
    JAMES H. BELL, ADM’R, &c. vs. LEMUEL WILSON & AL.
    Before the Act of 1848, ch. 101, a widow could not dissent from her husband’s will by attorney, although she was too unwell or infirm to travel to Court, so as to dissent in person.
    The case of Hinton v. Hinton, 6 Ired. 274, cited and approved.
    Cause transmitted from the Court of Equity of Guilford County, at the Spring Term 1849.
    James Nelson died in the year 1844, having previously made and published in writing a last will and testament. By his will he devised.to his wife, the plaintiff’s intestate, a portion of his estate, both real and personal. And within the time limited by law. one D. H. Starbuck, claiming to be her counsel and attorney, on motion to the Court, caused her dissent to the will to be entered of record, she not being present nor appearing in Court. She is dead, and the plaintiff is her administrator. The bill is filed for an account of the personal estate, and claims one seventh, or a child’s part, upon the ground of her dissent to her husband’s will — and the bill charges that, at the time her dissent was made by her attorney, she was unable from bodily infirmity to attend Court to make known her dissent in person.
    
      J. T, Morehead, for the plaintiff
    No counsel for the defendants.
   Nash, J.

The bill was filed at Spring Term 1847, and at June Term 1846 the case of Hinton v. Hinton, 6 Ired. 274, was decided, which, in connection with the act of the last General Assembly, ch. 101 s. I, disposes of this case. . It is not necessary to recite the facts of the case referred to, and we presume this bill was filed in consequence of what fell from the Chief Justice in the last section of his opinion. He observes, that, in the preceding part of the opinion, the case had been considered solely as a question of law, upon the construction of the act of 1784, without adverting to the petitioner's sickness,which is stated in the case. ‘‘If it were material, it could not operate here, because it is not stated in the petition $-c.” “But,” the opinion proceeds, “if the petition had been otherwise framed, and had set out that excuse, it would have made no difference.” It is true, the case then before the Court did not call for the expression of opinion upon that point, and it may therefore, be considered, extrajudicial ; yet the individuals then composing the Court were united in it, and a majority of those, who were then upon the bench, arc still so ; and see no reason to alter their opinion. 1 am authorised to say. Judge Pearson concurs in the opinion. The Legislature so considered the law to be after that decision, for in the act referred to, passed at their recent session, they give the widow a right, where-she is sick or too infirm to travel to Court, to cause her dissent to be entered by her attorney.

Per Curiam.

Bill dismissed with costs.  