{
  "id": 9497534,
  "name": "FREDERIC W. RIPLEY, III, PAMELA BERBUE, and DIANE R. OLSON, Plaintiffs v. SUZANNE E. DAY and WACHOVIA BANK, N.A., (f/k/a WACHOVIA BANK and TRUST COMPANY, N.A.), Executor of the Estate of Ellison G. Day and Trustee of the Trust, under Agreement with Ellison G. Day dated February 1, 1990, Defendants",
  "name_abbreviation": "Ripley v. Day",
  "decision_date": "2000-08-15",
  "docket_number": "No. COA99-866",
  "first_page": "630",
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    {
      "cite": "N.C. Gen. Stat. \u00a7 30",
      "category": "laws:leg_statute",
      "reporter": "N.C. Gen. Stat.",
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    {
      "cite": "N.C. Gen. Stat. \u00a7 1-254",
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  "casebody": {
    "judges": [
      "Judges MARTIN and WALKER concur."
    ],
    "parties": [
      "FREDERIC W. RIPLEY, III, PAMELA BERBUE, and DIANE R. OLSON, Plaintiffs v. SUZANNE E. DAY and WACHOVIA BANK, N.A., (f/k/a WACHOVIA BANK and TRUST COMPANY, N.A.), Executor of the Estate of Ellison G. Day and Trustee of the Trust, under Agreement with Ellison G. Day dated February 1, 1990, Defendants"
    ],
    "opinions": [
      {
        "text": "LEWIS, Judge.\nPlaintiffs instituted a declaratory judgment action to determine whether defendant Suzanne E. Day is entitled to dissent from her deceased husband\u2019s will. Plaintiffs are the nieces and nephew of the decedent. The trial court granted summary judgment in favor of defendants Day and Wachovia; however, plaintiffs filed notice of appeal only with respect to defendant Day. As such, we address the issues on appeal only as they relate to defendant Day.\nPlaintiffs first argue they have standing to contest Day\u2019s right of dissent in this action, and as such, the trial court should not have granted summary judgment in favor of defendant Day. Plaintiffs contend that when N.C. Gen. Stat. \u00a7 30-1 is read in pari materia with certain provisions of the Declaratory Judgment Act, including N.C. Gen. Stat. \u00a7 1-254, they have standing to contest Day\u2019s right of dissent by means of a declaratory judgment action. Although we disagree, the problem relates not to a lack of standing, but to a lack of subject matter jurisdiction.\nG.S. 30-1 sets forth the requirements for establishing a surviving spouse\u2019s right of dissent. The valuations relevant to determining whether a right of dissent exists, including the estate of the deceased spouse and the property passing outside of the will to the surviving spouse, may be established by agreement of the executor and surviving spouse and upon approval of the clerk of superior court. N.C. Gen. Stat. \u00a7 30-l(c) (1999). G.S. 1-254, which governs the courts\u2019 authority to construe instruments, provides that \u201c[a]ny person interested under a . . . will. . . may have determined any question of construction or validity arising under the instrument. . . and obtain a declaration of rights, status or any other legal relations thereunder.\u201d (Emphasis added).\nIt is well-settled that \u201c[statutes dealing with the same subject matter must be construed in pari materia and harmonized, if possible, to give effect to each.\u201d Bd. of Adjmt. of the Town of Swansboro v. Town of Swansboro, 334 N.C. 421, 427, 432 S.E.2d 310, 313 (1993). We conclude the two statutes cited by plaintiffs do not deal with the same subject matter. It is clear that G.S. 30-l(c) specifically governs the determination of a surviving spouse\u2019s right of dissent, including both valuation and the ultimate determination of whether a right of dissent is established as a result of the relevant valuations. G.S. 1-254, however, allows questions as to the construction of a will to be brought in a declaratory judgment action. Rogel v. Johnson, 114 N.C. App. 239, 242, 441 S.E.2d 558, 560 (1994). \u201cThe Declaratory Judgment Act... is designed to provide an expeditious method of procuring a judicial decree construing wills, contracts, and other written instruments and declaring the rights and liabilities of parties thereunder.\u201d Farthing v. Farthing, 235 N.C. 634, 635, 70 S.E.2d 664, 665 (1952).\nAn action contesting a surviving spouse\u2019s right of dissent entails something entirely different from the construction of a will. In fact, as its name connotes, dissent does not even involve application of the will \u2014 it involves a spouse\u2019s outright refusal to collect under the will. Although both actions in part involve estate valuations (the dissent action involving valuation of the entire estate and the declaratory judgment action involving valuation of the testamentary estate), the actions are still fundamentally different in nature. As such, we conclude that G.S. 30-l(c) and G.S. 1-254 govern mutually exclusive subject matter, so that each must be construed separately.