{ "id": 8202970, "name": "IN THE MATTER OF: THE ESTATE OF JOSEPHINE HOOD ARCHIBALD (EDWARDS)", "name_abbreviation": "In re the Estate of Archibald", "decision_date": "2007-05-15", "docket_number": "No. COA06-1233", "first_page": "274", "last_page": "281", "citations": [ { "type": "official", "cite": "183 N.C. App. 274" } ], "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": "380 S.E.2d 782", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1989, "pin_cites": [ { "page": "784" }, { "page": "787" } ], "opinion_index": 0 }, { "cite": "94 N.C. App. 428", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527363 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc-app/94/0428-01" ] }, { "cite": "230 S.E.2d 793", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "796" } ], "opinion_index": 0 }, { "cite": "32 N.C. App. 125", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548886 ], "year": 1977, "pin_cites": [ { "page": "129-30" } ], "opinion_index": 0, "case_paths": [ "/nc-app/32/0125-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 52-10.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "opinion_index": 0 }, { "cite": "230 S.E.2d 541", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1976, "pin_cites": [ { "page": "545", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "291 N.C. 386", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558339 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "391", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0386-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 30-3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 30-23", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "opinion_index": 0 }, { "cite": "551 S.E.2d 160", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "163" } ], "opinion_index": 0 }, { "cite": "144 N.C. App. 623", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11436228 ], "year": 2001, "pin_cites": [ { "page": "628" } ], "opinion_index": 0, "case_paths": [ "/nc-app/144/0623-01" ] }, { "cite": "567 S.E.2d 174", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "176", "parenthetical": "quoting Sessler v. Marsh, 144 N.C. App. 623, 628, 551 S.E.2d 160, 163 (2001)" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 697", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9082078 ], "year": 2002, "pin_cites": [ { "page": "699", "parenthetical": "quoting Sessler v. Marsh, 144 N.C. App. 623, 628, 551 S.E.2d 160, 163 (2001)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0697-01" ] }, { "cite": "459 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "2" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 400", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915470 ], "year": 1995, "pin_cites": [ { "page": "403" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0400-01" ] }, { "cite": "554 S.E.2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "371", "parenthetical": "quoting In re Estate of Pate, 119 N.C. App. 400, 403, 459 S.E.2d 1, 2 (1995" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 695", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11363231 ], "year": 2001, "pin_cites": [ { "page": "697", "parenthetical": "quoting In re Estate of Pate, 119 N.C. App. 400, 403, 459 S.E.2d 1, 2 (1995" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0695-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 30-3.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 30-15", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 } ], "analysis": { "cardinality": 690, "char_count": 14781, "ocr_confidence": 0.742, "pagerank": { "raw": 7.220764801860575e-08, "percentile": 0.43118305352937564 }, "sha256": "73cda434ddb030d56d3c878b1dbab503dd4c028cbefd68f45d92035be0111883", "simhash": "1:a9273e7470054100", "word_count": 2402 }, "last_updated": "2023-07-14T15:07:58.512650+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and STEELMAN concurs." ], "parties": [ "IN THE MATTER OF: THE ESTATE OF JOSEPHINE HOOD ARCHIBALD (EDWARDS)" ], "opinions": [ { "text": "LEVINSON, Judge.\nMovant-appellant Shirley Bass appeals from the denial of her motion asking the clerk to deny appellee Toney Edwards\u2019 claim for a spouse\u2019s elective share of Josephine Hood Archibald Edwards\u2019 (decedent\u2019s) estate; and to set aside the assignment of a spouse\u2019s year\u2019s allowance to appellee Toney Edwards. We affirm.