{ "id": 8527676, "name": "IN THE MATTER OF THE ESTATE OF CALVIN LANCASTER TROGDON", "name_abbreviation": "In re the Estate of Trogdon", "decision_date": "1991-01-15", "docket_number": "No. 9021SC232", "first_page": "323", "last_page": "328", "citations": [ { "type": "official", "cite": "101 N.C. App. 323" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "13 ALR3d 486", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "225 S.E.2d 324", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "parenthetical": "where the court said: \"In some cases evidence of opportunity and incriminating or improper circumstances, without evidence of inclination or adulterous disposition, may be such as to lead a just and reasonable man to the conclusion of adulterous intercourse.\"" } ], "opinion_index": 0 }, { "cite": "290 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560385, 8560421, 8560434, 8560371, 8560405 ], "year": 1976, "pin_cites": [ { "parenthetical": "where the court said: \"In some cases evidence of opportunity and incriminating or improper circumstances, without evidence of inclination or adulterous disposition, may be such as to lead a just and reasonable man to the conclusion of adulterous intercourse.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0095-02", "/nc/290/0095-04", "/nc/290/0095-05", "/nc/290/0095-01", "/nc/290/0095-03" ] }, { "cite": "70 N.C. App. 459", "category": "reporters:state", "reporter": "N.C. App.", "opinion_index": 0 }, { "cite": "289 S.E.2d 868", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "869" } ], "opinion_index": 0 }, { "cite": "56 N.C. App. 725", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523940 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/56/0725-01" ] }, { "cite": "222 S.E.2d 704", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "706" } ], "opinion_index": 0 }, { "cite": "28 N.C. App. 713", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552191 ], "year": 1976, "pin_cites": [ { "page": "716" } ], "opinion_index": 0, "case_paths": [ "/nc-app/28/0713-01" ] }, { "cite": "327 S.E.2d 900", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 336", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720772, 4721849, 4724859, 4723292, 4723999 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0336-03", "/nc/313/0336-05", "/nc/313/0336-04", "/nc/313/0336-01", "/nc/313/0336-02" ] }, { "cite": "319 S.E.2d 680", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1984, "pin_cites": [ { "page": "683" } ], "opinion_index": 0 }, { "cite": "70 N.C. App. 458", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522909 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "462" } ], "opinion_index": 0, "case_paths": [ "/nc-app/70/0458-01" ] }, { "cite": "33 S.E.2d 136", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1945, "opinion_index": 0 }, { "cite": "225 N.C. 13", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8597368 ], "year": 1945, "opinion_index": 0, "case_paths": [ "/nc/225/0013-01" ] }, { "cite": "318 S.E.2d 244", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "246", "parenthetical": "quoting 98 C.J.S. Witnesses \u00a7 455, at 308 (1957)" }, { "page": "246" } ], "opinion_index": 1 }, { "cite": "69 N.C. App. 655", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526821 ], "year": 1984, "pin_cites": [ { "page": "657-58", "parenthetical": "quoting 98 C.J.S. Witnesses \u00a7 455, at 308 (1957)" } ], "opinion_index": 1, "case_paths": [ "/nc-app/69/0655-01" ] } ], "analysis": { "cardinality": 642, "char_count": 12020, "ocr_confidence": 0.75, "pagerank": { "raw": 5.8591662004228935e-08, "percentile": 0.36531531374995224 }, "sha256": "3693cb26e8f092dccf78ea7b3fd747916e6827a1f51f5da4fcb712931690f2e7", "simhash": "1:b54344589609b64a", "word_count": 1995 }, "last_updated": "2023-07-14T19:54:53.681770+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge Wells concurs.", "Judge COZORT dissents." ], "parties": [ "IN THE MATTER OF THE ESTATE OF CALVIN LANCASTER TROGDON" ], "opinions": [ { "text": "JOHNSON, Judge.