#### MAUDE JOYCE v. TOM JOYCE and FLOYD H. (JACK) JOYCE, Co-Executors of the Estate of FLOYD P. JOYCE, TOM JOYCE, FLOYD H. (JACK) JOYCE, CLEO STONE, NINA BILLINGS and ESTELLE ARRINGTON.

(Filed 19 December 1963.)

Wills § 60—

Adjudication that itbe fact 'that the widow had qualified as executrix did uoit estop her from resigning and filing a dissent to the will within six months of probate upheld, it being made to appear that at .the time of qualifying eihe was in a state of mental and physical exhaustion and that •she was an elderly woman of limited education and experience in business matters. G.S. 30-1.

Appeal by defendants from *Gwyn, J.,*at Chambers in Danbury, North Carolina, 12 August 1963. From Stores.

This is an 'action instituted under the pawiisioos oí the Uniform Declaratory Judgment Act of North Carolina, G.S. 1-253, ert. eeq., to determine whether the plaintiff in this .action, Maude Joyce, the widow of the late Floyd. P. Joyce, was estopped as a matter of larw from dissenting within the 'statutory period of isdx months .after probate, from her deceased husband's will, by her act of qualifying amid serving for a brief time as co-executrix of said will.

This eause was heard on 'Stipulated facts, and it was. further agreed 'that .the hearing ¡might be out of 'session before the Resident Judge of the Seventeenth Judicial District.

It .appears from the stipulated facts that Floyd P. Joyce .died testate on 7 June 1962, that his will was probated in the office of the Clerk of the Superior Court of Stokes County, North Carolina, on 3 July 1962. That the testator named Tom Joyce and Floyd H. (Jack) Joyce, his sons, as executors, and Maude Joyce, his wife, as executrix, and when the will was probated the Clerk of the Superior Court named all of said parties .as executors and executrix, respectively, to execute the said will.

On 20 December 1962, Maude Joyce, the plaintiff herein, filed a dissent to the will of Floyd P. Joyce and resigned .as executrix of said will and her resignation was accepted by the court.

*758Other pertinent stipulation© 'are ais follows:

“The widow is entitled to- ¡a greater share in the estate by dissenting from the will than she would to entitled to if she aacepted that which the will of Floyd P. Joyce provides for ¡her.

“At the time of his death, Floyd P. Joyce was seventy-eight (78) years of age. He had been seriously ill for .at least three (3) years next preceding the date of his death, -and for several weeks prior to his death he was critically ill. Throughout the illness of Floyd P. Joyce, he was faithfully and constantly eared for and (attended by Maude Joyce, the plaintiff. At the time of .the death of Floyd P. Joyce, the plaintiff was seventy-five (75) years old, land the care and attention given by her to' her husband, together with the anxiety .she experienced, was 'an1 arduous ordeal for’ any elderly woman. The plaintiff also performed the hiousehoid choréis1 .and tasks during this period of time. The nervous tension, strain .and heartache incident to the illness, dearth and buri'al of her husband, Floyd! P. Joyce, caused the plaintiff to *be*physically and mentally depleted and exhausted. The plaintiff wais suffering from extreme mental and physical exhaustion on July 3, 1962, when she was sworn in a© one of the Executors of the Will of her husband, and for a period of time thereafter. She had no conscious thought or recognition of ¡the legal significance of any .act which she did with reference to the estate on July 3, 1962, or in- the time which followed.

"That the plaintiff has very limited education:. She is inexperienced, unlearned, uninformed and was unadvised concerning business matters or .legal matter® at the time of the probate oif the Will of Floyd P. Joyce, end of her .appointment as one of the Executors of his Will. That she did not know the nature and extent of the property of her husband’© estate, nor did she know or understand the terms and conditions of his will. She did not seek or receive the advice of an. attorney concerning the will, or her rights and obligations under the will.

“That toe plaintiff ha© not accepted any benefits under toe terms of toe Willi of Floyd P. Joyce, or done or performed any act which would indicate that she desired to take under the terms of toe will.”

Based upon the court’s findings of fact from the stipulated facts, toe court concluded- as a matter of law that, toe act of qualifying as executrix under toe circumstances disclosed did' not estop toe plaintiff friom subsequently dissenting from the will of toe late Floyd P. Joyce within six months after the probate, and toe plaintiff is thereby entitled to- a share in the estate of her late husband in toe same manner and to the *dame*extent as though he 'had died intestate. Judgment was entered .accordingly.

Defendants appeal, assigning error.

*759
      *Hayes & Hayes for plaintiff appellee.*

*Leonard H. Van Noppen for defendant appellants.*

DeNNY, C.J.,

The defendants assign as error the .action of the court below -in signing judgment to the effect that the act of qualifying as executrix under the circumstances involved did not estop the plaintiff from subsequently dissenting from her husband’s will within six months after probate, and that she is entitled to take a share in the estate of her late husband in the same manner .and to. the same extent as -though he had died intestate.

Ordinarily, where a widow offers a will for probate ‘and qualifies as executrix thereunder, .and -enters upon the duties of her office, or knowingly -takes property thereunder, she may not afterwards be .allowed to resign and dissent from said will. *In re Meadows,*185 N.C. 99, 116 S.E. 257.

It is otherwise when it appears that such widow “was at the time -mentally and physically disqualified.' from attending to .the business in hand or having any intelligent concept of what she was about.” *In re Meadows, supra; In re Shuford’s Will,*164 N.C. 133, 80 S.E. 420, and cited cases; 166 A.L.R. Anno.—Wills—Election by Beneficiary, at page 323.

In the last cited case this .Court .said: “The widow having qualified as executrix, relying upon .the advice of her son and son-in-law, the latter ia member of the ibar in active practice, and upon an assurance of the other executors by which she was led to- believe that adequate provision would be made for her, which indeed the living children have endeavored to do, we think .she wa.s entitled to enter her dissent, notwithstanding her qualification, which she has done within the six months prescribed by the statute, upon finding that the assent of the living children would not be a protection to the executors in paying out the additional provision.”

The .statute G.S. 30-1 .allows a widow six months from .the probate of the will of her husband within which to -dissent. “Clearly that time is allowed by the law to enable the widow to -make an examination into the value of the estate, .the debts -and liabilities, -and for her to come to an intelligent conclusion as to the course she should pursue under -all the circumstances that .surround her.” *Richardson v. Justice,*125 N.C. 409, 34 S.E. 441.

The stipulations in this case make it clear that the plaintiff was at no time -between the death of her husband on 7 June 1962 and 3 July 1962, the date she qualified as executrix, mentally and physically capable of making an adequate -examination of the value of her husband’s estate or her rights with respect thereto.

*760It further appears from the stipulated facts, that in addition to plaintiff's mental amid physical condition, ¡she is an elderly woman, of limited education amid inexperienced in. ¡business matters; that she was uninformed and unadvised as to- her legal rights. Therefore, she was in mo position to- make am imfceMiigemt decision with -respect to- the course she Should pursue -under the -eircuanstamces that siurro-unded her.

The judgment entered below is

Affirmed.