Fullam v. Brock

Annotate this Case

155 S.E.2d 737 (1967)

271 N.C. 145

Algie J. FULLAM, Individually and In his capacity as Administrator c. t. a. of the Estate of Lillian Clark Brock v. Deaver Dunsmore BROCK, Incompetent et al.

No. 117.

Supreme Court of North Carolina.

July 24, 1967.

*739 Parker, McGuire & Baley, by Richard A. Wood, Jr., Asheville, for J. M. Baley, Jr., Guardian of Deaver Dunsmore Brock, incompetent, defendant appellant.

Gudger & Erwin, by Lamar Gudger and Ronald W. Howell, Asheville, for Everett Clark, defendant appellee.

PARKER, Chief Justice.

There is no common-law right to make a will. The right to make a will is not a natural, inalienable, inherited, fundamental, or inherent right, and it is not one guaranteed by the Constitution. The right to make a will is conferred and regulated by statute. Paul v. Davenport, 217 N.C. 154, 7 S.E.2d 352; 94 C.J.S., Wills § 3.

In Irving Trust Co. v. Day, 314 U.S. 556, 62 S. Ct. 398, 86 L. Ed. 452, the Court said, inter alia: "Rights of succession to the property of a deceased, whether by will or by intestacy, are of statutory creation, and the dead hand rules succession only by sufferance. Nothing in the Federal Constitution forbids the legislature of a state to limit, condition, or even abolish the power of testamentary disposition over property within its jurisdiction."

The General Assembly has power to enact a statute not authorized by the present Constitution where the statute is *740 passed in anticipation of a constitutional amendment authorizing it or provides that it shall take effect upon the adoption of such constitutional amendment. 16 Am.Jur.2d, Constitutional Law, § 180.

In Bennett v. Cain, 248 N.C. 428, 103 S.E.2d 510, the Court said, with plenary citation of authority to support the statement: "The power of the Legislature to determine who shall take the property of a person dying subsequent to the effective date of the legislative act cannot be doubted."

This is said in Annot. 171 A.L.R. 1075: "A Legislature has power to enact a statute not authorized by the present Constitution where the statute is passed in anticipation of a constitutional amendment authorizing it or provides that it shall take effect upon the adoption of such a constitutional amendment." In support of the statement, cases are cited from the Supreme Court of the United States, and from nine states.

In Druggan v. Anderson, 269 U.S. 36, 46 S. Ct. 14, 70 L. Ed. 151, the Court considered the Eighteenth Amendment to the Federal Constitution which was ratified and became effective 16 January 1916, but provided that prohibition therein declared should not become operative until after one year. The National Prohibition Act was passed after the ratification of the amendment, but before the expiration of the year, and provided that it was not to go into effect until after the amendment did. The Court in upholding the act and holding that it went into effect on 16 January 1920, made the incidental observation that "[i]ndeed it would be going far to say that while the fate of the Amendment was uncertain Congress could not have passed a law in aid of it, conditioned upon the ratification taking place."

In Dudley v. Staton, 257 N.C. 572, 126 S.E.2d 590, (opinion filed 10 July 1962), this Court held, as correctly summarized in the headnote in the North Carolina Reports:

"G.S. 30-1, G.S. 30-2, and G.S. 30-3, insofar as they give a husband the right in certain instances to dissent from his deceased wife's will and take a specified share of her estate are unconstitutional to the extent that they diminish pro tonto [sic] a devise of her separate estate in accordance with a will executed by her. Constitution of North Carolina, Art. X, § 6."

