
    ATLANTIC TRUST AND BANKING COMPANY v. MARY FOY STONE et al.
    (Filed 23 October, 1918.)
    1. Wills — Widow’s Dissent — Insolvent Estate.
    Tlie failure of a widow to dissent from her husband’s will within six months does not prevent her from claiming dower, or its equivalent, in the lands devised when it appears that the estate is insolvent.
    2. Judgments — Estoppel—Dower—Statutes—Executors and Administrators —Sales of Land to Make Assets.
    The statute, Revisal, sec. 3082, gives the right of dower to the widow of the deceased free from the payment of his debts, etc., and where she has not dissented from the will of her husband, but has been made a party to proceedings brought by the administrator,, C. T. A., to sell lands to pay debts due by the estate, she is not estopped by the ¿nal judgment therein to claim her right of dower from the insolvent estate, as such right was not at issue or properly included in the administrator’s proceedings; and this applies to the net proceeds from a sale thereunder of part of the lands as well as to an unsold remainder thereof. The conflicting decisions as to estoppel by judgment reconciled by Allen, J.
    Walker, J., dissents.
    Appeal by both, parties from In/on, J., at tlie April Term, 1918, of New IIanoveb.
    This is a petition for dower filed in a special proceeding to sell land for assets.
    B. O. Stone’ died in the county of New Hanover leaving a will in wbieb be devised and bequeathed all of his property to his wife, Mary Eoy Stone, and his children, and the Atlantic Trust Company qualified as his administrator with the will annexed. Thereafter the administrator filed his petition to sell the lands of the testator for assets and the widow of the said B. 0. Stone and his children were parties to said proceeding.
    Orders of sale Avere made in said proceeding and a part of the lands sold and the sales confirmed, and the proceeds of the sales being now in the hands of the administrator and other parts of the lands remain unsold. Nothing was said in said proceeding of the right of the widow to dower.
    When the testator first died it was believed that his estate was solvent and that there would, be a large amount after the payment of. debts, belonging to the widow and her children, and for this reason and because she was advised by a reputable attorney that her failure to dissent from the will within six months would prevent her claiming dower she made no claim thereto until January, 1917, more than a year after the petition to sell lands for assets was filed, and she then filed her petition in tbe cause demanding tbe allotment of dower. Tbe estate of tbe said B. O. Stone is insolvent.
    His Honor held, and so adjudged, that tbe widow was not entitled to dower or other interest in tbe lands tbat bad been sold or in tbe proceeds thereof, and tbat she was entitled to dower in tbe lands remaining’ unsold, and both tbe widow and tbe trust company excepted and appealed — tbe widow upon tbe ground tbat she was entitled to dower in tbe proceeds of tbe sale and tbe trust company upon the ground tbat she was not entitled to dower in tbe lands remaining unsold, claiming that she was estopped by the'orders and decrees in tbe. special proceeding to claim dower either in tbe proceeds of tbe, sale of in tbe lands remaining unsold.
    
      Rountree & Davis for trust company.
    
    
      E. K. Bryan for widow.
    
   AlleN, J.

It is conceded by counsel for tbe trust company tbat tbe failure of tbe widow to dissent from her husband’s will within six months does not prevent her from claiming dower, or its equivalent, in tbe land devised to her, and this position is fully sustained by tbe authorities. Simonton v. Houston, 78 N. C., 408; Lee v. Giles, 161 N. C., 545. Tbe trust company does, however, contend tbat tbe orders and judgments in tbe special proceedings to sell land for assets, to which tbe widow was a party, are valid, and tbat they estop her from claiming dower.

Assuming tbe orders and judgments to be regular, it cannot be questioned tbat they estop tbe widow to claim dower in tbe land which has been sold and tbe sales confirmed, and tbat they fully protect tbe purchasers, but do they go further and prevent tbe widow from claiming the value of her dower in tbe proceeds of tbe sale now in tbe bands of tbe trust company, tbe administrator, and dower in tbe lands remaining unsold? This depends upon whether tbe right to dower was adjudicated and denied in tbe special proceeding or necessarily involved therein.

We find it stated in some of tbe authorities tbat judgments estop not only as to tbe matters actually litigated, but also as to those tbat might have been litigated, and in others tbat they estop only as to tbe matters in issue and determined, but this conflict -of opinion is apparent, not real, the difference in statement of tbe legal principle being due to the difference in tbe several actions, tbe first being applicable when the second action is on tbe same claim or demand, and tbe other when it is on a different claim or demand.

Tbe distinction is stated very clearly in Cromwell v. County of Sac, 94 U. S., 351, approved in Clothing Co. v. Hay, 163 N. C., 497, as follows: “The language, therefore, which is so often used, that a judgment estopps not only as to every ground of recovery or defense actually presented in the action, but also as to every ground which might have been presented, is strictly accurate when applied to the demand or claim in controversy. Such demand or claim having passed into judgment cannot again be brought into litigation between the parties in proceedings at law upon any ground whatever. But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted upon the determination of which the finding or verdict was rendered. In all causes, therefore, where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action, not what might have been thus litigated and determined. Only upon such matters is the judgment conclusive in another action.”

