Guilford County NcArchives Court.....Lemuel Wilson, James H. Bell V. 1849
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Connie Ardrey n/a January 30, 2010, 11:38 am

Source: Nc Reports
Written: 1849

James H. Bell, Adm'r &c vs. Lemuel Wilson & Al, 1849

Before the Act of 1848, ch. 101, a widow could not dissent from her husband's 
will by attorney, although she was too unwell or infirm to travel to Court, so 
as to dissent in person.

Cause transmitted from the Court of Equity of Guilford County, at the Spring 
Term, 1849.

James Nelson died in the year 1844, having previously made and published in 
writing a last will and testament. By his will he devised to his wife, the 
plaintiff's intestate, a portion of his estate, both real and personal. And 
within the time limited by law, one D.H. Starbuck, claiming to be her counsel 
and attorney, on motion to the Court, caused her dissent to the will to be 
entered of record, she not being present nor appearing in Court. She is dead, 
and the plaintiff is her administrator. The bill is filed for an account of 
the personal estate, and claims one seventh, or a child's part, upon the 
ground of her dissent to her husband's will - and the bill charges that, at 
the time her dissent was made by her attorney, she was unable from bodily 
infirmity to attend Court to make known her dissent in person.

J.T. Morehead, for the plaintiff
No cousel for the defendants

[NC Supreme Court]
Nash, J. The bill was filed at Spring Term 1847, and at June Term 1846 the 
case of Hinton v. Hinton, 6 Ired. 274, was decided, which, in connection with 
the act of the last General Assembly, ch. 101 s. 1, disposes of this case. It 
is not necessary to recite the facts of the case referred to, and we presume 
this bill was filed in consequence of what fell from the Chief Justice in the 
last section of his opinion. He observes, that, in the preceeding part of the 
opinion, the case had been considered solely as a question of law, upon the 
construction of the act of 1784, without adverting to the petitioner's 
sickness, which is stated in the case. "If it were material, it could not 
operate here, because it is no stated in the petition &c." "But," the opinion 
proceeds, "if the petition had been otherwise framed, and had set out that 
excuse, it would have made no difference." It is true, the case then before 
the Court did no call for the expression of opinion upon that point, and it 
may therefore, be considered, extrajudicial; yet the individuals then 
composing the Court were united in it, and a majority of those, who were then 
upon the bench, are still so; and see no reason to alter their opinion. I am 
authorised to say, Judge Pearson concurs in the opinion. The Legislature so 
considered the law to be after that decision, for in the act referred to, 
passed at their recent session, they give the widow a right, where she is sick 
or too infirm to travel to Court, to cause her dissent to be entered by her 
attorney.

Per Curiam
Bill dismissed with costs

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