Vinson v. Chappell, 13

• Decision Date: 09 April 1969
• Docket Number: No. 13,13
• Court: North Carolina Supreme Court
• Parties: Nannie D. VINSON v. Minnie V. CHAPPELL, Administratrix c.t.a. of John A. Vinson, Deceased; MinnieV. Chappell, Individually; Lizzie Sasser, Marl C. McClenny, Administrator ofthe Estate of David J. Winson, Deceased; Sallie H. Vinson, Widow; Margaret V.McClenny andFrances V. Bryant.

Page 686

166 S.E.2d 686

275 N.C. 234

Nannie D. VINSON v. Minnie V. CHAPPELL, Administratrix c.t.a. of John A. Vinson,

Deceased; MinnieV. Chappell, Individually; Lizzie Sasser,

Marl C. McClenny, Administrator ofthe Estate of David J.

Winson, Deceased; Sallie H. Vinson, Widow; Margaret

V.McClenny andFrances V. Bryant.

No. 13.

Supreme Court of North Carolina.

April 9, 1969.

Herbert B. Hulse and Sasser, Duke & Brown, Goldsboro, for plaintiff appellant.

Futrelle & Baddour, Goldsboro, for defendant appellees.

BOBBITT, Justice.

Chapter 879, Session Laws of 1959, as amended, is now codified as Chapter 29, 'Intestate Succession,' of Volume 2A, Replacement 1966, of the General Statutes.

Chapter 880, Session Laws of 1959, as amended, was reenacted by Chapter 849, Session Laws of 1965, and is now codified as Chapter 30, 'Surviving Spouses,' of Volume 2A, Replacement 1966, of the General Statutes.

The 1959 statutes were enacted June 10, 1959, and are applicable to estates of persons dying on or after July 1, 1960.

G.S. § 29--14(2), the pertinent portion of the Intestate Succession Act, provides that the share of the surviving spouse, '(i)f the intestate is survived by two or more children, or by one child and any lineal descendant of one or more deceased children or by lineal descendants of two or more deceased children,' shall be 'one-third of the net estate, including one-third of the personal property and a one-third undivided interest in the real property * * *.' If John had died intestate, Nannie, his surviving spouse, would be entitled to one-third of his net estate.

Under G.S. § 30--1, Nannie had the right to dissent from John's will if the aggregate value of the provisions under his will for her benefit, when added to the value of the property or interests in property passing in any manner outside the will to her as a result of his death, was less than her intestate share. North Carolina National Bank v. Stone, 263 N.C. 384, 386, 139 S.E.2d 573, 575.

Although the record discloses the provisions of John's will, there is no evidence, finding or stipulation as to (1) the value of John's entire estate, or (2) as to the aggregate value of the benefits passing to Nannie under John's will, or (3) as to the value of the property or interest in property, if any, passing to Nannie in any manner outside the will as a result of John's death. However, defendants have not challenged Nannie's right to dissent; and, since all interested parties are competent and more than twenty-one years of age, our further consideration is based on the assumption that Nannie's dissent is in all respects valid.

G.S. § 30--1 provides that '(a) spouse may dissent from his deceased spouse's will' if and when defined conditions exist. (For constitutional provisions and statutory enactments bearing upon a widower's right to dissent from his wife's will, see: Dudley v. Staton, 257 N.C. 572, 126 S.E.2d 590; Fullam v. Brock, 271 N.C. 145, 155 S.E.2d 737; also, 2 Lee, N.C. Family Law, § 216, including 1968 Cumulative Supplement.) G.S. § 30--2 relates to the time and manner of such dissent. G.S. § 30--3, relating to the effect of such dissent, is quoted below.

' § 30--3. Effect of dissent.--(a) 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; provided, that if the deceased spouse is not survived by a child, children, or any lineal descendants of a deceased child or children, or by a parent, the surviving spouse shall receive only one half of the deceased spouse's net estate as defined in G.S. 29--2(3), which one half shall be estimated and determined before any federal estate tax is deducted or paid and shall be free and clear of such tax. (Our italics.)

'(b) Whenever the surviving 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.

'(c) 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.'