\nThe pertinent facts are briefly summarized as follows: Decedent and appellee were married on 6 October 2001. The following year they separated for approximately six months, from 6 April 2002 until 1 October 2002. During the separation, decedent and appellee prepared a separation agreement containing a provision wherein they waived the right to inheritance rights from each others\u2019 estates. The separation agreement was filed with the Register of Deeds office in Cumberland County, North Carolina on 30 September 2002. However, the next day the couple reconciled, and thereafter they lived together until decedent\u2019s death.\nDecedent died testate on 18 March 2004, having executed a will about seven years before her marriage to appellee. Appellant is a devisee under the will, but appellee is not. On 24 November 2004 decedent\u2019s will was admitted to probate; on the same day, appellee applied for and was granted a year\u2019s spousal allowance, under N.C. Gen. Stat. \u00a7 30-15. On 24 May 2005 appellee elected a spousal share of his wife\u2019s estate, as permitted by N.C. Gen. Stat. \u00a7 30-3.1.\nOn 15 August 2005 appellant filed a motion asking the Clerk of Court to: (1) set aside the 24 November 2004 assignment of a year\u2019s spousal support; (2) deny appellee\u2019s claim for an elective share of decedent\u2019s estate; and (3) remove appellee as administrator of decedent\u2019s estate. The Assistant Clerk entered an order on 28 November 2005 removing appellee as administrator for failure to timely file an inventory of estate assets. On 5 December 2005 the Assistant Clerk entered an order denying appellant\u2019s motion to set aside the assignment of a year\u2019s allowance to appellee, on the grounds that the time for appeal had expired eight months earlier. The Assistant Clerk also denied appellant\u2019s motion to deny appellee an elective share, on the grounds that appellee and decedent\u2019s reconciliation had canceled and rescinded the provisions of the separation agreement waiving interest in each other\u2019s estates. Appellant appealed from the Clerk\u2019s order to the Superior Court, which entered an order affirming the Assistant Clerk\u2019s order on 28 March 2006. From this order appellant timely appeals.\nStandard of Review\n[O]n appeal from an order of the Clerk,[:]\n\u201cthe trial judge reviews the Clerk\u2019s findings and may either affirm, reverse, or modify them. If there is evidence to support the findings of the Clerk, the judge must affirm. Moreover, even though the Clerk may have made an erroneous finding which is not supported by the evidence, the Clerk\u2019s order will not be disturbed if the legal conclusions upon which it is based are supported by other proper findings.\u201d ... The standard of review in this Court is the same as that in the Superior Court.\nIn re Estate of Monk, 146 N.C. App. 695, 697, 554 S.E.2d 370, 371 (2001) (quoting In re Estate of Pate, 119 N.C. App. 400, 403, 459 S.E.2d 1, 2 (1995). \u201cThe standard of review on appeal from a judgment entered after a non-jury trial is \u2018whether there is competent evidence to support the trial court\u2019s findings of fact and whether the findings support the conclusions of law and ensuing judgment.\u2019 \u201d Cartin v. Harrison, 151 N.C. App. 697, 699, 567 S.E.2d 174, 176 (2002) (quoting Sessler v. Marsh, 144 N.C. App. 623, 628, 551 S.E.2d 160, 163 (2001)).\nYear\u2019s Spousal Allowance\nPursuant to N.C. Gen. Stat. \u00a7 30-15 (2005), a surviving spouse is \u201centitled, out of the personal property of the deceased spouse, to an allowance of the value of ten thousand dollars ($ 10,000) for his support for one year after the death of the deceased spouse.\u201d Ap-pellee applied for and was granted a year\u2019s spousal allowance on 24 November 2004. On 15 August 2005 appellant filed a motion to set aside the assignment of a year\u2019s allowance to appellee. Her motion was denied by the Assistant Clerk, whose order was upheld by the trial court. On appeal, appellant argues that appellee was improperly awarded a year\u2019s allowance. We conclude that appellant did not preserve this issue for our review.\nUnder N.C. Gen. Stat. \u00a7 30-23 (2005), \u201cany creditor, legatee or heir of the deceased, may appeal from the finding of the magistrate or clerk of court to the superior court of the county, and, within 10 davs after the assignment, cite the adverse party to appear before such court on a certain day[.]