Dudley v. Staton, 101

• Court: North Carolina Supreme Court
• Writing for the Court: PARKER
• Citation: Dudley v. Staton, 126 S.E.2d 590, 257 N.C. 572 (N.C. 1962)
• Decision Date: 10 July 1962
• Docket Number: No. 101,101
• Parties: Rufus L. DUDLEY v. W. Lonnie STATON and wife, Bettie Ruth Staton.

Page 590

126 S.E.2d 590

257 N.C. 572

Rufus L. DUDLEY v. W. Lonnie STATON and wife, Bettie Ruth Staton.

No. 101

Supreme Court of North Carolina.

July 10, 1962

Blount & Taft by Fred T. Mattox, Greenville, for respondent appellants.

Lewis G. Cooper and Louis W. Gaylord, Jr., Greenville, for petitioner appellee.

PARKER, Justice.

The Constitution of North Carolina adopted 24 April 1868 contains the following words:

ARTICLE X, ' § 6. Property of married women secured to them.--The real and personal property of any female in this State acquired before marriage, and all property, real and personal, to which she may, after marriage, become in any manner entitled, shall be and remain the sole and separate estate and property of such female, and shall not be liable for any debts, obligations, or engagements of her husband, and may be devised and bequeathed, and, with the written assent of her husband, conveyed by her as if she were unmarried.'

A one sentence amendment to this section adopted by a vote of the people of the State at a general election held 8 September 1956, giving a married woman the right to exercise powers of attorney conferred upon her by her husband, including power to execute and acknowledge deeds to property, is not relevant to this appeal.

The power conferred by Article X, section 6, of the 1868 Constitution upon married women in this State to devise and bequeath their real and personal property as if they were unmarried is confirmed by statute, G.S. § 52-1, in the same words as set forth in the constitutional section. This constitutional power conferred upon married women is further confirmed by statute. G.S. § 52-8 provides that 'every married woman 21 years of age or over has power to devise and bequeath her real and personal estate as if she were a feme sole; and her will shall be proved as is required of other wills.' This statute, except for the words '21 years of age or over,' was enacted by the General Assembly at its 1871-72 session, and appears in Public Laws of North Carolina, session 1871-72 in Chapter 193, section 31.

The General Assembly at its 1959 session enacted a statute, which appears in the 1959 Session Laws of North Carolina in Chapter 880 (codified in the 1959 Cumulative Supplement to Recompiled Vol. 2A of G.S. as sections 30-1, 30-2, and 30-3), and is entitled 'AN ACT TO REWRITE THE STATUTES ON DISSENT FROM WILLS.' Section 30-1(a) of this statute, and as it is codified, provides: 'Except as provided in subsection (b) of this Section, any surviving spouse may dissent from his or her deceased spouse's will.' Section 30-2 of the statute, and as it is codified, provides as to the time and manner of dissent. Section 30-3 of the statute, and as it is codified, provides as to the effect of a dissent. Subsection (a) provides that 'upon dissent as provided for in G.S. 30-2, the surviving spouse, except as provided in subsection (b) of this Section, shall take the same share of the deceased spouse's real and personal property as if the deceased had died intestate,' with a proviso that if the deceased spouse is not survived by a child, children, or any lineal descendant of such, or by a parent, the surviving spouse shall receive only one-half of the deceased spouse's estate, which one-half shall be determined before any federal estate tax is deducted or paid, and shall be free of such tax. Subsection (b) provides that whenever the surviving spouse is a second spouse, as here, he or she shall take only one-half of the amount provided by the Intestate Succession Act for the surviving spouse if the testator has surviving him lineal descendants by a former marriage, as here, but there are no lineal descendants surviving him by the second or successive marriage. Subsection (c) provides: 'If the surviving spouse dissents from his or her deceased spouse's will and takes an intestate share as provided herein, the residue of the testator's net estate, as defined in G.S. 29-2, shall be distributed to the other devisees and legatees as provided in the testator's last will, diminished pro rata unless the will otherwise provides.' Emphasis ours. The statute provides that it shall become effective on 1 July 1960, and shall be applicable only to estates of persons dying on or after 1 July 1960.

Eva Staton Harris Dudley, the testatrix here, died on 14 February 1961. The parties have stipulated that none of the exceptions set forth in G.S. § 30-1, subsection (b), exist, which would prevent petitioner from filing a dissent. It is admitted that on 1 May 1961, and within the time and in the manner prescribed by G.S. § 30-2, petitioner filed a dissent from the will of his deceased wife. The parties have further stipulated that the four parcels of realty described in the petition were acquired by the testatrix subsequent to the year 1868.

