Johnson v. Blackwelder

148 S.E.2d 30 (1966)

267 N.C. 209

J. Arthur JOHNSON et al. v. Lela J. BLACKWELDER, Administratrix of J. M. Blackwelder, Deceased, and Lela J. Blackwelder, Individually.

No. 610.

Supreme Court of North Carolina.

May 4, 1966.

*31 Hartsell, Hartsell & Mills and K. Michael Koontz, Concord, for plaintiff appellants.

Alexander & Brown, Kannapolis, and Williams, Willeford & Boger, Concord, for defendant appellees.

BOBBITT, Justice.

Section 15 of Chapter 879, Session Laws of 1959, known as the Intestate Succession Act, now codified as G.S. Chapter 29, provides: "This Act shall become effective July 1, 1960, and shall be applicable only to estates of persons dying on or after July 1, 1960."

Intestate died June 18, 1962.

G.S. § 29-13 provides: "All the estate of a person dying intestate shall descend and be distributed, subject to the payment of costs of administration and other lawful claims against the estate, and subject to the payment by the recipient of State inheritance taxes, as provided in this chapter."

G.S. § 29-14, in pertinent part, provides: "The share of the surviving spouse shall be as follows: * * * (4) If the intestate is not survived by a child, children or any lineal descendant of a deceased child or children or by a parent, all the net estate." See Tolson v. Young, 260 N.C. 506, 509, 133 S.E.2d 135. There being no lineal descendants, under G.S. § 29-14 the surviving widow was entitled to "all the net estate" of Intestate.

*32 It is well settled that "an estate must be distributed among heirs and distributees according to the law as it exists at the time of the death of the ancestor." 23 Am.Jur. 2d, Descent and Distribution § 21, citing, inter alia, Wilson v. Anderson, 232 N.C. 212, 59 S.E.2d 836, 18 A.L.R.2d 951, and s. c. on rehearing, 232 N.C. 521, 61 S.E.2d 447, 18 A.L.R.2d 959.

Intestate had no vested right in the statutes of descent and distribution in effect prior to the ratification on June 10, 1959, of the Intestate Succession Act. He was charged with knowledge that these statutes were subject to change by the General Assembly. "The power of the Legislature to determine who shall take the property of a person dying subsequent to the effective date of a legislative act cannot be doubted." Bennett v. Cain, 248 N.C. 428, 431, 103 S.E.2d 510, 513, and cases cited.

Plaintiffs base their contention on the allegation that Intestate became mentally incapable of making a will prior to ratification of the 1959 Act and that such mental incapacity continued until his death.

Plaintiffs' contention assumes: Before he became mentally incapable of making a will, Intestate had knowledge of and was pleased with the statutes of descent and distribution; and, if he had made a will, he would have disposed of his estate as provided by the statutes then in effect. He would have been displeased with the provisions of the 1959 Act; and, but for his mental incapacity, would have made a will disposing of his estate as provided by the statutes in effect prior to ratification of the 1959 Act.

The successive assumptions underlying plaintiffs' contention are unwarranted. They relate to matters that lie wholly within the realm of speculation.

The determinative fact is that Intestate made no will. Hence, his estate "shall descend and be distributed" in accordance with the statutes in effect on June 18, 1962, the date of his death, namely, G.S. Chapter 29. The court properly sustained the demurrer; and, it appearing affirmatively that plaintiffs have no cause of action as alleged heirs and distributees of Intestate, properly dismissed the action. Hence, the judgment of the court below is in all respects affirmed.

Affirmed.

MOORE, J., not sitting.