WALKER, J., dissents. 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 which he devised and bequeathed all of his property to his wife, Mary Foy 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. O. Stone and his children were parties to said proceeding.
Orders of sale were 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 *Page 271 the cause demanding the allotment of dower. The estate of the said B. O. Stone is insolvent.
His Honor held, and so adjudged, that the widow was not entitled to dower or other interest in the lands that had been sold or in the proceeds thereof, and that she was entitled to dower in the lands remaining unsold, and both the widow and the trust company excepted and appealed — the widow upon the ground that she was entitled to dower in the proceeds of the sale and the trust company upon the ground that she was not entitled to dower in the lands remaining unsold, claiming that she was estopped by the orders and decrees in the special proceeding to claim dower either in the proceeds of the sale or in the lands remaining unsold. It is conceded by counsel for the trust company that the failure of the widow to dissent from her husband's will within six months does not prevent her from claiming dower, or its equivalent, in the land devised to her, and this position is fully sustained by the authorities. Simonton v. Houston,78 N.C. 408; Lee v. Giles, 161 N.C. 545. The trust company does, however, contend that the orders and judgments in the special proceedings to sell land for assets, to which the widow was a party, are valid, and that they estop her from claiming dower.
Assuming the orders and judgments to be regular, it cannot be questioned that they estop the widow to claim dower in the land which has been sold and the sales confirmed, and that they fully protect the purchasers, but do they go further and prevent the widow from claiming the value of her dower in the proceeds of the sale now in the hands of the trust company, the administrator, and dower in the lands remaining unsold? This depends upon whether the right to dower was adjudicated and denied in the special proceeding or necessarily involved therein.
We find it stated in some of the authorities that judgments estop not only as to the matters actually litigated, but also as to those that might have been litigated, and in others that they estop only as to the matters in issue and determined, but this conflict of opinion is apparent, not real, the difference in statement of the legal principle being due to the difference in the several actions, the first being applicable when the second action is on the same claim or demand, and the other when it is on a different claim or demand.
The 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 *Page 272 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 *Page 273 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 (Revisal, 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
Reversed.