Phillips v. PhillipsAnnotate this Case
238 S.E.2d 790 (1977)
34 N.C. App. 428
Marie Cannon PHILLIPS v. Howard Lee PHILLIPS, Jr., Individually and as Executor of the Estate of Howard Lee Phillips, Howard Lee Phillips, III, John Bradford Phillips, and Edgar W. Tanner, Clerk of the Superior Court of Rutherford County.
Court of Appeals of North Carolina.
November 16, 1977.
*791 Roberts, Caldwell & Planer, P. A. by Joseph B. Roberts, III, Gastonia, for plaintiff.
George R. Morrow and Robert W. Wolf, Forest City, for defendants.
*792 MARTIN, Judge.
The question raised by defendants on this appeal is whether intestate share, as used in G.S. 30-1(a) for purposes of establishing the right of a surviving spouse to dissent from the will of the deceased spouse, is to be determined from the testator's net estate or from his gross estate valued as of the date of death. Defendants contend that the trial judge erred in concluding that plaintiff was entitled to dissent in that the trial judge computed plaintiff's intestate share from decedent's gross estate rather than making such determination from his net estate as required by G.S. 29-14(1). In considering defendants' contention, we note at the outset that the trial judge's conclusion of law does not indicate the manner in which it was reached and thus, we review only his result in light of the applicable law.
The determination of this figure intestate share is essential to the establishment of the right to dissent as prescribed by G.S. 30-1(a). Under G.S. 30-1(a), the right of a surviving spouse to dissent arises when the aggregate value of property passing under the will and outside the will to the surviving spouse as a result of the testator's death is (1) less than the intestate share of such spouse, or (2) less than one-half the net estate of the testator where neither lineal descendant nor parent survive. Thus, where the testator is survived by his spouse and a lineal descendant, the right of the surviving spouse to dissent is established by the determination and comparison of two figures: (1) the aggregate value of property passing under the will and outside the will to the surviving spouse; and (2) the intestate share of the surviving spouse. In the instant case, as plaintiff received nothing under the decedent's will and $70,000 in insurance proceeds, the aggregate value of property passing under and outside the will to plaintiff is $70,000. Under the statutory scheme set out by G.S. 30-1(a), the only figure remaining to be determined in order to establish plaintiff's right to dissent is her intestate share. If, upon proper determination of this figure, the $70,000 in proceeds is less than plaintiff's intestate share, plaintiff has a statutory right to dissent from the decedent's will. G.S. 30-1(a)(1).
The determination of a surviving spouse's intestate share is governed in the first instance by the "Intestate Succession Act" (Chapter 29 of the General Statutes). Under the provisions of the Act, when an intestate is survived by only one child the share of the surviving spouse is one-half of the decedent's net estate, including one-half of the personal property and one-half undivided interest in the real property. G.S. 29-14(1). Net estate is defined by statute as the estate of a decedent exclusive of family allowances, costs of administration, and all lawful claims against the estate. G.S. 29-2(5). Thus, a literal interpretation of the term "intestate share" as it is employed by G.S. 30-1(a) for purposes of establishing the right to dissent requires intestate share to be computed from net estate.
This interpretation is less clear in view of the language of G.S. 30-1(c) which provides that:"For the purpose of establishing the right to dissent, the estate of the deceased spouse and the property passing outside of the will to the surviving spouse as a result of the death of the testator shall be determined and valued as of the date of his death, which determination and value the executor or administrator with the will annexed and the surviving spouse are hereby authorized to establish by agreement subject to approval by the clerk of the superior court. If such personal representative and the surviving spouse do not so agree upon the determination and value, or if the surviving spouse is the personal representative, or if the clerk shall be of the opinion that the personal representative may not be able to represent the estate adversely to the surviving *793 spouse, the clerk shall appoint one or more disinterested persons to make such determination and establish such value. Such determination and establishment of value made as herein authorized shall be final for determining the right of dissent and shall be used exclusively for this purpose." (Emphasis added.)