Applying this principle, the conclusion follows that the widow is not ■ barred of her right to dower by the former proceedings, because this right was not put in issue or litigated, and the second proceeding, a petition for dower, is not on the. same claim or demand as the first, a petition to sell lands for assets.

The case of Latta v. Russ, 53 N. C., 111, is decided upon this principle. There a petition was filed to sell land for assets, in which the several debts were stated and decrees of sale and confirmation entered, the lands sold and the proceeds applied to the payment of debts. The administrator then died and an action was commenced for an accounting of the estate, in which a referee found that, allowing credits for vouchers, there remained in the hands of the administrator $882.22, but if the debts be allowed as stated in the decrees, there would be in hand only $252.45.

The judge of the Superior Court held that the decrees were binding on the parties as to the amount of the debts as stated in the petition, but this was reversed on appeal, the court saying, “We do not concur with his Honor in the view taken by him of the question reserved, in respect to the effect of the decree .giving the administratrix license to sell the land. That decree was an adjudication that it was necessary to sell and is conclusive in favor of the title acquired by the purchaser, but it is not conclusive of the question or debt or no debt as against or in favor of creditors, or as against or in favor of the heirs.” This excerpt was quoted and applied in Austin v. Austin, 132 N. C., 265.

If, then, the widow is not barred of her right to dower, why should not its value be ascertained and paid out of the proceeds of sale, which represent the interest of the heirs and devisees and of the widow? In other words, the trust company has now in hand as administrator, and' is seeking to apply to the payment of debts, the value of the widow’s dower, when the statute (Eevisal, sec. 3082) says, “The dower or right of dower of a widow and such lands as may be devised to her by his will, if such lands do not exceed the quantity she would be entitled to by right of dower, although she has not dissented from such will, shall not be subject to the payment of debts due from the estate of her husband during the term of her life.”

She is not asking to take anything from the creditors but for her own, which the law says “shall not be subject to the payment of debts.” We are, therefore, of opinion the widow is entitled to dower in the proceeds of sale and, by the same reasoning, in the land unsold. She must, however, be content with the ascertainment of its value as to the land sold out of the net proceeds, because, having consented to the sale and conversion, she is justly chargeable with -the ratable part of the expense.

We find no evidence as to the age of the widow, and the finding in this respect is

Eeversed.

Walker, J.,

dissenting: I am unable to concur with the majority in the opinion that Mrs. Stone is not estopped by the judgment directing a sale of the land, at least to the extent that it may be required to pay her husband’s debts. It was surely adjudicated in this proceeding by solemn judgment, which she had the clear right and opportunity to prevent if it illegally deprived her of her right of dower, that the lands should be sold to pay the debts and to the extent that it was necessary to sell for this purpose she is estopped by her failure to assert that right in due and proper time. She failed to do so, and now proposes to controvert what was decided and to claim her dower before the debts are paid. She is disputing now the very question then decided, that the land should be sold and out of the proceeds of sale that the debts be paid. Is is an estoppel by record, or res judicata, within the principle stated in Cromwell v. County of Sac, 94 U. S., 351, and assuredly is so under the case of Armfield v. Moore, 44 N. C., 157, where land was partitioned, and it turned out after judgment that one of the tenants in common owned one-third of the land in another’s right (en aider droit). This Court held that the judgment estopped as to this right, as it should have been asserted and passed upon before judgment entered. The Court said that “when a fact is decided in a court of record, neither of the parties shall be allowed to call it in question and have it tried again at any time thereafter so long as the judgment or decree stands unreversed.” And again: “In a civil suit, if a fact be agreed on by the parties, or be found by a verdict, and tbe court acts tbereon and pronounces a judgment or decree, neither party can be afterwards beard to gainsay that fact so long as tbe judgment or decree stands unreversed. An allegation of tbe discovery of important evidence after tbe admission or trial, or a suggestion that tbe party made tbe admission of record under a mistake as to bis rights, cannot be listened to without upsetting tbe whole administration of tbe law as a system and reducing it to a mere arbitrary and despotic proceeding, by which tbe court in each case, according to its view of tbe circumstances, may see fit to decide in tbe one way or the other.”

There is no suggestion of fraud or mistake in this case and no other equitable claimant. It is a proceeding at law, and in permitting Mrs. Stone to have dower in tbe land before tbe debts are fully paid we are simply, in my opinion, reversing what was decided by tbe Court when, upon consideration, it decreed a sale to pay debts. Whether she can have dower if there' is more than enough land to pay tbe debts and proper costs and expenses, or whether, upon tbe facts, she is entitled to dower at all, I need not say.

Tbe case of Latta v. Russ, 53 N. C., 111, is not an authority favoring tbe conclusion of tbe Court, but, I think, is rather tbe other way. Tbe right of tbe widow was put in issue because tbe court ordered all of tbe land to be sold if necessary to pay debts, and that, of course, included tbe dower, if any such right or estate existed. All interests were directed to be sold, as nothing was excepted. In Latta v. Russ, this Court simply held that there'was no estoppel as to tbe amount of tbe debts, for that was not in issue, and this was correct; but it did not say there was no estoppel as to all rights that were included in tbe order of sale. Tbe court decided that there were debts without it being necessary to say bow many or bow much indebtedness. It did decide that “it was necessary to sell,” and as to that part of tbe decree, said tbe court, there was an adjudication which estopj>ed. That is our case.  