited by the plaintiff applicable. For the reasons given, the judgment of the court below is

Affirmed.