\nThe testimony presented at the hearing tended to show the following facts. Appellant-wife and deceased were married for the second time on 14 June 1983 and remained lawfully married at the time of his death on 17 April 1988. Prior to this marriage, the husband was involved in a motorcycle accident which left him a quadriplegic. After the marriage, the wife and husband moved into a house which was built to accommodate the husband\u2019s physical condition. The wife left the marital home on 11 March 1985 and moved into the Village Apartments. At some time thereafter, Doug Winfrey moved into her apartment. Petitioner\u2019s son, the heir and administrator of the husband\u2019s estate, testified that petitioner told him she left the marital home because she just couldn\u2019t put up with it. He further testified to her saying that Doug Winfrey moved into her apartment because they couldn\u2019t see paying rent for two different apartments. Petitioner claimed her fifth amendment right and refused to answer any questions concerning the apartment. A private investigator testified that on 28 and 29 October 1987 he observed petitioner and Doug Winfrey remain together in the apartment during the night and leave together in the morning.\nJudge Ross found from the evidence that petitioner was barred by G.S. \u00a7 31A-l(a)(2) from receiving a year\u2019s allowance in the personal property of her spouse.\nThe issue on appeal is whether the trial court erred in finding that the petitioner committed adultery and is therefore barred from receiving a year\u2019s allowance, when there was evidence of opportunity to commit adultery, in the form of an extended cohabitation, but no direct evidence of adultery and no other evidence of an inclination to commit adultery.\nSpecific acts which will bar surviving spouses, parents, slayers and others from exercising their rights in the property of the deceased are found in Chapter 15A of the, N.C. General Statutes. As to spouses, every surviving spouse of an intestate or of a testator, whether or not he has dissented from the will, is entitled, out of the personal property of the deceased spouse, to an allowance of $5,000 for his support for one year after the death of the deceased spouse. G.S. \u00a7 30-15. However, a \u201cspouse who voluntarily separates from the other spouse and lives in adultery and such has not been condoned\u201d is barred from receiving the year\u2019s allowance. G.S. \u00a7\u00a7 31A-1(a)(2), 31A-1(b)(4). Chapter 31A is to be construed broadly so as to effect the policy of this State that no person shall be allowed to profit by his own wrong. G.S. \u00a7 31A-15.\nAdultery may be proved by direct evidence but for obvious reasons is usually proved by circumstantial evidence. State v. Davenport, 225 N.C. 13, 33 S.E.2d 136 (1945). North Carolina follows the majority rule that where proof of adultery is by circumstantial evidence there must be proof of both opportunity and inclination to commit adultery. 1 R. Lee, N.C. Family Law \u00a7 65 (4th ed. 1979 and Supp. 1989). Wallace v. Wallace, 70 N.C. App. 458, 319 S.E.2d 680 (1984), disc. rev. denied, 313 N.C. 336, 327 S.E.2d 900 (1985). In the most recent case to consider the issue it was explicitly held that in order to establish adultery, there must be evidence to show both opportunity and inclination to commit the act and that evidence of opportunity alone is not enough. Id. The Wallace Court specifically criticized a previous decision where it had held that circumstantial evidence of opportunity together with improper circumstances, but without evidence of inclination, was sufficient to go to the jury. See Owens v. Owens, 28 N.C. App. 713, 716, 222 S.E.2d 704, 706, disc. rev. denied, 290 N.C. 95, 225 S.E.2d 324 (1976) (where the court said: \u201cIn some cases evidence of opportunity and incriminating or improper circumstances, without evidence of inclination or adulterous disposition, may be such as to lead a just and reasonable man to the conclusion of adulterous intercourse.\u201d). In Owens, plaintiff husband presented evidence that the defendant wife was living with another man for two months, that each morning the man left the house about 8:00 a.m. and that the two of them were seen together buying clothes. The Owens Court found this evidence sufficient to take the case to the jury.