\u201d (emphasis added). In the instant case, appellant did not file an appeal, and waited more than eight months before filing her \u201cmotion to set aside\u201d the assignment of the year\u2019s allowance. We conclude that appellant failed to appeal within the required time.\nAppellant asserts that she did not appeal because she had no notice of the assignment. She concedes that no notice is required under the statute, but argues that inasmuch as notice is required with regards to other aspects of estate administration, that notice should also be required in when the clerk grants a spouse\u2019s year\u2019s allowance. To the contrary, the presence of statutory notice requirements for other estate actions indicates that the legislature intentionally did not impose a notice requirement with respect to the statutory right to a year\u2019s allowance. This assignment of error is overruled.\nSpouse\u2019s Elective Share\nUnder N.C. Gen. Stat. \u00a7 30-3,1 (2005), a surviving spouse \u201chas a right to claim an \u2018elective share\u2019, which means an amount equal to (i) the applicable share of the Total Net Assets, as defined in G.S. 30-3.2(4), less (ii) the value of Property Passing to Surviving Spouse, as defined in G.S. 30-3.3(a).\u201d Appellee applied for and was granted the right to take an elective share of decedent\u2019s estate. Appellant argues that the trial court erred in affirming the clerk\u2019s order, on the grounds that the terms of the separation agreement preclude appellee from exercising the right to dissent from decedent\u2019s will. We disagree.\nThe separation agreement included the following provision:\n4. Release of Property and Estate Rights. Except as otherwise provided herein, each party hereby waives ... all rights [to] . . . property or estate of the other, arising by reason of their marital relationship . . . including, but not limited to, dower, curtesy [sic], statutory allowance, . . . any right of election, right to take against the last will... of the other or to dissent therefrom, [and] right to act as administrator or executor of the estate of [the other.] ... In addition, . . . each party waives . . . any right to insurance proceeds payable by reason of the death or disability of the other[.] . . .\n\u201cIt is well settled in our law that a separation .agreement between husband and wife is terminated for every purpose insofar as it remains executory upon their resumption of the marital relation.\u201d In re Estate of Adamee, 291 N.C. 386, 391, 230 S.E.2d 541, 545 (1976) (citations omitted). Thus, the clerk and trial court were presented with two issues: (1) did decedent and appellee reconcile and resume marital relations; and (2) if so, was the provision waiving inheritance rights executory at the time of reconciliation?\nUnder N.C. Gen. Stat. \u00a7 52-10.2 (2005), \u201c \u2018Resumption of marital relations\u2019 shall be defined as voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances. ...\u201d In the instant case, appellee executed a sworn affidavit wherein he stated, in relevant part, the following:\n7. At no time were we ever divorced from each other. We resumed living together as husband and wife by October 1, 2002. . . .\n8. Subsequent to resuming living together as husband and wife by October 1, 2002, Josephine and I held ourselves out to our families and to the public as being husband and wife . . . [and] live[d] together happily as husband and wife.\n9. Between October 1, 2002 and my wife\u2019s death on March 18, 2004, my wife, [decedent] and I: a) purchased furniture together[.] . . . b) maintained a joint checking account[.] c) filed income tax returns together[.] . ..\n10. Between October 1, 2002 and my wife\u2019s death on March 18, 2004, my wife:\na) maintained and used a military i.d. card issued to her based on my veteran status[.] . . .\nb) listed me as her spouse on all visit to doctors\u2019 appointments; c) had me named as the responsible party for pay-merit for her medical care[.]... d) listed me as her next of kin upon all hospital admissions.\n11. On July 20, 2003, [decedent] executed and delivered a \u2018Designation of Beneficiary\u2019 form for her Federal Employees Group Life Insurance Program naming me as her husband and naming me as the primary beneficiary of the life insurance policy. ....