The exceptions taken by the defendant are unfounded. It is manifest from the case agreed that all the lands of the testator must be sold to raise assets sufficient to satisfy the debts, except such as are covered by the dower and homestead. The dower has been assigned and the main question is, which of the lands are to be allotted to the defendant for her homestead.
This question has been settled by the decision of this court in the case of Watts v. Leggett, 66 N.C. 197, where PEARSON, C. J. in delivering the opinion of the court said: "If the homestead had been laid off in the life time of the husband, at his death the dower of the wife would have been assigned so as to include the dwelling house in which the husband had usually resided and buildings used therewith. Thus the dower would be assigned so as to include the homestead or a part thereof, and the right of dower having attached at the time of marriage, would have been paramount, and the right of the children to enjoy the homestead during the minority of any one of them must have been taken subject to this paramount right of dower, the effect being to postpone the enjoyment of the children as to so much of the homestead as is covered by the dower, until the death of the widow, leaving them of course to the present enjoyment of such part of the homestead and *Page 450 land appertaining thereto, as is not covered by the dower." And (584) he further held that the proper construction of the act of 1868-69, ch. 137, was to give the widow and children only the same rights of homestead, as if the husband and father had not neglected to have his homestead laid off in his life time. This decision was cited and approved in the case of McAfee v. Bettis, 72 N.C. 28.
As the homestead under the constitution must embrace the dwelling, if there be one, where the husband or father had his last place of residence, with the buildings used therewith, the right to select the homestead can have no application except in such cases as where the husband or father owned several tracts of land, but had no residence on either, or where the dwelling and appurtenances exceeded in value one thousand dollars.
The right claimed by the defendant to have her homestead set apart to her in fee simple under the act of 1877, is not allowable under the facts of the case. The debts contracted prior to the 1st of May, 1877, amounted to $4,842.65, and after the distribution of the personal assets pro rata among all the creditors, there still remained due upon the debts contracted previous to that date 66 1/4 per cent., to the payment of which the fee simple estate in all the lands of the testator were liable, subject to the dower and the right of homestead as it existed prior to that act. Gamble v.Watterson, 83 N.C. 573.
There is no error. Let this opinion be certified to the superior court of Northampton that further proceedings in the case may be had according to law.
No error. Affirmed.
Cited: Graves v. Hines, 108 N.C. 265; Williams v. Whitaker, 110 N.C. 394;Stern v. Lee, 115 N.C. 435; Morrisett v. Ferebee, 120 N.C. 8; Barnesv. Cherry, 190 N.C. 774.
(585)