{ "id": 8523784, "name": "In the Matter of the Estate of MELISSA GAIL BRYANT", "name_abbreviation": "In re the Estate of Bryant", "decision_date": "1994-09-06", "docket_number": "No. 936SC685", "first_page": "329", "last_page": "335", "citations": [ { "type": "official", "cite": "116 N.C. App. 329" } ], "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": "240 S.E.2d 367", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "371" } ], "opinion_index": 0 }, { "cite": "294 N.C. 90", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570942 ], "year": 1978, "pin_cites": [ { "page": "95" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0090-01" ] }, { "cite": "203 S.E.2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "843" } ], "opinion_index": 0 }, { "cite": "285 N.C. 135", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562562 ], "year": 1974, "pin_cites": [ { "page": "143" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0135-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 41-6.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1984, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 29-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1984, "opinion_index": 0 }, { "cite": "328 S.E.2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "785" }, { "page": "786" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 368", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524638 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "370" }, { "page": "371" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0368-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 28-6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1950, "pin_cites": [ { "parenthetical": "repealed 1973" } ], "opinion_index": 0 }, { "cite": "66 S.E.2d 675", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "pin_cites": [ { "page": "676" } ], "opinion_index": 0 }, { "cite": "234 N.C. 202", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620516 ], "year": 1951, "pin_cites": [ { "page": "203" } ], "opinion_index": 0, "case_paths": [ "/nc/234/0202-01" ] } ], "analysis": { "cardinality": 564, "char_count": 12794, "ocr_confidence": 0.748, "pagerank": { "raw": 6.087085966315723e-08, "percentile": 0.3793516533203287 }, "sha256": "2a59ed4c3cb90f399a5036dc6a6c7f0265a2c9367009ed0539ceed4314e9a80c", "simhash": "1:c24d9627e72ba4f3", "word_count": 2153 }, "last_updated": "2023-07-14T22:38:55.005039+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges EAGLES and MARTIN concur." ], "parties": [ "In the Matter of the Estate of MELISSA GAIL BRYANT" ], "opinions": [ { "text": "McCRODDEN, Judge.\nPetitioner makes two arguments supporting two assignments of error to the court\u2019s order: (I) that the clerk and the trial court erred in determining that under the statute establishing the order of priority for letters of administration, \u201cnext of kin\u201d and \u201cheir\u201d are synonymous and, (II) that the clerk and the judge erred in failing to determine that petitioner was next of kin within the meaning of the statute. We find merit in both of petitioner\u2019s arguments and reverse the trial court.\nSince the decedent died intestate, N.C. Gen. Stat. \u00a7 28A-4-1 (Supp. 1993) specifies to whom letters of administration shall be granted. The statute provides that, unless he determines in his discretion that the best interests of the estate otherwise require, the Clerk of Superi- or Court shall grant letters to applicants in the following order:\n(1) The surviving spouse of the decedent;\n(2) Any devisee of the testator;\n(3) Any heir of the decedent;\n(3a) Any next of kin, with a person who is of a closer kinship as computed pursuant to G.S. 104A-1 having priority;\n(4) Any creditor to whom the decedent became obligated prior to his death;\n(5) Any person of good character residing in the county who applies therefor; and\n(6) Any other person of good character not disqualified under G.S. 28A-4-2.\nN.C.G.S. \u00a7 28-4-1. When the persons applying for letters of administration are equally entitled to them, the clerk shall award them to the person who is most likely to administer the estate advantageously. Id.\nIn this case, the clerk found:\n7. Melissa Gail Bryant died without a spouse and was survived by one heir, Wilson Lee Bryant, her minor child.\n8. Respondent is the natural father and legal custodian of said minor child, Wilson Lee Bryant.\n9. Pursuant to N.C.G.S. \u00a7 28A-4-l(3) and \u00a7 28A-1-1 the minor child, Wilson Lee Bryant is the \u201cheir\u201d of the decedent and therefore first in priority to serve as personal representative of the estate of the deceased.\n10. Pursuant to N.C.G.S. \u00a7 28A-4-l(3a) the minor child is also the \u201cnext of kin\u201d in that \u00a7 28A-4-l(3a) serves to define \u201cheir[s]\u201d under \u00a7 28A-4-l(3) in terms of priority or by placing in,order those \u201cheir[s]\u201d entitled to serve as the personal representative. The minor child is the only \u201cheir\u201d and therefore the only \u201cnext of kin.\u201d Thus, in this case the terms \u201cheir\u201d and \u201cnext of kin\u201d as used in N.C.G.S. \u00a7 28A~4~1(3) and \u00a7 28A-4-l(3a) are synonymous.\n11. Pursuant to N.C.G.S. \u00a7 28A-4-2 the minor child is under 18 years of age and therefore disqualified to serve as personal representative.\n12. Pursuant to N.C.G.S. \u00a7. 28A-4-l(5) Petitioner and Respondent are persons of good character residing in Halifax County and are equally entitled to be granted letters.