{ "id": 8522082, "name": "JOHN RICHARD MOTHERSHED, Administrator of the Estate of Nettie Mothershed Torrence, Plaintiff v. FRANK L. SCHRIMSHER, Administrator of the Estate of Rupert Fritz Torrence, Defendant", "name_abbreviation": "Mothershed v. Schrimsher", "decision_date": "1992-01-21", "docket_number": "No. 9126SC68", "first_page": "209", "last_page": "214", "citations": [ { "type": "official", "cite": "105 N.C. App. 209" } ], "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": "389 S.E.2d 90", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "326 N.C. 48", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307137, 5308005, 5306311, 5308028, 5309342 ], "year": 1990, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0048-01", "/nc/326/0048-02", "/nc/326/0048-03", "/nc/326/0048-04", "/nc/326/0048-05" ] }, { "cite": "384 S.E.2d 284", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "286" } ], "opinion_index": 0 }, { "cite": "96 N.C. App. 53", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520131 ], "year": 1989, "pin_cites": [ { "page": "55" } ], "opinion_index": 0, "case_paths": [ "/nc-app/96/0053-01" ] }, { "cite": "165 S.E.2d 508", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1969, "pin_cites": [ { "page": "516" }, { "page": "516" } ], "opinion_index": 0 }, { "cite": "3 N.C. App. 485", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555626 ], "weight": 2, "year": 1969, "pin_cites": [ { "page": "496" }, { "page": "496" } ], "opinion_index": 0, "case_paths": [ "/nc-app/3/0485-01" ] }, { "cite": "213 S.E.2d 563", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1975, "pin_cites": [ { "page": "568-69", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "287 N.C. 47", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560994 ], "year": 1975, "pin_cites": [ { "page": "56", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/287/0047-01" ] } ], "analysis": { "cardinality": 515, "char_count": 11332, "ocr_confidence": 0.793, "pagerank": { "raw": 7.796484210511942e-08, "percentile": 0.4571009738405598 }, "sha256": "d09886ee57977e2beed61ea365adde3764fa887243ec7e16c99a3104c7134f28", "simhash": "1:06263631ed7bff40", "word_count": 1889 }, "last_updated": "2023-07-14T19:24:40.355340+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Wells and Walker concur." ], "parties": [ "JOHN RICHARD MOTHERSHED, Administrator of the Estate of Nettie Mothershed Torrence, Plaintiff v. FRANK L. SCHRIMSHER, Administrator of the Estate of Rupert Fritz Torrence, Defendant" ], "opinions": [ { "text": "LEWIS, Judge.\nAt issue in this case is the effect of the North Carolina Slayer Statute\u2019s clause which deems the slayer to have died \u201cimmediately prior\u201d to the victim\u2019s death. The question is whether the Statute establishes the order of death between the slayer and the victim for purposes of distributing both the victim and the slayer\u2019s estate or whether the Statute merely ignores the slayer\u2019s actual date of death for purposes of distributing the victim\u2019s estate.\nNettie and Rupert Torrence were mother and. son. Prior to their deaths, each was the primary heir of the other. Mrs. Torrence was a widow with Rupert her only surviving child. Rupert Torrence never married and has no known children. On 27 January 1989, Mr. Torrence shot his mother and himself but the bodies were not found until 30 January 1989. Though the death certificates for each indicate both died on 30 January 1989, the order of death is unknown. Both died intestate. Plaintiff was named the administrator of Nettie Torrence\u2019s estate, while defendant was named the administrator of Rupert Torrence\u2019s estate. Plaintiff filed a wrongful death action against defendant on 7 August 1989. It was amended by consent to include a second cause of action for a declaratory judgment that Rupert Torrence was a slayer and requested that plaintiff\u2019s intestate be declared her son\u2019s sole heir.\nOn 18 October 1990, Rupert Torrence was adjudicated a slayer under the Statute. Defendant then filed a motion for summary judgment as to the remainder of plaintiff\u2019s second cause of action: i.e., whether plaintiff\u2019s intestate was her son\u2019s sole heir. Later, plaintiff filed a motion to amend the complaint to add a third cause of action seeking equitable relief. Summary judgment was granted in defendant\u2019s favor and the motion to amend was denied. Plaintiff appeals both rulings.