\nIn Horney v. Horney, 56 N.C. App. 725, 289 S.E.2d 868 (1982), we again faced the question of the sufficiency of evidence and being \u201cconcerned that [the] lack of a clear standard has resulted in precisely that which this Court and our Supreme Court have repeatedly held to be impermissible \u2014 trial by \u2018suspicion and conjecture,\u2019 \u201d we attempted to \u201cdraw a more definite line\u201d between permissible inference and mere conj\u00e9eture. Id. at 727, 289 S.E.2d at 869. In Homey, plaintiffs evidence tended to show that the defendant husband had a friendly relationship with another woman, that they were alone together on several occasions in the woman\u2019s office and on at least one occasion in her home, that she made phone calls to him when he was out of town on business, that the husband was often away from home on Saturday afternoons, and that during a reconciliation period the husband refused to sleep with the wife and was often away in the evenings. The Homey Court held that this was insufficient evidence to go to the jury but suggested in dicta that had there been evidence of other suspicious circumstances such as being together very late at night, in state of undress, or evidence of feelings of love or of affectionate behavior, the result would have been different.\nIn Wallace, this Court reviewed the Owens and Homey decisions and concluded:\nWe are persuaded that the \u201cmore definite line\u201d needed to be drawn in adultery cases is to require that in order to establish adultery, the evidence, whether circumstantial or direct, must tend to show both opportunity and inclination to engage in sexual intercourse and that when the evidence shows no more than an opportunity, an issue of adultery should not be submitted.\n70 N.C. App. at 462, 319 S.E.2d at 683. In Wallace, the plaintiff\u2019s evidence showed that the defendant left a farmhouse with a woman not his wife at 10:30 in the morning, entered the same motel that the woman later entered, drove with her to the airport and to a restaurant, remained overnight in the same motel and remained overnight in his condominium with the woman. The Court held that this evidence supported only an inference that defendant had an opportunity to engage in adulterous conduct but did not allow a reasonable inference as to defendant\u2019s inclination to engage in adultery. Finding that the evidence failed to show an inclination, the Court held that the trial court erred in denying defendant\u2019s motion for a directed verdict.\nIn the case sub judice, plaintiff clearly presented sufficient evidence as to the opportunity prong of the test. However, there was no evidence of any inclination on the part of the wife to engage in an adulterous relationship with her \u201capartment-mate\u201d aside from the extended cohabitation itself. Plaintiff\u2019s own evidence was that the spouse shared her apartment with Mr. Winfrey for economic reasons. Aside from the extended cohabitation, there was no evidence of inclination to engage in adultery which could support an inference of adultery unless resort is made to the \u201csuspicion and conjecture\u201d which this Court has attempted to avoid by its insistence on evidence of inclination as well as opportunity. Wallace, 70 N.C. App. 459, 319 S.E.2d 680.\nWe find that plaintiff\u2019s evidence on the issue of adultery must fail. The decision of the trial court finding the wife barred from receiving the year\u2019s allowance is\nReversed.\nJudge Wells concurs.\nJudge COZORT dissents.", "type": "majority", "author": "JOHNSON, Judge." }, { "text": "Judge COZORT\ndissenting.\nI disagree with the majority\u2019s holding that there was insufficient evidence to support the trial court\u2019s decision that the wife\u2019s adultery barred her from receiving a year\u2019s allowance.\nThe administrator\u2019s evidence showed that the wife left her husband in March of 1985. At some point during 1985, Doug \u201cCookie\u201d Winfrey moved into an apartment with the wife. The wife admitted to her son that she and Mr. Winfrey were living together. The son testified that his mother and Mr. Winfrey were still living together on the date of the hearing below, which was 1 December 1988. The decedent died on 17 April 1988. Thus, there was ample evidence that the wife was living in an apartment with another man for the last two to three years of her husband\u2019s life.