Matter of Estate of Outen

336 S.E.2d 436 (1985)

In the Matter of the ESTATE OF Rufus Franklin OUTEN, Sr., Deceased.

No. 8526SC451.

Court of Appeals of North Carolina.

November 19, 1985.

Ray Rankin, Charlotte, for dissenting spouse, appellee.

Rodney S. Toth, Charlotte, for respondents, appellants.

*437 HEDRICK, Chief Judge.

Respondents contend that the assistant clerk erred in finding that the agreement allegedly entered into between the dissenting widow and the co-executors was not a "family settlement agreement" and in allowing the dissent pursuant to Article 1 of Chapter 30 of the General Statutes of North Carolina.

"To establish the right to dissent, a spouse must make a timely filing pursuant to G.S. 30-2, and must show an entitlement to that right under G.S. 30-1." In re Kirkman, 302 N.C. 164, 166, 273 S.E.2d 712, 714 (1981). The right time, manner and effect of the filing and recording of a dissent to a will are all matters within the probate jurisdiction of the clerk of superior court. In re Snipes, 45 N.C.App. 79, 262 S.E.2d 292 (1980). In discussing an appeal from a clerk with respect to a dissent, this Court held in In re Estate of Swinson that:

When the order or judgment appealed from does contain specific findings of fact or conclusions to which an appropriate exception has been taken, the role of the trial judge on appeal is to apply the whole record test. If there is evidence to support the findings of the Clerk, the judge must affirm. If a different finding could be supported on the same evidence, the trial judge cannot substitute his own finding for that of the Clerk. It is not a de novo hearing. The trial court is sitting as an appellate court, since its jurisdiction is derivative.

In re Estate of Swinson, 62 N.C.App. 412, 415, 303 S.E.2d 361, 363 (1983). Our standard of review on this appeal is the same as that of the judge of superior court.

We agree with the assistant clerk of superior court that the alleged agreement between the dissenting widow and the estate was not a "family settlement agreement," because it was never executed by all of the beneficiaries under the will. Family settlement agreements, of course, are favored by the law, Holt v. Holt, 304 N.C. 137, 282 S.E.2d 784 (1981); however, such agreements are invalid unless all who receive under the will join in the agreement. In re Will of Pendergrass, 251 N.C. 737, 112 S.E.2d 562 (1960). In the present case, two of the beneficiaries under the will did not sign the alleged agreement. The findings made by the assistant clerk of superior court clearly support her conclusion allowing the dissent of Elma Outen pursuant to G.S. 30-1, and the judge of the superior court did not err in affirming the assistant clerk's judgment. The judgment of the superior court is affirmed.

Affirmed.

EAGLES and MARTIN, JJ., concur.