\nThe peculiarity in the case at bar lies in the bizarre facts; a murder-suicide, which seems to have terminated the rights of a mother and son to partake in the other\u2019s intestate estate despite the fact that prior to their respective deaths each was the primary heir of the other. Mr. Torrence\u2019s right to inherit as his mother\u2019s heir was terminated by virtue of the North Carolina Slayer Statute (Statute), N.C.G.S. \u00a7 31A-3 through \u00a7 31A-12. His statutory disinheritance is undisputed. At issue is Mrs. Torrence\u2019s right to inherit from her son\u2019s estate. Because the coroner\u2019s report indicates that the Torrences\u2019 order of death is uncertain, plaintiff urges this Court to read the clause in the Statute which deems the slayer to have predeceased the victim as establishing the order of death between the slayer and the victim for purposes of distributing the slayer\u2019s estate. As this would extend the Statute beyond its present boundaries, we decline to do so.\n. The Slayer Statute was enacted to \u201c \u2018take care of every situation in which the slayer may receive any benefit of any kind as a result of the decedent\u2019s death.\u2019 \u201d Quick v. United Ben. Life Ins. Co., 287 N.C. 47, 56, 213 S.E.2d 563, 568-69 (1975) (emphasis added). The Statute bars an intentional killer from gaining any benefit from the victim\u2019s estate. Id. An involuntary killer may be barred from his victim\u2019s estate by resort to the common law principle that a person may not profit by his wrongful acts. Id. Common law remedies are not supplanted by the Slayer Statute, but, are applied only where the Statute does not apply. Id. \u201cThe statute makes no attempt artificially to alter the date of death of the decedent, but [the Statute] provides instead that the actual date of death of the slayer is to be disregarded.\u201d Forth v. Forth, 3 N.C. App. 485, 496, 165 S.E.2d 508, 516 (1969). The roll is called at the victim\u2019s actual date of death and the slayer is not permitted to be counted among the heirs. Id.\nPlaintiff assigns as error the trial court\u2019s summary judgment ruling that Nettie Torrence was not her son\u2019s sole heir and the denial of the motion to amend. Each side argues over the significance of the summary judgment ruling. Plaintiff argues that the ruling precludes Mrs. Torrence\u2019s estate from ever proving that she was her son\u2019s heir. The defendant argues that the ruling merely prevents plaintiff\u2019s intestate from automatically becoming an heir as a \u201cmatter of law\u201d upon Rupert Torrence\u2019s adjudication as a slayer without having to prove her right of inheritance.\nDefendant\u2019s motion for summary judgment asked the court to determine whether the Slayer Statute deemed Rupert Torrence to have predeceased his mother for all purposes or merely for the purpose of distributing his victim-mother\u2019s estate. Defendant\u2019s motion also asked whether Nettie Torrence was an heir \u201cas a matter of law.\u201d The trial court\u2019s ruling (first ruling) stated that the slayer is deemed to have predeceased his victim only for the purpose of distributing the victim\u2019s estate. The confusion lies not in this first ruling, but in the court\u2019s second ruling which stated that Mrs. Torrence is not her son\u2019s \u201cheir at law.\u201d We believe that the court intended to hold, in the second ruling, that Mrs. Torrence did not automatically become her son\u2019s heir \u201cas a matter of law\u201d by virtue of the Slayer Statute\u2019s fiction which deemed Rupert Torrence to have predeceased his victim-mother.\nThe second ruling, as written, asks and answers a question which was not before the court: the descent and distribution of Rupert Torrence\u2019s estate. The second ruling summarily precludes Mrs. Torrence\u2019s administrator from proving that Mrs. Torrence survived her son and as such was his sole heir. Summary judgment may be granted where there are no issues of material fact. N.C.G.S. \u00a7 1A-1, Rule 56 of the N.C. Rules of Civil Procedure. \u201cThe burden of establishing that there is no material factual issue to litigate and [that] summary judgment is appropriate is always upon the movant.\u201d Lynch v. Newson, 96 N.C. App. 53, 55, 384 S.E.2d 284, 286 (1989), disc. rev. denied, 326 N.C. 48, 389 S.E.2d 90 (1990) (citation omitted). Survivorship is a crucial issue in this case. The material facts which Rupert Torrence\u2019s estate had to disprove so as to obtain summary judgment in its favor was that Mrs. Torrence predeceased her son. Summary judgment on the survivorship issue is not properly granted in the case at bar because the limited facts presented do not carry the movant\u2019s burden of showing that no issues of material fact exist. Here, where the sole evidence on record reveals that the order of death between the parties is uncertain, survivorship is a disputed material fact which should be decided by a jury. Hence, the trial court\u2019s second ruling proclaiming Mrs. Torrence \u201cnot an heir at law\u201d was improper because it answered a question which was not asked and because summary judgment as to her right to inherit could not have been properly granted under the facts of this case.