\n13. This Order is in the best interests of the estate in that the Respondent, Leon Wilbur Cahoon, is most likely to administer the estate most advantageously.\nPetitioner first argues that the trial court erred in finding that with respect to N.C.G.S. \u00a7 28A-4-1 \u201cnext of kin\u201d is synonymous with \u201cheirs.\u201d We agree.\nThe right to administer an estate is entirely statutory. In re Estate of Edwards, 234 N.C. 202, 203, 66 S.E.2d 675, 676 (1951). Until 1973, the direct predecessor to section 28A-4-1 provided that the right was to be granted to the surviving spouse, then to \u201cthe next of kin in the order of their degree, where they are of different degrees; if of equal degree, to one or more of them, at the discretion of the clerk,\u201d and then to a creditor or any other competent person. N.C. Gen. Stat. \u00a7 28-6 (1950) (repealed 1973). When it repealed Chapter 28 of the General Statutes and replaced it with Chapter 28A, the General Assembly amended former section 28-6, substituting the word \u201cheirs\u201d for \u201cnext of kin.\u201d In 1987, the legislature added subsection (b)(3a), containing the phrase \u201cnext of kin.\u201d\n\u201cHeir\u201d is a technical term with a specific meaning. Rawls v. Rideout, 74 N.C. App. 368, 370, 328 S.E.2d 783, 785 (1985). It refers to \u201cany person entitled to take real or personal property upon intestacy.\u201d N.C. Gen. Stat. \u00a7 29-2 (1984). The term \u201cnext of kin,\u201d however, has two meanings:\n(1) nearest blood relations according to [the] law of consanguinity and (2) those entitled to take under statutory distribution of [the] intestate\u2019s estates, and [the] term is not necessarily confined to relatives by blood, but may include a relationship existing by reason of marriage, and may well embrace persons, who in [the] natural sense of [the] word, and in [the] contemplation of Roman law, bear no relation of kinship at all.\nBlack\u2019s Law Dictionary 1044 (6th ed. 1990).\nBefore the clerk, respondent argued that the \u201cnext of kin\u201d should be given the second of these meanings, relying on N.C. Gen. Stat. \u00a7 41-6.1 (1984), and the clerk apparently agreed. Although this confusion is understandable, the clerk erred in using that definition.\nN.C.G.S. \u00a7 41-6.1 provides that \u201c[a] limitation by deed, will, or other writing, to the \u2018next of kin\u2019 of any person shall be construed to be to those persons who would take under the law of intestate succession, unless a contrary intention appears by the instrument.\u201d By enacting N.C.G.S. \u00a7 41-6.1, the legislature made \u201cnext of kin\u201d synonymous with \u201cheirs.\u201d Rawls, 74 N.C. App. at 371, 328 S.E.2d at 786. However, we believe this synonymity applies only in the construction of wills, deeds and other writings, not in the interpretation of N.C.G.S. \u00a7 28-4-1.\nWe have three bases for our interpretation. First, we believe that the General Assembly would not use two different terms to refer to the same class of people in consecutive paragraphs of the same statute. Second, to interpret \u201cnext of kin\u201d to mean the same thing as \u201cheirs\u201d would violate one of the presumptions of statutory construction: that \u201cno part of a statute is mere surplusage, but each provision adds something which would not otherwise be included in its terms.\u201d Electric Service v. City of Rocky Mount, 285 N.C. 135, 143, 203 S.E.2d 838, 843 (1974). Interpreting \u201cnext of kin\u201d as synonymous with \u201cheirs\u201d for purposes of this statute would reduce one of the phrases to redundancy. Finally, we believe that if the legislature had intended merely to provide a mechanism for distinguishing between heirs when it revised the statute in 1987, it would have amended paragraph (3) rather than inserting a whole new paragraph using a different class label. Hence, with regard to section 28A-4-1, we cannot interpret \u201cnext of kin\u201d as synonymous with \u201cheirs\u201d.\nIn this instance, we believe that the term \u201cnext of kin\u201d must refer to the class of blood relatives of the decedent, without regard to their eligibility to take under the intestacy statute.\nRespondent asserts that the clerk found only that the terms were synonymous in this particular case where there was only one heir and that \u201cnext of kin\u201d as used in paragraph (3a) refers to the single heir who is closest in degree of consanguinity. The statute, however, reads \u201c[a]ny next of kin.\u201d (Emphasis added.) The use of the word \u201cany\u201d indicates that the phrase next of kin is meant to refer to the class of blood relatives, not the member of that class who is closest.\nThe guiding principle in all statutory construction, of course, is the intention of the legislature. In re Hardy, 294 N.C. 90, 95, 240 S.E.2d 367, 371 (1978). Our interpretation of section 28A-4-1 is entirely consistent with the will of the General Assembly. The clear purpose behind establishing the priority list was to ensure that the person who will best preserve the estate administer the estate. It seems natural, then, that one with an economic stake in the estate would be likely to do more to preserve the assets of the estate than would one who had no interest in the estate. Thus, the person with the greatest fractional share of the estate, the surviving spouse, if any, receives top priority. Likewise, a devisee has priority over the general heirs and the heirs have priority over next of kin, who would not necessarily take under the intestate succession laws.