Matter of Estate of Etheridge

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235 S.E.2d 924 (1977)

In the Matter of the ESTATE of Annie Mae G. ETHERIDGE, Deceased.

No. 761SC881.

Court of Appeals of North Carolina.

July 6, 1977.

Certiorari Denied August 23, 1977.

*926 Twiford, Seawell, Trimpi & Thompson by Russell E. Twiford and John G. Trimpi, Elizabeth City, for petitioner-appellant.

White, Hall, Mullen & Brumsey by Gerald F. White, Elizabeth City, for respondents-appellees.

Certiorari Denied by Supreme Court August 23, 1977.

MARTIN, Judge.

Petitioner does not contest the trial court's ruling that Item X of the will was valid. He does, however, contend that the court erred in concluding that the intestate share of Doc Etheridge, Sr. should first be satisfied from the lands devised to Doc Etheridge, Jr. and his sons, Joe and Owen.

At the threshold of our considerations in this case, we are confronted with the question of whether a real party in interest was substituted in this action when Doc Etheridge, Sr. died. Every action must be prosecuted in the name of the real party in interest. G.S. 1-57.

If, as in the case at bar, there is a death of a party to an action, then G.S. 1A-1, Rule 25(a) provides for a substitution of parties. It requires the substitution of either a personal representative or a successor in interest. In deciding whether to substitute a personal representative, or a successor in interest, or both, it is of course necessary to be certain that the substituted party is a real party in interest. G.S. 1-57. In the instant case, the original petitioner, Doc Etheridge, Sr., died on 15 November 1975. The executor of his estate, Doc Etheridge, Jr., was then substituted as the petitioner while no effort was made to substitute his successors in interest, the beneficiaries under his will.

We caused a certified copy of the will of Doc Etheridge, Sr. to be sent up and made a part of the record in the case at bar. In the will, all the real property of the testator is devised to Doc Horace Etheridge, Jr.

Upon filing his dissent to the will, Doc Etheridge, Sr. became vested, as of the date of testatrix's death, with title to that part of her real property allowed him by statute as surviving spouse. We do not agree with appellees that the appeal should be dismissed on the ground that appellant is not aggrieved. Appellees cite the case of Bank v. Melvin, 259 N.C. 255, 130 S.E.2d 387 (1963) as support for their position. In that case, the executor of Adam Melvin's estate brought forth an appeal concerning the court's distribution of his estate following his wife's dissent from his will. Our Supreme Court held that the executor was not aggrieved by the superior court's judgment and could not appeal. In the case at bar, however, Doc Etheridge, Sr.'s wife predeceased him and his estate was a beneficiary of her estate. As such, his estate was aggrieved by the judgment, and it was entitled to appeal through its executor, Doc Etheridge, Jr.

G.S. 30-3(a) provides that a dissenting spouse takes the same share of the deceased spouse's property as if the deceased had died intestate. Under G.S. 29-14(2) the intestate share in the instant case includes "a one third undivided interest in the real property." Appellants argue that the provisions of the will should not be given any consideration. They contend that the dissenting spouse takes his interest in the decedent's property in spite of the will, not under the will, and there is no reason why the language of the will should be controlling. We disagree.

Under Trust Co. v. Waddell, 234 N.C. 454, 67 S.E.2d 651 (1951), when a surviving *927 spouse dissents from a will, the intestate share should be allocated so as to cause the least possible disruption of the decedent's plan for the distribution of his estate. In partitioning testatrix's property, her will should be given consideration, and insofar as possible the beneficiaries of the will should receive the property testatrix intended for them to receive. Item XI of the will plainly indicates that testatrix's primary intent in disposing of her estate was to give the Shaw Farm to Fred and Ray. She also intended to give Doc Etheridge, Sr. a life estate in the farm, but Items X and XI establish that the gift to Fred and Ray was of more importance to her than the gift to her husband.

G.S. 29-14 does not purport to give the dissenting spouse the right to select the particular property he or she will receive in opposition to the dominant intent expressed in the will. The dominant intent expressed in the will is still controlling so long as it can be carried out and leave the dissenting spouse with the prescribed fractional interest in value in the estate.

Following the settled principle that the will shall be so construed that the dissent shall effect the devisees to the least possible degree and the general scope or plan of distribution be carried out and effectuated so far as possible, we hold that the specific devises, which lapsed as a result of the dissent, should be the first properties used to satisfy the intestate share belonging to the estate of Doc Horace Etheridge, Sr. The trial court so provided and his judgment is affirmed.

We have reviewed defendant's remaining assignments of error and find them to be without merit.

Affirmed.

BRITT and PARKER, JJ., concur.