Sedberry v. Johnson
| Decision Date | 07 June 1983 |
| Docket Number | No. 8210SC713,8210SC713 |
| Citation | 302 S.E.2d 924,62 N.C.App. 425 |
| Court | North Carolina Court of Appeals |
| Parties | Charles H. SEDBERRY, Administrator CTA DBN of the Estate of William J. Johnson, Deceased Appellee, v. Kathleen Mullins JOHNSON, Appellant, Amy Wrenn Johnson, Minor, Sandra Joann Johnson Combs, Appellees, Lauren Lynn Johnson, Susan Gail Kridel, and Janet Elaine Johnson, Parties of Record Only. |
Hall, Hill & O'Donnell by Lawrence W. Hill, Jr., Raleigh, for defendant-appellee.
Ragsdale, Kirschbaum & Day, P.A. by Ronald I. Kirschbaum, Raleigh, for defendant-appellant.
The issue can be stated as follows:
Where a husband executes a will devising and bequeathing all his property to his wife, the spouses thereafter enter a separation agreement in which each "waives and renounces all rights ... under any previously executed Will of the other," and the husband subsequently dies without having revoked or modified his will, does the separation agreement constitute a valid renunciation which adeems the devise and bequest to the wife?
We hold that it does.
This is a declaratory judgment proceeding in which the administrator CTA DBN of the estate of William J. Johnson (hereafter decedent) seeks instructions concerning the persons entitled to share in the estate.
By will dated 23 November 1976 decedent devised and bequeathed all his property to his wife, defendant Kathleen Johnson (hereafter defendant). He further provided that if defendant predeceased him, he devised and bequeathed all his property in trust for the benefit of his children.
On 3 August 1979 decedent and defendant entered a separation agreement, the general validity and binding effect of which is not disputed. The agreement provided, inter alia, that each spouse "waives and renounces all rights he or she may now have under any previously executed Will of the other as well as the right which they may now have or hereafter acquire under the present or future laws of any jurisdiction to share in the property or estate of the other in any way by reason of the marital relationship ...."
On 12 February 1980 decedent died. He had not revoked or altered the 1976 will, nor had an absolute divorce been entered between him and defendant.
The trial court made the following pertinent findings of fact:
5. By executing said Separation Agreement dated August 3, 1979, William J. Johnson and Kathleen Mullins Johnson each intended to relinquish, waive and renounce all rights either then had or might subsequently acquire under the provisions of any previously executed Will of the other, including the right to take a bequest, legacy or devise under such previously executed Will, as well as all rights to share in the property or estate of the other in any way by reason of the marital relationship or to administer upon the estate of the other.
6. Article IV of said Last Will and Testament of William J. Johnson contains a devise and bequest of all his property to his said wife, Kathleen Mullins Johnson.
7. Article V of said Last Will and Testament of William J. Johnson contains a residuary clause which provides for the establishment of a testamentary trust for the benefit of his daughters, Amy Wrenn Johnson and Sandra Joann Johnson, and devises and [bequeaths] the residue of his estate to said testamentary trust in the event he is predeceased by Kathleen Mullins Johnson.
8. The said Last Will and Testament of William J. Johnson contains no dispositive provisions other than those contained in Article IV and Article V.
9. It was the intent of William J. Johnson, as manifested in the provisions of his said Last Will and Testament, that the residuary clause contained in Article V of said Will would be operative in the event Kathleen Mullins Johnson, for any reason, failed to take under said Last Will and Testament.
On the basis of these findings it entered the following conclusions of law:
1. The Separation Agreement dated August 3, 1979, between Kathleen M. Johnson and William J. Johnson, Deceased, was and is valid and binding.
2. William J. Johnson and Kathleen Mullins Johnson, by their [Separation] Agreement, intended to relinquish, waive and renounce all rights either of them then had or might subsequently acquire under the provisions of any previously executed Will of the other, including the right to take a bequest, legacy or devise under such previously executed Will as well as all rights to share in the property or estate of the other in any way by reason of their marital relationship or to administer upon the estate of the other.
3. Kathleen Mullins Johnson is barred by the Separation Agreement she executed with William J. Johnson, from taking any bequest, legacy, or devise contained in the Last Will and Testament of William J. Johnson dated November 23, 1976, and is also barred from all rights to share in the property or estate of William J. Johnson by reason of their marital relationship and is further barred from the right to administer upon the Estate of William J. Johnson, Deceased.
4. William J. Johnson intended the residuary clause contained in Article V of his Last Will and Testament to be operative in the event Kathleen Mullins Johnson, for any reason, failed to take under said Will.
5. The testamentary trust provided for in Article V of the Last Will and Testament of William J. Johnson is operative for the benefit of Amy Wrenn Johnson and Sandra Joann Johnson.
6. None of the defendants in this action, except said Amy Wrenn Johnson and Sandra Joann Johnson, have any interest in or are entitled to share in the Estate of or take under the Will of William J. Johnson, Deceased.
It thereupon adjudged that decedent's children were the persons entitled to share in his estate, to the exclusion of defendant.
Defendant appeals.
Defendant's contentions can be summarized as follows:
Because the will speaks from the time of death rather than of execution, defendant's rights thereunder did not exist when the separation agreement was executed and thus could not be waived at that time. When the agreement was executed, then, the will "was inoperative to confer upon [defendant] any rights which were subject to waiver."
A conclusion that the agreement barred defendant's rights as beneficiary is equivalent to holding that the agreement operated to modify or revoke the will. G.S. 31-5.1 (1976) provides that a will can be revoked only by the methods provided therein, which do not include subsequent execution of a separation agreement. The statutory method of revocation is thus exclusive, and the separation agreement cannot operate as a bar to defendant's rights under the will.
We reject these contentions for the following reasons:
A.
The statutory law of this state permits a married couple to execute a separation agreement "not inconsistent with public policy which shall be legal, valid, and binding in all respects." G.S. 52-10.1 (Cum.Supp.1981). Thus, "[i]t is...
To continue reading
Request your trial
-
Hinson v. Hinson
...or renounce property or an interest therein under any other statute or as otherwise provided by law." See also Sedberry v. Johnson, 62 N.C.App. 425, 302 S.E.2d 924 (1983). A beneficial bequest or devise gives rise to a presumption of acceptance by the beneficiary. Perkins v. Isley, 224 N.C.......
-
Estate of Tucci, Matter of
...284 N.C. 407, 200 S.E.2d 622 (1973) (complete property settlement barred rights as surviving spouse of intestate); Sedberry v. Johnson, 62 N.C.App. 425, 302 S.E.2d 924, disc. rev. denied, 309 N.C. 322, 307 S.E.2d 167 (1983) (property settlement release barred testamentary share under will).......
-
Estate of Dancy v. C.I.R.
...statutes. 2 The Department's determination is also consonant with the expansive treatment accorded Sec. 31B-5 in Sedberry v. Johnson, 62 N.C.App. 425, 302 S.E.2d 924 (1983). The disclaimer in that case did not meet the procedural requirements of the statute because it was made in a separati......
-
Peck v. Comm'r of Internal Revenue (In re Estate of Dancy )
...in this case. Petitioner argues that the necessary North Carolina case authority is provided by the case of Sedberry v. Johnson, 62 N.C. App. 425, 302 S.E.2d 924 (1983), but we think this reliance is misplaced. In that case, a husband had executed a will devising and bequeathing all his pro......