Lucas' Estate v. Jarrett

• Decision Date: 15 December 1981
• Docket Number: No. 8121SC310,8121SC310
• Court: North Carolina Court of Appeals
• Parties: In the Matter of the ESTATE of John Junior LUCAS, Deceased, Kenneth E. Conrad, Tanya R. Conrad, and Millicent A. Conrad v. Ola Mae JARRETT, Admr. of John Junior Lucas.

Page 711

284 S.E.2d 711

55 N.C.App. 185

In the Matter of the ESTATE of John Junior LUCAS, Deceased Kenneth E. Conrad, Tanya R. Conrad, and Millicent A. Conrad v. Ola Mae JARRETT, Admr. of John Junior Lucas.

No. 8121SC310.

Court of Appeals of North Carolina.

Dec. 15, 1981.

David B. Hough, Winston-Salem, for plaintiffs.

Kennedy, Kennedy, Kennedy & Kennedy by Harvey L. Kennedy, Harold L. Kennedy, Jr., and Harold L. Kennedy, III, Winston-Salem, for defendant.

WHICHARD, Judge.

John Junior Lucas died intestate on 17 May 1980. On 27 May 1980 defendant Ola Mae Jarrett, pursuant to renunciation by decedent's mother of her alleged right to administer and to her request that defendant be appointed, applied for letters of administration from the clerk of superior court. In her application defendant listed decedent's mother as the sole heir and distributee and stated that no children were born to decedent. The clerk authorized issuance of letters of administration to defendant on 27 May 1980.

On 6 June 1980 plaintiffs initiated a G.S. 28A-9-1 proceeding before the clerk to revoke the letters of administration issued to defendant and to establish their right, pursuant to G.S. 29-19, to take from the estate as illegitimate children of decedent. Plaintiffs alleged the following in a verified complaint: They were born out of wedlock to their mother, Florence Virginia Conrad, and to their natural father, decedent. Decedent was finally adjudged to be their father in 1959 and 1962 non-support proceedings under G.S. 49-1 through 49-9. G.S. 29-15 entitled them, rather than decedent's mother, to take from decedent's estate. They, as decedent's heirs, had a right to administer the estate superior to that of decedent's mother or defendant; and they had not renounced that right. Defendant obtained her letters through false representation or mistake regarding the existence of potential heirs and distributees other than decedent's mother.

The clerk issued an order that defendant appear to show cause why she should not be removed as administratrix. At the hearing, attended by plaintiffs and defendant, Florence Virginia Conrad testified for plaintiffs that she had lived out of wedlock with decedent from 1956 until 1980, and had borne nine children by decedent, of whom three were the plaintiffs. She had sworn criminal warrants against decedent for nonsupport of plaintiffs, and the court had adjudged decedent to be their father. Defendant testified that she was decedent's sister and she knew the plaintiffs as the children of decedent.

The clerk ordered defendant removed as administratrix, based upon findings of fact that plaintiffs were the natural children of decedent entitled to take by, through, and from him pursuant to G.S. 29-19(b)(1), that plaintiffs were qualified and entitled to administer the estate (G.S. 28A-4-1(b)(3)), and that letters of administration had been issued to defendant due to a false representation or mistake. Defendant appealed to the superior court, but made no specific exceptions to the findings of fact or conclusions. Defendant then filed a motion for summary judgment in which she raised for the first time issues concerning the sufficiency of plaintiffs' notice of their claim to satisfy G.S. 29-19(b), and the constitutionality of 29-19(b)(1) on its face and as applied to decedent's estate. Plaintiffs filed a response, together with affidavits of Tanya R. Conrad, Millicent A. Conrad, and Florence Virginia Conrad. They also filed a second notice of the basis of their claim of entitlement to inherit from decedent.

The superior court concluded that plaintiffs' verified complaint and second notice each satisfied G.S. 29-19(b) and therefore plaintiffs, as the natural children of decedent, who had been adjudged their father, were entitled to take by, through, and from his estate. It declared G.S. 29-19(b)(1) to be constitutional both on its face and as applied. Finally, it found insufficient competent evidence to support the finding that issuance of letters to defendant resulted from false representation or mistake of the defendant. It therefore reversed the clerk's order of removal and adjudged that defendant was properly serving as administratrix.

Plaintiffs and defendant appeal.

DEFENDANT'S APPEAL

Defendant presents two questions: (1) whether the court erred in declaring G.S. 29-19(b) constitutional, both on its face and as applied to decedent's estate; and (2) whether the court erred in declaring that plaintiffs were entitled to take from the estate. We affirm on both questions.