\nRespondent points out that next of kin, who might not have an economic interest in the estate, are given priority over creditors, who obviously have a stake in the estate. While this is true, we find it consistent with other concerns of the legislature. The General Assembly has long recognized that the winding up of a deceased person\u2019s affairs involves personal as well as financial matters. Indeed, one of the earliest versions of the statute provided that \u201cif the person applying shall be deemed incompetent, the court may grant administration to any discreet person.\u201d 1854 Revised Code of North Carolina Ch. 46 \u00a7 3 (repealed 1868) (emphasis added). Thus, it is hardly surprising that the legislature provided that next of kin, who may have no economic interest but who would be more likely to be sensitive to personal matters, have priority over creditors, who are likely to be strangers.\nWe conclude that for purposes of N.C.G.S. \u00a7 28A-4-1, \u201cnext of kin\u201d refers to the class of blood relatives of the decedent, and that the court erred in determining that that term was synonymous with \u201cheirs.\u201d\nPetitioner next argues that the clerk, and'therefore the court, erred in failing to find that petitioner was next of kin to the decedent. We agree. In his response to the petition to revoke letters of administration, respondent admitted that petitioner is the mother of the decedent. Thus, petitioner is next of kin within the definition of that term and she has priority for the letters of administration over respondent, who falls in category (5) of N.C.G.S. \u00a7 28A-4-1.\nFor the foregoing reasons, we reverse the order of the trial court and remand the case to the Halifax County Superior Court for remand to the clerk. Unless the clerk determines that the best interests of the estate otherwise require, he should issue the letters of administration to petitioner forthwith.\nReversed.\nJudges EAGLES and MARTIN concur.", "type": "majority", "author": "McCRODDEN, Judge." } ], "attorneys": [ "Mosely & Elliott, by Terry M. Sholar, for petitioner-appellant.", "James, Wellman & White, by Lillian M. Neal Pruden and Thomas H. Wellman, for respondent-appellee." ], "corrections": "", "head_matter": "In the Matter of the Estate of MELISSA GAIL BRYANT\nNo. 936SC685\n(Filed 6 September 1994)\n1. Executors and Administrators \u00a7 8 (NCI4th)\u2014 letters of administration \u2014 priorities in granting\nThe clerk and the trial court erred in determining that \u201cnext of kin\u201d and \u201cheir\u201d are synonymous under N.C.G.S. \u00a7 28A-4-1, the statute establishing the priority for letters of administration. Although the two terms are synonymous in the construction of wills, deeds and other writings, that synonymity applies only in the construction of wills, deeds, and other writings, not in the interpretation of N.C.G.S. \u00a7 28A-4-1 because the General Assembly would not use two different terms to refer to the same class of people in consecutive paragraphs of the same statute; interpreting \u201cnext of kin\u201d as synonymous with \u201cheirs\u201d would reduce one of the phrases to redundancy; and the legislature would have amended paragraph three when it revised the statute in 1987 rather than inserting a whole new paragraph using a different class label if it had intended merely to provide a mechanism for distinguishing between heirs. The term \u201cnext of kin\u201d must refer to the class of blood relatives of the decedent, without regard to their eligibility to take under the intestacy statute.\nAm Jur 2d, Executors and Administrators \u00a7\u00a7 157 et seq.\n2. Executors and Administrators \u00a7 8 (NCI4th)\u2014 letters of administration \u2014 next of kin\nThe clerk and the court erred in failing to find that petitioner was the next of kin to the decedent where respondent admitted that petitioner is the mother of the decedent. Petitioner is thus next of kin and she has priority for letters of administration over respondent. N.C.G.S. \u00a7 28A-4-1.\nAm Jur 2d, Executors and Administrators \u00a7\u00a7 157 et seq.\nAppeal by petitioner from order signed 3 May 1993 by Judge James R. Strickland in Halifax County Superior Court. Heard in the Court of Appeals 10 March 1994.\nFollowing the death of Melissa Gail Bryant, the Halifax County Clerk of Superior Court granted letters of administration for the estate to the respondent, Wilbur Lee Cahoon, on 12 November 1992. Respondent is the father of the decedent\u2019s minor child, but was not married to the decedent. On 18 December 1992, petitioner, the decedent\u2019s mother, petitioned the clerk to revoke the letters granted to respondent and grant them to her instead. The clerk held a hearing on 8 January 1993 and entered an order allowing respondent to continue to serve as administrator of the estate. Petitioner appealed this order to the superior court. Following a hearing on 12 April 1993, the court entered an order affirming the decision of the clerk. From this order, petitioner appeals.\nMosely & Elliott, by Terry M. Sholar, for petitioner-appellant.\nJames, Wellman & White, by Lillian M. Neal Pruden and Thomas H. Wellman, for respondent-appellee." }, "file_name": "0329-01", "first_page_order": 359, "last_page_order": 365 }