The General Assembly at its 1961 session enacted a statute, which appears in the 1961 Session Laws in Chapter 959 (codified in the 1961 Cumulative Supplement to Recompiled Vol. 2A of G.S. as sections 30-1, 30-2, and 30-3), and is entitled 'AN ACT TO AMEND CHAPTER 30 OF THE GENERAL STATUTES RELATING TO SURVIVING SPOUSES.' Section 30-1 of the 1959 Act, and as it is codified, was rewritten to read as follows: ' § 30-1. Right of dissent.--(a) A spouse may dissent from his deceased spouse's will in those cases where * * *.' The statute then sets forth in detail the cases in which a dissent may be filed. The 1961 Act became effective on 1 July 1961. It seems certain from the pleadings, admissions, and stipulations here that nothing exists as set forth in the 1961 Act, which would prevent petitioner from dissenting from his deceased wife's will, if she had died after 1 July 1961. G.S. § 30-2 of the 1959 Act, and as it is codified, as to time and manner of dissent was rewritten. If petitioner's wife had died after 1 July 1961, petitioner's dissent complies with this section as rewritten. G.S. § 30-3 of the 1959 Act, and as it is codified, was not rewritten, but merely amended as to a part of subsection (a), and that as to the proviso therein.

The 1961 Act did not repeal the right given by the 1959 Act to a husband to dissent from his deceased spouse's will, though it more elaborately defines the circumstances when he may dissent, and did not repeal the provisions of subsection (a) of section 30-3 of the 1959 Act, and as it is codified, that 'upon dissent as provided for in G.S. 30-2, the surviving spouse, except as provided in subsection (b) of this section, shall take the same share of the deceased spouse's real and personal property as if the deceased had died intestate,' though it amended the proviso, and it did not change the provisions of subsections (b) and (c) of the 1959 Act, and as it is codified.

The question for decision here is this: Do the provisions of G.S. §§ 30-1, 30-2, and 30-3, insofar as they give a husband a right in certain cases to dissent from his deceased wife's will, and to take a specified share of his deceased wife's real and personal property, whereby the residue of his deceased wife's net estate, as defined in G.S. § 29-2, shall be distributed to the devisees and legatees, as provided in her last will, diminished pro rata by the share taken by the husband, violate the provisions of Article X, section 6, of the North Carolina Constitution? The answer is, Yes.

The Court in a scholarly opinion, written by Judge Gaston, who was one of the most eminent jurists who ever sat upon this Court, said in Newlin v. Freeman, 23 N.C. 514:

'By the common law of England, after the conquest, lands could not be devised; but the Statute of Wills, 32 H. VIII., ch. 1, explained, because of abundant caution, by Stat. 34 H. VIII, ch. 5, enacted that all persons seized in fee simple (except femes covert, infants, idiots, and persons of nonsane memory) might devise to any other person, except bodies corporate, twothirds of their land held in chivalry, and the whole of those holden in socage. This was the law brought over to this country by our ancestors, and, as all tenures here before the Revolution were by free and common socage, this power of devising applied to all lands within the colony. Many laws have since the Revolution been enacted by our Legislature on the subject of devises, but none extending or abridging the power of tenant in fee simple, such as it existed at the Revolution. A married woman, neither in the country of our ancestors nor with us, ever had capacity to devise. It is true that she might by means of a power, properly created, appoint a disposition of her real estate after death, which power must be executed, like the will of a feme sole, and is subject very much to the same rules of construction. But the act, if good, is valid as an appointment under a power, and it is not a devise; for to hold it such would be to give to a married woman a capacity which she did not possess at common law and which no statute has conferred upon her.'

The General Assembly at its Session of 1844-45, it would seem as a result of the decision in Newlin v. Freeman, enacted a statute set forth in Chapter LXXXVIII, subsection VIII, Public Laws of North Carolina from 1844 to 1847, as follows:

'That when any married woman, under any will, deed, settlement, or articles, shall have power, by an instrument in nature of a will, to appoint or dispose of any property, real or personal, and she shall have executed, or shall execute any such instrument, the same may be admitted to probate in the proper Court of Pleas and Quarter Sessions, or may be proved originally in a Court of Equity, upon a proper bill for that purpose; and either mode of probate shall be conclusive as to the due execution thereof.'

This subsection was codified in Rev.Code, Ch. 119, sec. 3.

Article X, section 6, of the 1868 State Constitution completely abolished the general doctrine of the common law that as to property husband and wife are in legal contemplation but one person, and the...