\nThe wife was called by the administrator as an adverse witness. When she was asked whether someone moved into the apartment with her, and whether Doug Winfrey lived with her, she refused to answer on the grounds that she might incriminate herself. The wife\u2019s invocation of the Fifth Amendment to the United States Constitution can be used against her in a civil proceeding, and the finder of fact can use her refusal to answer to infer that the testimony would have been unfavorable to her. In Fedoronko v. American Defender Life Ins. Co., our Court quoted with approval this language from C.J.S.:\n\u201c[WJhile the claim of privilege may not be used against defendant [or a witness] in a subsequent criminal prosecution, an inference that his testimony would have been unfavorable to him is available to his opponent in a civil cause in which defendant [or a witness] pleads the privilege. . . .\u201d\n69 N.C. App. 655, 657-58, 318 S.E.2d 244, 246 (1984) (quoting 98 C.J.S. Witnesses \u00a7 455, at 308 (1957)). The Court summarized the rule as follows:\nThe relevant principle to be derived is that a witness\u2019s silence can provide the basis for an inference by the factfinder, even though it cannot be used as evidence from which to find him guilty.\nId. at 658, 318 S.E.2d at 246.\nWhen the wife refuses to answer questions about her living arrangements, on the grounds that it may tend to incriminate her, in the face of evidence that she has been living with a man not her husband for two to three years, there is sufficient evidence for the trial court to infer that she has committed adultery. To hold otherwise defies common sense in favor of a hypertechnical legal principle.\nI vote to affirm the trial court.", "type": "dissent", "author": "Judge COZORT" } ], "attorneys": [ "Bailey and Thomas, by Wesley Bailey, David W. Bailey, Jr. and John R. Fonda, for petitioner-appellant.", "Morrow, Alexander, Task, Long & Black, by Clifton R. Long, Jr., for respondent-appellee." ], "corrections": "", "head_matter": "IN THE MATTER OF THE ESTATE OF CALVIN LANCASTER TROGDON\nNo. 9021SC232\n(Filed 15 January 1991)\nExecutors and Administrators \u00a7 23 (NCI3d); Fornication and Adultery \u00a7 4 (NCI3d)\u2014 year\u2019s allowance \u2014 forfeiture for adultery-evidence of adultery insufficient\nThe decision of the trial court finding that a wife was barred from receiving the surviving spouse\u2019s year\u2019s allowance under N.C.G.S. \u00a7 30-15 (1984) was reversed where, aside from extended cohabitation, there was no evidence of inclination to engage in adultery which could support an inference of adultery unless resort is made to the \u201csuspicion and conjecture\u201d which the Court of Appeals has attempted to avoid by its insistence on evidence of inclination as well as opportunity.\nAm Jur 2d, Descent and Distribution \u00a7 133.\nAdultery on part of surviving spouse as affecting marital rights in deceased spouse\u2019s estate. 13 ALR3d 486.\nJudge COZORT dissenting.\nAppeal by petitioner from judgment entered 19 January 1990 by Judge Thomas W. Ross in FORSYTH County Superior Court. Heard in the Court of Appeals 16 November 1990.\nThis case concerns the granting of a surviving spouse\u2019s year\u2019s allowance under G.S. \u00a7 30-15. Petitioner-appellant Patricia McNulty Trogdon, wife of Calvin Lancaster Trogdon, deceased, petitioned for a year\u2019s allowance following the death of her husband. The allowance was granted by Magistrate Vannoy. Respondent-appellee Bradley Floyd Trogdon, Administrator of the Estate of Calvin Lancaster Trogdon, appealed to the superior court. The matter was heard de novo by Judge Ross. From entry of judgment setting aside the assignment, petitioner appeals.\nBailey and Thomas, by Wesley Bailey, David W. Bailey, Jr. and John R. Fonda, for petitioner-appellant.\nMorrow, Alexander, Task, Long & Black, by Clifton R. Long, Jr., for respondent-appellee." }, "file_name": "0323-01", "first_page_order": 351, "last_page_order": 356 }