Phillips v. Phillips
| Decision Date | 16 March 1979 |
| Docket Number | No. 75,75 |
| Citation | 252 S.E.2d 761,296 N.C. 590 |
| Court | North Carolina Supreme Court |
| Parties | Marie Cannon PHILLIPS v. Howard Lee PHILLIPS, Jr., Individually and as Executor of the Estate of HowardLee Phillips, Howard Lee Phillips, III, John Bradford Phillips, and Edgar W.Tanner, Clerk of Superior Court of Rutherford County. |
Roberts & Planer by Joseph B. Roberts, III, Gastonia, for plaintiff-appellee.
Robert W. Wolf and George R. Morrow, Forest City, for defendants-appellants.
The question in this case is whether the facts found by the trial judge and stipulated by the parties are sufficient to establish the right of plaintiff, a childless surviving successive spouse, to dissent from the will of her deceased husband, who is survived by one son of a prior marriage.
The right of a surviving spouse to dissent from his or her deceased spouse's will is conferred by statute "and may be exercised at the time and in the manner fixed by statute." Vinson v. Chappell, 275 N.C. 234, 166 S.E.2d 686 (1969). The "time and manner" is fixed by G.S. 30-2, which permits any spouse entitled to dissent to do so within six months of the date letters testamentary were issued to the decedent's personal representative. The clerk may extend the time if litigation affecting the share of the surviving spouse is pending at the expiration of the time allowed. In this case the right to dissent is conferred by N.C.Gen.Stats. § 30-1(a) (1976), the law in effect on 8 April 1975, the date of testator's death. This section provided:
Effective 1 October 1975, G.S. 30-1(a) was amended by adding a new subdivision as follows: "(3) Is less than the one half of the amount provided by the Intestate Succession Act in those cases where the surviving spouse is a second or successive spouse and the testator has surviving him lineal descendants by a former marriage and there are no lineal descendants surviving him by the second or successive marriage."
This subsection squarely addresses the factual situation of the instant case. However, since the General Assembly expressly limited its application "to the estates of decedents dying after 1 October 1975," it has no application here.
At this point it is necessary to take note of Section (b) of G.S. 30-3, which will determine the distributive share of plaintiff in the net estate of her deceased husband if her right to dissent is upheld. This section provides: "Whenever the surviving spouse (who dissents to the will of the deceased spouse) is a second or successive spouse, 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 but there are no lineal descendants surviving him by the second or successive marriage."
Thus, if it be determined that plaintiff is entitled to dissent, the parties concede the correctness of the trial court's conclusion that she will be entitled to one fourth of the decedent's net estate (one-half of her intestate share). See Vinson v. Chappell, 275 N.C. 234, 238, 166 S.E.2d 686, 689 (1969).
We find no merit in defendants' contention that because G.S. 30-1(a) and G.S. 30-3(b) are in Pari materia, plaintiff should have a right to dissent only if the property she receives within and without the will is less than the share she would take under G.S. 30-3(b). As a "successive spouse," plaintiff will receive only one half of an intestate share under G.S. 30-3(b) if her right to dissent is established. Defendants argue therefore that she should be allowed to dissent only if the $70,000 she received outside the will is less than one half of her intestate share. Clearly, under the facts of this case, if that is to be the test, plaintiff will have no right to dissent.
It is true that statutes dealing with the same subject matter must be construed together. "When, however, the section dealing with a specific matter is clear and understandable on its face, it requires no construction." Utilities Comm. v. Electric Membership Corp., 275 N.C. 250, 260, 166 S.E.2d 663, 670 (1969). See 12 Strong's N.C. Index 3d Statutes § 5.5 (1978). The term "intestate share," as used in G.S. 30-1(a)(1) is clear and unambiguous. That the legislature provides one criterion for determining whether the right to dissent exists and another for determining the consequences of the dissent creates no ambiguity.
