Cunningham v. Brigman, 139 S.E.2d 353, 263 N.C. 208 (N.C., 1964)
Robert CUNNINGHAM, Margaret Cunningham Edwards, Frances
Cunningham Hardy, Evelyn Cuningham Sutton, Ray Cunningham,
Ervin Cunningham, Thelbert Cunningham, James Cunningham,
Ruby Cunningham Mewborn, Marjorie Cunningham Price, and
Laura Cunningham Thrift,
v.
Alice Bland BRIGMAN, alias Alice Bland Cunningham, and
Wachovia Bank and Trust Company, Executor of the
Estate of Leon Cunningham.
No. 319.
Supreme Court of North Carolina.
Dec. 16, 1964.
White & Aycock, by Chas. B. Aycock, Kinston, for plaintiff appellees.
Wallace & Langley, by F. E. Wallace, Jr., Kinston, for Wachovia Bank & Trust Co., Executor of Estate of Leon Cunningham, appellee.
J. Harvey Turner, Kinston, for defendant Alice Brigman Cunningham, appellant.
HIGGINS, Justice.
The purpose of the action is to have the Court declare the rights of the parties arising under the will of Leon Cunningham. By the terms of the will, the plaintiffs are given the entire estate except the $75.00 per month to be paid to the appellant by the trustee during the life of the trust, and then by the testator’s children thereafter during her life, or until she remarries. She filed a dissent to the will. This controversy presents a proper proceeding for declaratory judgment. G.S. § 1-255; Joyce v. Joyce, 260 N.C. 757, 133 S.E.2d 675; Little v. Wachovia Bank & Trust Co., 252 N.C. 229, 113 S.E.2d 689.
The right to dissent from a testator’s will is given to his widow. That right has its foundation in a valid marriage. If either of the parties to the marriage contract has a living spouse, a valid divorce is a prerequisite to another marriage. Consequently, in the absence of a valid divorce, the appellant is disqualified to enter into a contract of marriage so long as her former husband lives. A void decree of divorce, like any other void judgment, is a nullity. It may be attacked collaterally at any time. Legal rights do not flow from it. Ivery v. Ivery, 258 N.C. 721, 129 S.E.2d 457; Reid v. Bristol, 241 N.C. 699, 86 S.E.2d 417; City of Monroe v. Niven, 221 N.C. 362, 20 S.E.2d 311.
The appellant’s plea of estoppel is insufficient to give validity either to a void divorce decree or to an invalid marriage. All she alleges is that, subsequent to the purported marriage, her husband, after investigation, ascertained there might be some question about the validity of her divorce, and thereafter continued to live with her. Estoppel is for the protection of innocent persons. They, only, may claim its benefits. 31 C.J.S. Estoppel § 75, p. 453. The appellant procured the divorce. If the judgment is void, the testator had no knowledge of it. He had no part in procuring it. Wilmington Furniture Co. v. Cole, 207 N.C. 840, 178 S.E. 579. The court’s order striking the alleged defense was not error.
[263 N.C. 212] If it be conceded the appellant states a cause of action for services rendered the testator under the mistaken belief she was lawfully married to him, such cause does not arise out of any rights under the will; hence the cross action is a misjoinder. Johnson v. Scarborough, 242 N.C. 681, 89 S.E.2d 420, and cases cited. The motion to strike the cross action is in effect a demurrer to that cross action. The motion to strike was properly allowed.
This opinion has dealt with pleadings only. At the trial, the parties will have opportunity to be heard with respect to the validity of the appellant’s divorce, and the legality of her subsequent marriage contract with the testator. After the issues are resolved, the court may then declare and determine the rights of the parties under the will. The orders entered in the court below are
Affirmed.