Since the plaintiff alleges that he is the duly qualified executor of the estate of the deceased, it is apparent upon the face of the complaint that the deceased died testate. The will is not made part of the complaint nor are its provisions referred to therein. Thus, it does not appear that the will contains any bequest or devise to or for the benefit of the defendant or that it created in or conferred upon her any right or interest in any property owned by the deceased at his death. Obviously, the defendant was not named executrix. It is not alleged in the complaint that the defendant has attempted to dissent from the will or that she has filed any claim against the estate, either as creditor, distributee or widow.
The plaintiff executor, while asserting his right to administer the estate by reason of the will, cannot assert its invalidity on the ground of lack of testamentary capacity in the testator. See In Re Will of Covington, 252 N.C. 551, 555, 114 S.E. 2d 261. He alleges that prior to the acts of the defendant of which he complains, the testator was “mentally incompetent to manage his business affairs and/or to understand the extent of his holdings.” He does not allege that this mental condition continued to the death of the testator. If it did, that circumstance would not revoke the will in whole or in part. G.S. 31-5.7; Warner v. Beach, 4 Gray (Mass.) 162; Atkinson on Wills, 2d ed., § 85; Williams on Executors 19, note (r), 191; 57 Am. Jur., Wills, § 525; 95 C.J.S., Wills, § 295.
The right of the widow to take under her husband’s will that which he saw fit to bequeath or devise to her is not among the rights which G.S. 31A-1 declares forfeited by her abandonment of him.
Since the complaint alleges no claim or assertion of any right by the defendant in or to any property of the estate, it alleges no jus-ticiable controversy between the parties and, therefore, no cause of action. Consequently, the demurrer was properly sustained.
Affirmed.