Connor's Estate, In re

• Decision Date: 02 July 1969
• Docket Number: No. 6918SC167,6918SC167
• Citation: 168 S.E.2d 245,5 N.C.App. 228
• Parties: In the Matter of ESTATE of J. Robert CONNOR, Deceased.
• Court: North Carolina Court of Appeals

Page 245

168 S.E.2d 245

5 N.C.App. 228

In the Matter of ESTATE of J. Robert CONNOR, Deceased.

No. 6918SC167.

Court of Appeals of North Carolina.

July 2, 1969.

H. Irwin Coffield, Jr., Sprinkle, Coffield & Stackhouse, High Point, for North Carolina National Bank, appellee.

Roberson, Haworth & Reese, High Point, for Lucille M. Connor, appellant.

MALLARD, Chief Judge.

The qualified right of a surviving spouse to dissent arises under G.S. § 30--1. This right arises when the value of property passing under the will added to the value of property passing outside the will as a result of the testator's death is less than the intestate share, or is less than one-half the net estate of the deceased spouse if neither lineal descendant nor parent survive.

Under G.S. § 29--14(3) when an intestate has no lineal descendants but is survived by a spouse and a parent, the intestate share of the surviving spouse is a one-half undivided interest in the real property and the first ten thousand dollars in value plus one-half of the remainder of the personal property. See Smith v. Smith, 265 N.C. 18, 143 S.E.2d 300 (1965). The intestate share does not include the value of property passing by survivorship (which includes property owned as tenants by the entirety), joint accounts with right of survivorship, and insurance payable to the surviving spouse.

The question the parties attempt to present is whether Lucille M. Connor as surviving spouse, can dissent from the will of her deceased husband. The will provides that she is to receive the income for life of a trust established for her benefit and provides further that the trustee, in its discretion, may invade the principal in order to make such payments as it may deem requisite or desirable to meet her reasonable needs. The only direct control the surviving spouse has over this trust property is the power to dispose of the principal of the trust remaining at her death. The trust property consists of that part of the 'residuary estate which will equal the maximum marital deduction allowable in determining the federal estate tax payable by reason of my death, diminished by the value of all other property interests which will be included in my gross estate for federal estate tax purposes and which pass or have passed from me to me wife (either under any other provisions of this Will or in any other manner outside of this Will) in such manner as to qualify for the marital deduction.'

The question of whether a surviving spouse can dissent from the will of her deceased husband when the will gives her the maximum marital deduction allowable to such spouse for federal estate tax purposes, and the deceased also leaves a parent surviving should be determined under G.S. § 29--14(3) by following the statute (G.S. § 30--1(c)) with respect to determining the property involved and its value.

'Intestate share,' in this case, means the amount of real and personal property that Lucille M. Connor, the surviving spouse, would receive under the provisions of Chapter 29 of the General Statutes of North Carolina, known as the Intestate Succession Act, if J. Robert Connor, her husband, had died intestate. 'Intestate share' in this case does not include any property received by Lucille M. Connor as a tenant by entirety, or from insurance contracts, or from joint accounts with right of survivorship.

In this case it was stipulated that J. Robert Connor is survived by his mother Daisy Lee Connor, and that Lucille Martin Connor is the second wife and the surviving spouse of J. Robert Connor, deceased, and that no children were born to either of the two marriages of J. Robert Connor. The right of a surviving spouse to dissent from the will of the deceased spouse is governed by Art. 1 of Chapter 30 of the General Statutes. G.S. § 30--1(c) provides that:

'For the purpose of establishing the right of dissent, the estate of the deceased spouse and the property passing outside of the will to the surviving spouse as a result of the death of the testator Shall be determined and valued as of the date of his death, which determination and value the executor or administrator with the will annexed and the surviving spouse are hereby authorized to establish by agreement subject to approval by the clerk of the superior court. If such personal representative and the surviving spouse do not so agree upon the determination and value, or if the surviving spouse is the personal representative, or if the clerk shall be of the opinion that the personal representative may not be able to represent the estate adversely to the surviving spouse, the clerk shall appoint one or more disinterested persons to make such determination and establish such value. Such determination and establishment of value made as herein authorized Shall be final for determining the right of dissent and shall be used exclusively for this purpose.' (Emphasis added).

This statute which permits dissent in certain instances also requires that the property involved shall be determined and valued as of the date of death of the testator. The procedure is mandatory. It was not followed in the case before us. This statute also provides that when the values...