\nBecause G.S. 1-254 does not encompass actions to contest a surviving spouse\u2019s right of dissent, we conclude the superior court did not have subject matter jurisdiction over the issues involved in this case. In its declaratory judgment action, plaintiffs sought something entirely different from the court than construction of a will. In their complaint, plaintiffs contest defendant Day\u2019s right of dissent from the will based on valuations. Resolution of this issue has nothing to do with construction of the will instrument; the provisions of G.S. 1-254 do not confer subject matter jurisdiction for plaintiffs\u2019 action.\nIt is important to note that plaintiffs\u2019 action contests only the valuations relevant to defendant Day\u2019s right of dissent. A different analysis may have resulted if plaintiffs had alleged that the agreement in this case was reached through collusion or fraud. While our courts have indicated that \u201c[a]bsent a showing that the parties have failed to act in an arm\u2019s length manner . . . the clerk ought to abide by this agreement,\u201d Taylor v. Taylor, 301 N.C. 357, 363, 271 S.E.2d 506, 510-11 (1980), they have not addressed what action is appropriate when persons other than the parties to the agreement make such a challenge. As plaintiffs have made no contention regarding collusion or fraud, the issue is not before us and we have not addressed it.\nPlaintiffs also contend that because defendant Day and her attorney, through conversations and correspondence, previously agreed that plaintiffs have standing to bring a declaratory judgment action, defendant Day waived her right to assert standing as a defense in this case. We have already concluded that the issue in this case was not one of standing, but of subject matter jurisdiction. Hence, even if defendant Day agreed or even urged plaintiffs to institute a declaratory judgment action, jurisdiction of the court over the subject matter of the action is the most critical aspect of the court\u2019s authority to act and cannot be waived. W. Brian Howell, Shuford North Carolina Civil Practice and Procedure \u00a7 12-4 (5th ed. 1998). Furthermore, it was certainly not Day\u2019s position to advise plaintiffs on their options for contesting her right of dissent.\nBecause the superior court had no subject matter jurisdiction over the issues involved in this case, we conclude the trial court properly granted summary judgment in favor of defendants.\nGiven our disposition as to the first issue, we need not consider plaintiffs contentions regarding valuation of the testate and intestate shares.\nAffirmed.\nJudges MARTIN and WALKER concur.",
        "type": "majority",
        "author": "LEWIS, Judge."
      }
    ],
    "attorneys": [
      "Bryant, Patterson, Covington & Idol, P.A., by David O. Lewis, for the plaintiff-appellants.",
      "Newsom, Graham, Hedrick & Kennon, PA., by Josiah S. Murray III and J. Alan Campbell, for the defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "FREDERIC W. RIPLEY, III, PAMELA BERBUE, and DIANE R. OLSON, Plaintiffs v. SUZANNE E. DAY and WACHOVIA BANK, N.A., (f/k/a WACHOVIA BANK and TRUST COMPANY, N.A.), Executor of the Estate of Ellison G. Day and Trustee of the Trust, under Agreement with Ellison G. Day dated February 1, 1990, Defendants\nNo. COA99-866\n(Filed 15 August 2000)\n1. Wills\u2014 right of dissent \u2014 subject matter jurisdiction\u2014 declaratory judgment action improper\nAlthough plaintiffs contend they have standing to contest defendant-wife\u2019s right of dissent from her deceased husband\u2019s will in this action, the trial court did not err by granting summary judgment in favor of defendant in a declaratory judgment action, because the trial court did not have subject matter jurisdiction over the issues involved based on the facts that: (1) an action contesting a surviving spouse\u2019s right of dissent under N.C.G.S. \u00a7 30-1 entails something entirely different from the construction of a will in a declaratory judgment action under N.C.G.S. \u00a7 1-254 since the dissent action involves valuation of the entire estate and the declaratory judgment action involves valuation of the testamentary estate; and (2) plaintiffs contest defendant\u2019s right of dissent from the will based on valuations, rather than an agreement reached through collusion or fraud.\n2. Jurisdiction\u2014 subject matter \u2014 wills\u2014right of dissent\nEven if defendant agreed or even urged plaintiffs to institute a declaratory judgment action to determine whether defendant-wife is entitled to dissent from her deceased husband\u2019s will, jurisdiction of the court over the subject matter of the action is the most critical aspect of the court\u2019s authority to act and cannot be waived.\nAppeal by plaintiffs from order entered 19 April 1999 by Judge Wiley F. Bowen in Chatham County Superior Court. Heard in the Court of Appeals 19 April 2000.\nBryant, Patterson, Covington & Idol, P.A., by David O. Lewis, for the plaintiff-appellants.\nNewsom, Graham, Hedrick & Kennon, PA., by Josiah S. Murray III and J. Alan Campbell, for the defendant-appellee."
  },
  "file_name": "0630-01",
  "first_page_order": 662,
  "last_page_order": 666
}