A. Constitutionality of G.S. 29-19(b)

G.S. 29-19, in pertinent part, provides:

(b) For purposes of intestate succession, an illegitimate child shall be entitled to take by, through and from:

(1) Any person who has been finally adjudged to be the father of such child pursuant to the provisions of G.S. 49-1 through 49-9 or the provisions of G.S. 49-14 through 49-16;

....

Notwithstanding the above provisions, no person shall be entitled to take hereunder unless he has given written notice of the basis of his claim to the personal representative of the putative father within six months after the date of the first publication or posting of the general notice to creditors.

G.S. 29-19(b) (Cum.Supp.1979). Defendant asserts that application here of G.S. 29-19(b) constitutes an unconstitutional retroactive application of a change in substantive law. She argues that decedent's rights with respect to intestate succession vested in 1959 and 1962 when he was adjudged to be plaintiffs' father, and therefore that the laws in effect in 1959 and 1962 should apply. Under those laws children born out of wedlock who were not legitimated, either through marriage of their parents or legitimation proceedings, could not inherit from their fathers. See Jolly v. Queen, 264 N.C. 711, 142 S.E.2d 592 (1965).

While it is true that an act cannot be applied so as to interfere with rights which had vested or liabilities which had accrued prior to its enactment, see Booker v. Medical Center, 297 N.C. 458, 467, 256 S.E.2d 189, 195 (1979), application of G.S. 29-19(b) here does not interfere with vested rights or accrued liabilities. The right to take property by descent or distribution does not arise until the death of the intestate. See Vinson v. Chapell, 275 N.C. 234, 166 S.E.2d 686 (1969). Such right is not natural or inherent, but arises purely by operation of law. Id. The legislature has the power to make and change the law relative to descent and distribution of property within the state. See e.g. Wilson v. Anderson, 232 N.C. 212, 59 S.E.2d 836 (1950). Accordingly, the disposition of the property of a person who dies intestate is governed by the law as it exists at the time of that person's death. Vinson, 275 N.C. 234, 166 S.E.2d 686; Wilson, 232 N.C. 212, 59 S.E.2d 836. Hence, a person has no right to have his property distributed upon his death intestate according to any law of intestacy other than that in effect at his death. Likewise, a person has no right to the disposition of the property of his ancestor who dies intestate according to any law other than that in effect at the ancestor's death.

All rights regarding descent and distribution of decedent's estate thus vested upon his death intestate in 1980. Those rights vested, therefore, after the enactment of G.S. 29-19(b) as it existed at the time of his death. The court, then, properly determined that application of G.S. 29-19(b) to decedent's estate did not interfere with vested rights or accrued liabilities.

Defendant contends Wilson v. Anderson, 232 N.C. 212, 59 S.E.2d 836 (1950), dictates a contrary result. We disagree. The Wilson court held that the right of an adopted plaintiff to inherit from the estate of her adoptive father's brother had been established at the time of her adoption. The result in Wilson obtained because the final order of adoption, which had the force and effect of a judgment, specifically incorporated the law regarding inheritance by adopted children then in effect. Thus, although the court recognized that disposition of an intestate's property generally is governed by the law in force at the time of his death, when the right of a person to inherit is prescribed and limited by court order that order will control. Wilson, 232 N.C. at 220, 59 S.E.2d at 843. The rights of plaintiffs here to inherit were not so prescribed by court order or judgment prior to decedent's death. Consequently, the statutes in effect at his death control their rights.

Defendant also asserts that G.S. 29-19(b)(1) cannot constitutionally be applied here because decedent was not represented by counsel when he was adjudged the father of plaintiffs. Although this court in Wake County ex rel. Carrington v. Townes, 53 N.C.App. 649, 281 S.E.2d 765 (1981), has recognized the state constitutional right of an indigent putative father in a paternity suit brought by the state to have counsel appointed to represent him, the question of retroactive application of that decision has not been passed upon. Even if that decision were to be applied retroactively, however, the right there found is individual to the putative father and cannot be asserted by his estate after his death. See e.g. Stanley, Edwards, Henderson v. Dept. Conservation & Development, 284 N.C. 15, 199 S.E.2d 641 (1973).

The court properly concluded that G.S. 29-19(b)(1) was constitutional on its face and as applied to decedent's estate.

B. Declaration that plaintiffs were entitled...