The absence of any ambiguity in G.S. 30-1(a)(1) likewise refutes defendants' argument that the 1975 amendment which added subsection (3) to G.S. 30-1(a) manifests the General Assembly's intent that the term "intestate share" in subsection (1) be defined with reference to the consequences of the dissent. While the purpose of an amendment to an ambiguous statute may be presumed to be "to clarify that which was previously doubtful," it is logical to infer that an amendment to an unambiguous provision, such as G.S. 30-1(a), evinces an intent To change the law. Taylor v. Crisp, 286 N.C. 488, 497, 212 S.E.2d 381, 387 (1975); Childers v. Parker's, Inc., 274 N.C. 256, 162 S.E.2d 481 (1968).
Nor does attributing to G.S. 30-1(a)(1) its plain and definite meaning lead to an absurd result, as defendants contend. Common sense does not compel the assumption the legislature intended that the comparative figure used to determine a spouse's right to dissent (intestate share) should necessarily equal the distributive share of a dissenting spouse. The language of G.S. 30-1(c), which establishes a valuation procedure "(f)or the purpose of establishing the right of dissent" and mandates that the value so determined "be used exclusively for (that) purpose," indicates that the General Assembly anticipated a variance between this valuation and the ultimate distributive share. Further, under our present law, several situations exist where the right to dissent is determined by use of a figure which is more or less than the amount which would actually be received as a consequence of the spouse's dissent. See Note, Does North Carolina Law Adequately Protect Surviving Spouses ?, 48 N.C.L.Rev. 361 (1970).
We hold therefore that the plaintiff's right to dissent is determined by subsection (1) of G.S. 30-1(a) without reference to G.S. 30-3(b).
To determine whether a surviving spouse has the right to dissent from the deceased spouse's will it is necessary to ascertain and compare two figures. The first is the aggregate value of the property passing to the surviving spouse under the will and outside the will.
G.S. 30-1(b) provides, among other things, that the value of proceeds of insurance policies on the life of the decedent received by the spouse shall be included in the value of property passing to the surviving spouse as a result of the testator's death. Subsection (c) requires that the estate of the deceased spouse, and any property passing outside the will to the surviving spouse as a result of the testator's death, be determined and valued as the date of death. When the personal representative and the surviving spouse fail to agree, G.S. 30-1(c) directs the clerk to appoint one or more disinterested persons to determine and establish the value of the property. It further provides that such determination and valuation "shall be final for determining the right of dissent and shall be used exclusively for this purpose."
Here, nothing passed to plaintiff under the will. Only the proceeds of a life insurance policy on testator's life, $70,000, came to her outside the will. Thus, in this case, the first figure is $70,000.
The second figure to be ascertained is the value of plaintiff's intestate share in testator's estate. If this figure is less than $70,000, plaintiff has the right to dissent; otherwise not. Obviously, therefore, the right to dissent cannot be determined without first ascertaining the value of the surviving spouse's intestate share in the deceased spouse's estate.
The "intestate share" of a surviving spouse is the quantum of real and personal property he or she would receive under the provisions of N.C.Gen.Stat., ch. 29 (1976), known as the Intestate Succession Act. The section of the Act which applies to plaintiff's situation, G.S. 29-14(1), provides: "If the intestate is survived by only one child or by any lineal descendant of only one child, (the surviving spouse shall receive) one half of the net estate, including one half of the personal property and a one half undivided interest in the real property."
"Net estate" as used in the Intestate Succession Act "means the estate of a decedent, exclusive of family allowances, costs of administration, and all lawful claims against the estate." G.S. 29-2(5).
Since the intestate share of any surviving spouse, or other heir, is ordinarily a percentage of the decedent's net estate, the amount of the net estate must be determined within limits which will permit the court to ascertain with substantial accuracy whether the value of the intestate share of the surviving spouse is less or greater than the value of the property passing to her in and outside the will. This determination, however, may not be an easy task. Indeed, in some cases, it may not be possible.
Prior to the time the personal representative files his final account, it will seldom, if ever, be possible to...
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