Vinson v. Chappell, 688SC445
| Decision Date | 31 December 1968 |
| Docket Number | No. 688SC445,688SC445 |
| Citation | 164 S.E.2d 631,3 N.C.App. 348 |
| Court | North Carolina Court of Appeals |
| Parties | Nannie D. VINSON v. Minnie V. CHAPPELL, Administratrix C.T.A. of John A. Vinson, Deceased, MinnieV. Chappell, Individually, Lizzie Sasser, Merl C. McClenny, Administrator ofthe Estate of David J. Vinson, Deceased, Sallie H. Vinson, Widow, Margaret V.McClenny andFrances V. Bryant. |
Herbert B. Hulse and Sasser, Duke & Brown by John E. Duke, Goldsboro, for plaintiff appellant.
Futrelle & Baddour, by Philip A. Baddour, Jr., Goldsboro, for defendant appellees.
Plaintiff asserts that the provisions of G.S. § 30--3(b) should be declared illegal and unconstitutional. This statute provides in substance that whenever a second or successive spouse dissents from the will of his or her deceased spouse, he or she shall take one-half of the amount provided by the Intestate Succession Act for the surviving spouse if the testator has surviving him a lineal descendant by a former marriage but there is no surviving lineal descendant by the second or successive marriage. Plaintiff contends that the statute sets up a category or classification which is illegal and unconstitutional.
The constitutionality of a statute is presumed, and the courts must hold a statute constitutional unless it is in conflict with some constitutional provision. State v. Hales, 256 N.C. 27, 122 S.E.2d 768, 90 A.L.R.2d 804.
The function of a court is to declare what the law is and it is not concerned with what the law ought to be. State v. Ballance, 229 N.C. 764, 51 S.E.2d 731, 7 A.L.R.2d 407.
What the Legislature is not forbidden to do by the Constitution, it should not be prevented from doing by the courts. Manning v. Sims, 308 Ky. 587, 213 S.W.2d 577, 5 A.L.R.2d 1154.
Unless a statute is plainly obnoxious to some constitutional provision, a court will not ordinarily substitute its judgment for that of the Legislature. City of Chattanooga v. Fanburg, 196 Tenn. 226, 265 S.W.2d 15, 42 A.L.R.2d 1200.
Statutes must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears; a mere doubt does not afford sufficient reason for a judicial declaration of invalidity. Smith v. Peterson, 131 Cal.App.2d 241, 280 P.2d 522, 49 A.L.R.2d 1194.
Although there is some authority that the succession to intestate property is a natural or inherent right which, although it may be regulated within reasonable limits, cannot be taken away or substantially impaired, it is generally held that there is no such natural right and that such succession is at the will of and subject to the sovereign political power of the state. The theory of the law is that any participation in the estate of a deceased person is by grace of the sovereign political power, which alone has any natural or inherent right to succeed to such property. 23 Am.Jur.2d, Descent and Distribution, § 11, p. 758.
The Supreme Court of North Carolina has consistently followed the general rule above stated. In Pullen v. Wake County Commissioners, 66 N.C. 361, in an opinion by Rodman, J., we find the following:
'* * * Property itself, as well as the succession of it, is the creature of positive law. The legislative power declares what objects in nature may be held as property; it provides by what forms and on what conditions it may be transmitted from one person to another; it confines the right of inheriting to certain persons whom it defines heirs; and on the failure of such it takes the property to the State as an escheat.
The right to give or take property is not one of those natural and inalienable rights which are supposed to precede all government, and which no government can rightfully impair. There was a time, at least as to gift by will, it did not exist; and there may be a time again when it will seem wise and expedient to deny it. These are the uncontested powers of the Legislature upon which no article of the Constitution has laid its hands to impair them. * * *'
In their brief, plaintiff's counsel contend that the challenged statute is an arbitrary, unjust, unreasonable and illegal discrimination in violation of the Fourteenth Amendment of the Federal Constitution and of section 17 of Article I of the Constitution of North Carolina. In Motley v. State Board of Barber Examiners, 228 N.C. 337, 45 S.E.2d 550, 175 A.L.R. 253, plaintiffs challenged the constitutionality of an act of the General Assembly, contending that it was in violation of the constitutional provisions aforesaid as well as others. Our Supreme Court, in an opinion by Seawell, J., declared:
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State Ex Rel. Ismael R. Ozanne v. Fitzgerald
...in line with the law in other jurisdictions. See Murphy v. Collins, 20 Ill.App.3d 181, 312 N.E.2d 772 (1974); Vinson v. Chappell, 3 N.C.App. 348, 164 S.E.2d 631 (1968); State v. Sathre, 110 N.W.2d 228 (N.D.1961); Collins v. Horten, 111 So.2d 746 (Fla.Dist.Ct.App.1959); Maryland–Nat'l Capita......
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State v. Fitzgerald
...completely in line with the law in other jurisdictions. See Murphy v. Collins, 312 N.E.2d 772 (Ill. App. Ct. 1974); Vinson v. Chappell, 164 S.E.2d 631 (N.C. Ct. App. 1968); State v. Sathre, 110 N.W.2d 228 (N.D. 1961); Collins v. Horten, 111 So.2d 746 (Fla. Dist. Ct. App. 1959); Maryland-Nat......
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Williams v. Williams
...expression of one thing is the exclusion of another"); the dissent misperceives a change in public policy, see Vinson v. Chappell, 3 N.C.App. 348, 350, 164 S.E.2d 631, 633, aff'd, 275 N.C. 234, 166 S.E.2d 686 (1969) (function of a court is to declare what the law is and not what the law oug......
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Barringer v. Caldwell County Bd. of Educ.
...doubt [as to constitutionality] does not afford sufficient reason for a judicial declaration of invalidity." Vinson v. Chappell, 3 N.C.App. 348, 350, 164 S.E.2d 631, 633 (1968). In addition, petitioner's assertion notwithstanding, the United States Supreme Court has held that a civil statut......