The first exception is that the widow, who is an infant, did not enter her dissent by her guardian, as provided in Code, sec. 2108, but by next friend, and that she is represented in this proceeding and has appealed by such next friend. The next friend was duly appointed in the mode prescribed by Rule 16, Superior Court, 119 N.C. 963. The objection is entirely technical and if it had any force we would allow the motion to make the guardian party in this court in the interest of justice, under The Code, sec. 965. But the exception is altogether without merit, for The Code, sec. 180, expressly (33) provides that in "actions and special proceedings" (which embrace all civil remedies, Code, secs. 125, 127), whenever any infant or other person under disability shall be without guardian, then such infant, etc., "may appear by next friend." The rule necessarily contemplates the appointment of next friend in some cases, and it is only when there is no guardian that they are needed.
The second exception is that the widow was allowed, in addition to the $300 for herself, $100 each for her two stepchildren. They were children of the husband by a former marriage and were living with him at his death, but by virtue of his will they were immediately transferred to the custody of his brother, who was appointed their guardian and executor of the will. The will gives him "entire charge and control of their persons and property" and he is directed "to take them to live with him and to care for and educate them out of the profits of the estate" which is left entirely to the two children, subject only to the widow's right of dower. The executor immediately took the children home to live with him, leaving them only a few days with the widow, at her request, as her guests. In no sense were they "members of her family" at any time after the death of the husband.
Section 2118 allows $300 for the widow and "$100 in addition thereto for every member of the family besides the widow." Section 2119 restricts the "family" to children of the deceased, or of the widow, or to whom either stood in loco parentis, under fifteen years of age "who were residing with the deceased at his death." The object of this last clause was to exclude from the bounty children who might come in after *Page 24 such death to make themselves "members of the family" and evidently was not meant to embrace those who, as in the present instance, (34) cease as a consequence of the death to be members of the family and chargeable as such to the widow, for The Code, 2116, says that the year's provision is "for the support of herself and family." The $300 is for her support. The additional $100 for each child under fifteen years of age is not for her benefit, but to enable her to provide for such children, if any there be, who are members of the family.
It would be "sticking in the bark" indeed to take $200, which must come out of the property placed in the hands of the guardian for the support of these very children, and give it to the stepmother, who by the will is deprived of their custody and relieved of all expense of their support.
The counsel for the plaintiff relies upon In re Hayes, 112 N.C. 76. There, the child was living with the widow, and without controversy a member of her family up to its death. Having come within the terms and intention of the statute, it was held that its subsequent death could not deprive the mother of the $100 additional allowance provided for such child. In that case, the objection to the allowance for the child came from the administrator representing creditors, and here from the children themselves whose property is being taken. Besides, it was pointed out in the opinion in Hayes's case that the expense of medical attention and burial probably consumed the $100 allowed. Here, the custody of the children being given to the guardian by the will, and he having taken them to his home at once, neither by the letter nor the spirit of the statute is the widow entitled to an allowance for them.
So much of the judgment as allows the plaintiff $200 on account of the two children is reversed.
Cited: Stewart, In re, 140 N.C. 31.
(35)