Perry v. Jolly

Bobbitt, J.,

dissenting in part. I agree that, for the reasons stated in the majority opinion, the order of November 3, 1962, should be vacated.

I do not agree that the proceeds from a sale of real estate authorized and consummated in accordance with G.S. Chapter 35, Article 4, are to be treated as real estate owned by husband and wife as am estate by entirety. These statutory provisions apply when the husband or the wife or both are mentally incompetent. In my view, the legal effect of such authorized and consummated sale is the same as if both husband and wife were competent and had made a voluntary sale and conveyance, that is, one-half of the proceeds becomes the separate property of each spouse. Under this view: (1) If the husband is the incompetent, the wife becomes the absolute owner of one-half and the husband’s one-half is immediately available for the support of the incompetent husband and of his wife. (2) If the wife is the incompetent, she becomes the 'absolute owner of one-half <and the husband’s one-half is primarily liable for her support. (3) If both husband and wife are incompetent, the incompetent wife becomes the absolute owner of one-half and the husband’s one-half is primarily liable for her support.

Sharp, J., joins in this dissenting opinion.