The question now before this Court is whether the language of G.S. 30-1(c) emphasized above requires intestate share to be determined for purposes of establishing the right to dissent from decedent's gross estate valued as of the date of his death rather than from net estate as required by G.S. 29-14(1). In our view, G.S. 30-1(c) does not so affect the determination of intestate share for purposes of establishing the right to dissent. We hold that in establishing the right of a surviving spouse to dissent pursuant to G.S. 30-1(a)(1), the determination of intestate share is based on the value of the decedent's net estate as provided in Chapter 29 of the General Statutes.
In holding that G.S. 30-1(c) does not effectuate a change in the manner in which intestate share is to be determined, we do not render the statute without force or effect. We find that G.S. 30-1(c) provides a method for determining the value of benefits passing to the surviving spouse under and outside the will of the deceased spouse, which values are used to ascertain the "aggregate value" figure essential to the establishment of the right to dissent. Unlike the provisions in Chapter 29 providing for the determination of intestate share from net estate, no other statutory provision exists with respect to the time and manner of determining these values which comprise the "aggregate value" figure. Thus, it is clear that the legislature intended G.S. 30-1(c) to remove this gap in the statutory scheme. However, it is not clear, and we do not so find, that G.S. 30-1(c) was also intended to change for purposes of establishing the right to dissent the method prescribed by Chapter 29 for determining intestate share. In this respect, we note that G.S. 30-1(a)(2) refers to the "net estate" of the deceased spouse for purposes of determining the right to dissent of a surviving spouse where the deceased spouse is survived by neither lineal descendant nor parent. This is further indication that the legislature found no inherent conflict between the concept of "net estate" and the establishment of the right to dissent.
We are not unmindful of the cases which hold generally that the right to dissent can be established once the determination and valuation prescribed by G.S. 30-1(c) has been made. In re Cox, 32 N.C.App. 765, 233 S.E.2d 926 (1977); In re Estate of Connor, 5 N.C.App. 228, 168 S.E.2d 245 (1969). Such language incorrectly suggests that all the figures necessary to establish the right to dissent can be determined as of the date of decedent's death pursuant to G.S. 30-1(c). In our view, only the first figure in the statutory scheme the "aggregate value" of property passing to the surviving spouse under and outside the will can be determined pursuant to G.S. 30-1(c). The other essential figure intestate share can be determined only at such time that "net estate" is ascertainable. We recognize that this may delay the final determination of a surviving spouse's right to dissent past the six month statute of limitation for filing a dissent. G.S. 30-2(a). However, the filing procedure prescribed by G.S. 30-2(a) is merely a limitation on the time within which a surviving spouse must note her dissent of record. It is not conditioned upon or determinative of the right to dissent which may not be established until some later date. In re Cox, supra. Thus, a surviving spouse can and, in fact, must file her dissent within the statutory time period even though her right to dissent is not finally established until "net estate" is ascertained.
Applying the foregoing principles to the case at bar, we find that plaintiff is entitled to dissent from the will of her deceased husband and accordingly, we affirm *794 the judgment of the trial court. The record discloses that the estate of Howard Lee Phillips was valued as of the date of his death at $302,971.50. The record further reveals that the real estate was encumbered by mortgages totaling $82,594.35 and that federal estate tax, including interest and penalty charges, was estimated at $51,711.45. These figures constitute "lawful claims against the estate" and must be deducted to determine net estate. G.S. 29-2(5). From the deduction of these amounts, net estate can be reasonably ascertained in the amount of $168,665.90 for the purpose of computing the plaintiff's intestate share and establishing her right to dissent. Pursuant to G.S. 29-14(1), plaintiff's intestate share in the instant case is one-half of the sum ascertained as net estate or $84,332.85. Since the aggregate value of property passing to plaintiff under and outside her deceased spouse's will $70,000 is less than her intestate share, plaintiff is entitled to dissent from the will.
Finally, we note that for purposes of determining the actual share to be distributed to plaintiff a successive surviving spouse as a result of her dissent, G.S. 30-3(b) is controlling and states that she is entitled to one-half of her intestate share or one-fourth of decedent's net estate.
The judgment entered by the trial judge is
BRITT and HEDRICK, JJ., concur.NOTES
 The 1975 amendment to G.S. 30-1(a), which makes special provision for determination of the right to dissent where the surviving spouse is a successive or second spouse, is applicable only to the estates of decedents dying after 1 October 1975, and thus, does not apply to the instant case.