To abrogate the effect of that decision, and to make the rights of husbands and wives the same in each other's separate property, the General Assembly in its 1963 Session enacted Chapter 1209 which is entitled: "AN ACT TO AMEND ARTICLE X, SECTION 6 OF THE CONSTITUTION OF NORTH CAROLINA, WITH RESPECT TO A MARRIED WOMAN'S RIGHT TO TRANSFER HER SEPARATE PROPERTY BY DEED AND BY WILL AND TO EXERCISE POWERS OF ATTORNEY CONFERRED UPON HER BY HER HUSBAND." This Act of the General Assembly directed the submission of a constitutional amendment at the next general election whereby Article X, Section 6 of the Constitution would be amended to read, in substance: The real and personal property of any female in this State may be devised and bequeathed by her "subject to such regulations and limitations as the General Assembly may prescribe." Section 4½ of this Act provided in substance that in the event a majority of the voters in such general election be in favor of the amendments hereinbefore provided for, G.S. § 52-4 shall be repealed and said repeal shall be effective on the date the Governor certifies the amendments to the Secretary of State. Section 4.1 provided: "From and after the date of certification of the amendments set out in Section 1 of this Act, wherever the word `spouse' appears in the General Statutes with reference to testate or intestate successions, it shall apply alike to both husband and wife." This Act was ratified on 26 June 1963. A majority of votes cast by the qualified voters of this State on 14 *741 January 1964 were in favor of the amendments, and such result was duly certified by the Governor of the State of North Carolina on 6 February 1964.

The General Assembly at its 1965 Session enacted Chapter 849, which is entitled: "AN ACT TO RE-ENACT G.S. 30-1, 30-2, AND 30-3, RELATING TO DISSENT FROM WILLS." Section 2 of this Act reads as follows:

"This re-enactment of G.S. 30-1, G.S. 30-2 and G.S. 30-3 shall not be construed as a legislative determination that, with respect to the right of a husband to dissent from his wife's will, these Sections were invalid between the date of certification of the amendments to Article X, Section 6 and the date of ratification of this Act. This intention is manifested by the following language of Section 4.1 of Chapter 1209 of the Session Laws of 1963: `From and after the date of certification of the amendments set out in Section 1 of this Act, wherever the word "spouse" appears in the General Statutes with reference to testate or intestate succession, it shall apply alike to both husband and wife.'"

Section 4 of this Act provides that it shall be in full force and effect from and after its ratification. It was ratified on 8 June 1965.

Pursuant to Chapter 1209, Session Laws 1963, the constitutional amendment to Article X, Section 6 was submitted to a vote of the people on 14 January 1964, and was approved, and the result of the vote was duly certified on 6 February 1964. In Section 4 of the Act it is expressly provided that if a majority of the voters cast their votes in favor of the amendment, "the amendment so certified shall be in full force and effect from and after the date of certification." The 1965 Session of the General Assembly re-enacted the law of dissent in its 1965 Session by passing Chapter 849, Session Laws 1965, which Act was ratified on 8 June 1965. The dissent of Deaver Dunsmore Brock in this case was filed on 6 July 1965.

At the time of testatrix's death, the State Constitution, Article X, Section 6, read in part: "The real and personal property of any female in this State acquired before marriage * * *, shall be and remain the sole and separate estate and property of such female * * * and may be devised and bequeathed and conveyed by her subject to such regulations and limitations as the General Assembly may prescribe."

The testatrix here died on 14 March 1965. At her death the Constitution, Article X, Section 6 had been amended as set forth above. Her absolute power to dispose of her property by will and to deprive her husband of the right to dissent therefrom, had been abrogated by the Legislature and the express vote of the people. "* * * (A)ccording to most authorities, the right to make a testamentary disposition of property is not an inherent, natural, or constitutional right, but is purely a creature of statute, and, as such, is subject to legislative regulation and control, at least in respect of the disposition of real estate. Aptly stated, the dead hand rules succession only by sufferance." 57 Am.Jur., Wills, § 52. Under the facts here no vested rights of plaintiff and Everett Clark have been impaired.

It is our opinion, and we so hold, that the effect of the adoption of the amendment by the voters to Article X, Section 6 of the Constitution was to restore, subject to the qualifications set forth in the statute, the right of the husband to dissent from the will of his wife. See 1 Wiggins, Wills and Administration of Estates in North Carolina, p. 537.

At the time the will of Lillian Clark Brock was probated, her husband Deaver Dunsmore Brock had been legally adjudged incompetent from want of understanding to manage his affairs. As authorized by G.S. § 30-2, as set forth in the 1961 amendment, J. M. Baley, Jr., his general guardian, was *742 authorized to file a dissent for him from his wife's will.

The judgment of the lower court to the effect "that the dissent of Deaver Dunsmore Brock is void and of no force and effect" is

Reversed.