G.S. § 30--3(b) applies only when these facts concur: (1) A married person, husband or wife, dies testate, survived by his (her) spouse. (2) The surviving spouse, being entitled under G.S. § 30--1 to do so, dissents. (3) The surviving spouse is a 'second or successive spouse.' (4) No lineal discendants 'by the second or successive marriage' Survive the testator (testatrix). (5) The testator (testatrix) is survived by lineal descendants by his (her) former marriage.

'In making a will a husband (or wife) is presumed to have knowledge of and to have taken into consideration the statutory right of his widow to dissent from the will. G.S. § 30--1.' Keesler v. North Carolina National Bank, 256 N.C. 12, 18, 122 S.E.2d 807, 812.

When the facts listed above concur, the husband or wife disposes of his (her) property by will with the knowledge that his (her) surviving 'second or successive spouse,' if she (he) elects to dissent, will receive only one-half of what she (he) would receive if the decedent had died intestate.

Analysis of G.S. § 30--3(b) discloses:

1. If the 'second or successive spouse' is the decedent, and is not survived by a child or lineal descendant of a former marriage, if any, the surviving husband (wife), if he (she) elects to dissent, will receive the Full intestate share of a surviving spouse. (Note: If Nannie had died and willed her property to persons other than John, John could have dissented from Nannie's will and by doing so would have received his Full intestate share in her estate.) It would seem that, in a factual situation in which one spouse would be reduced to one-half of the share to which he or she would be entitled if the other died intestate, the rule as to One-half should be applied equally to both parties to the marriage.

2. The inferior rights of the surviving 'second or successive spouse' do not depend upon whether a child was born of her (his) marriage with the decedent; rather, they depend upon whether such child (or lineal descendant) Survives the decedent.

3. G.S. § 30--3(b) is applicable when the decedent is Survived by a child or lineal descendant of a former marriage Even if the decedent's will leaves nothing to such child or lineal descendant.

Whether G.S. § 30--3(b) applies does not depend at all upon such considerations as: (1) The comparative durations of the first and second marriage; (2) whether the former marriage was terminated by death or by divorce; (3) the age(s) of the child or children of the former marriage at the time of the second or successive marriage; and (4) the age(s) of the child or children of the former marriage and their financial status at the time of the death of the decedent.

In Tolson v. Young, 260 N.C. 506, 133 S.E.2d 135, where decision was based in substantial part on G.S. § 30--3(b), the validity of this statute was not challenged on constitutional grounds or otherwise.

The constitutional question presented is whether G.S. § 30--3(b), by providing inferior rights to a surviving 'second or successive spouse,' is arbitrarily discriminatory and capricious and therefore denies to plaintiff the substantive due process of law guaranteed by Article I, Section 17, of the Constitution of North Carolina, and by the Fourteenth Amendment to the Constitution of the United States.

The provisions of G.S. § 30--3(b), as presently codified in Chapter 30 of Volume 2A, Replacement 1966, were enacted as part of Chapter 880, Session Laws of 1959. The reasons that impelled the inclusion of this unusual provision in the 1959 Act are unclear.

Our research indicates only two other States have statutes which provide that a surviving 'second or other subsequent spouse' who, under somewhat similar circumstances, elects to take 'against the will,' receives less than such surviving spouse would receive if she (he) were a First spouse. Ind.Ann.Stat. § 6--301 (1953); Wyo.Stat.Ann. § 2--47 (1959).

In an article entitled, 'Election, Dissent and Renunciation,' by Professor W. Bryan Bolich, this statement appears: 'This limitation on the amount a dissenter may receive could have either or both of two objectives: fostering freedom of testation or discouraging multiple marriages by making it financially less desirable to marry a widow or widower with issue by a prior marriage.' 39 N.C.L.R. 17, 33 (1960--61).

Since the public policy of the State is primarily for legislative determination, we express no opinion as to whether the law should discourage marriage with a widow or widower with issue by a prior marriage. Undoubtedly, by reason of G.S. § 30--3(b), a testator (testatrix) who has a child or lineal descendant by a former marriage has greater freedom of testation As against a childless 'second or successive spouse.'

As we read G.S. § 30--3(b), the legislative intent was To enable a person who has a child or lineal descendant by a former marriage to make greater provision for such...