\nSummary judgment on the first ruling regarding the Slayer Statute\u2019s effect was properly granted. The Statute deems the slayer to have predeceased his victim only for purposes of excluding the slayer from his victim\u2019s estate. This is evident by both the Statute\u2019s plain language and by statutory construction. The Statute provides that:\nThe slayer shall be deemed to have died immediately prior to the death of the decedent and the following rules shall apply:\n1) The slayer shall not acquire any property or receive any benefit from the estate of the decedent by testate or intestate succession or by common law or statutory right as surviving spouse of the decedent.\n2) Where the decedent dies intestate as to property which would have passed to the slayer by intestate succession, such property shall pass to others next in succession in accordance with the applicable provision of the Intestate Succession Act.\nN.C.G.S. \u00a7 31A-4 (1984). The Statute\u2019s plain language clearly bars the slayer from participating in the victim\u2019s, estate. Nowhere does the Statute authorize the victim to participate in the slayer\u2019s estate. That may or may not occur. The Statute does not indulge the fiction that the slayer\u2019s date of death is other than the actual date of death, but merely establishes a presumption to exclude the slayer. Porth v. Porth, 3 N.C. App. 485, 496, 165 S.E.2d 508, 516 (1969). Had the Statute been enacted for the dual purpose of adjudicating slayer status and for altering the intestate succession of both the slayer and victim, it would have so stated.\nOur reading of the Slayer Statute does not work an injustice in the case at bar. Plaintiff argues that the coroner\u2019s report indicates that the order of death is uncertain and survivorship will, therefore, be difficult to prove. Survivorship is often difficult to prove but the Slayer Statute was not enacted to ease this burden. The Statute is one of exclusion, not of inclusion. When applicable, it acts to exclude a slayer from participation in the victim\u2019s estate. It does not act to include the victim in the slayer\u2019s estate due to the slayer\u2019s crime. This would contradict the Statute\u2019s stated purpose. The plaintiff at bar is not without recourse. As summary judgment did not adjudicate survivorship, Mrs. Torrence\u2019s estate still has the opportunity to prove that she survived Rupert Torrence and as such was his sole heir. If it is unable to do so then the intestate succession laws apply. Whether or not Mrs. Torrence is found to have survived her son, her estate may seek such recompense as the law allows pursuant to a wrongful death action against Rupert Torrence\u2019s estate. We cannot, under the record before us, rule that only Rupert Torrence\u2019s maternal heirs could inherit to the exclusion of his paternal heirs.\nThough the plaintiff\u2019s second assignment of error was not argued, we will consider it. The complaint had already been amended once by consent to add a second cause of action. Here, leave of court was required to amend because the time for responsive pleading had run. We find no abuse of discretion.\nAffirmed as to the trial court\u2019s denial of the motion to amend.\nAffirmed as to the trial court\u2019s ruling that Rupert Torrence is a slayer as a matter of law.\nThe court\u2019s second ruling that Mrs. Torrence is not her son\u2019s heir at law is vacated.\nJudges Wells and Walker concur.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "Edwin H. Ferguson, Jr. for plaintiff-appellant.", "John A. Mraz for defendant-appellee." ], "corrections": "", "head_matter": "JOHN RICHARD MOTHERSHED, Administrator of the Estate of Nettie Mothershed Torrence, Plaintiff v. FRANK L. SCHRIMSHER, Administrator of the Estate of Rupert Fritz Torrence, Defendant\nNo. 9126SC68\n(Filed 21 January 1992)\nDescent and Distribution \u00a7 36 (NCI4th)\u2014 slayer statute \u2014 slayer excluded from victim\u2019s estate \u2014 no provision for victim to participate in slayer\u2019s estate\nThe N. C. Slayer Statute, N.C.G.S. \u00a7 31A-4, deems the slayer to have predeceased his victim only for purposes of excluding the slayer from his victim\u2019s estate, and it does not establish the order of death between the slayer and the victim for purposes of distributing both the victim\u2019s and the slayer\u2019s estates.\nAm Jur 2d, Descent and Distribution \u00a7\u00a7 101, 105, 109.\nAPPEAL by plaintiff from an order denying leave to amend the complaint entered 15 November 1990 and from an order granting summary judgment entered on 16 November 1990 by Judge Chase B. Saunders in MECKLENBURG County Superior Court. Heard in the Court of Appeals on 4 November 1991.\nEdwin H. Ferguson, Jr. for plaintiff-appellant.\nJohn A. Mraz for defendant-appellee." }, "file_name": "0209-01", "first_page_order": 237, "last_page_order": 242 }