\n12. In October, 2003,1 and my wife Josephine Hood Edwards purchased a residence [in] . . . Fayetteville, N.C. . . . Josephine and I, as \u201chusband and wife\u201d, were named as grantees in the deed, and we both signed the deed of trust securing the mortgage on this property. . . .\nWe conclude that this uncontradicted affidavit easily supports the clerk\u2019s finding and conclusion that, after executing the separation agreement, decedent and appellee reconciled and resumed marital relations.\nWe conclude further that the waiver provision was executory when appellee and decedent reconciled the day after filing the separation agreement. \u201cAn \u2018executory contract\u2019 is one in which a party binds himself to do or not to do a particular thing in the future.\u201d Whitt v. Whitt, 32 N.C. App. 125, 129-30, 230 S.E.2d 793, 796 (1977). In In re Estate of Tucci, 94 N.C. App. 428, 380 S.E.2d 782 (1989), the clerk concluded:\n[T]he right of the surviving spouse to dissent from the will of testatrix arose as of the date of her death, and a waiver of that right necessarily required the surviving spouse not to do .a particular thing in the future and was, therefore, an executory provision.\nId. at 431, 380 S.E.2d at 784. In Tucci, this Court ultimately determined that, because the separation agreement at issue expressly stated that it was to remain in effect if the parties reconciled, that \u201cit is immaterial whether Mr. Tucci\u2019s release was executory at the time the Tuccis reconciled.\u201d Id. at 437, 380 S.E.2d at 787.\nThe executory nature of a waiver of inheritance rights was addressed by the North Carolina Supreme Court in In re Estate of Adamee, 291 N.C. 386, 230 S.E.2d 541. As noted above, Adamee referenced the established rule that reconciliation would rescind execu-tory provisions in a separation agreement. In Adamee, as in the instant case, the decedent and appellee executed a separation agreement wherein they waived the right to share in each other\u2019s estate. Thereafter, also as in the instant case, decedent and appellee reconciled and lived together until decedent\u2019s death. The clerk issued an order stating that the reconciliation had nullified the separation agreement, and allowing appellee to administer and inherit from decedent\u2019s estate. Id. The Adamee appellants appealed to Superior Court and filed a motion for summary judgment. The trial court refused to uphold the clerk\u2019s order, on the grounds that there were issues of material fact on the issue of whether decedent and appellee had reconciled. This Court upheld the trial court\u2019s order. The North Carolina Supreme Court reversed:\n[A]fter the execution of the separation agreement . . . Mrs. Adamee returned to the marital home [and] . . . until [Mr.] Adamee\u2019s death ... he and Mrs. Adamee lived together continuously in their marital residence. Therefore, no issue arose ... as to their resumption of marital relations. As a matter of law they had done so. It follows that [the trial court] erred in refusing to affirm the clerk\u2019s order that Mrs. Adamee is entitled to qualify as administratrix of the estate of Adamee and share in his estate as his widow without prejudice by reason of the separation agreement and consent judgment^]\nId. at 393, 230 S.E.2d at 546.\nLater cases have not overruled Adamee\u2019s holding, that reconciliation of a married couple serves to rescind and nullify a separation agreement\u2019s waiver of estate rights. Nor has appellant directed our attention to any precedent holding that such waivers are not execu-tory. Moreover, the separation agreement at issue herein includes a provision that tracks the common law rule regarding the effect of reconciliation on executory provisions in the agreement:\n14. Reconciliation. In the event the Husband and Wife end their separation by reconciliation and resumption of marital cohabitation, the executory provisions of this agreement shall be thereby cancelled and rescinded, but all provisions hereof which have been executed or partially executed at that time, shall, to the extent of complete or partial performance, continue in full force and effect unless and until they are can-celled or rescinded in a written agreement duly executed by both Husband and Wife. ,. . .\nWe conclude that the waiver of inheritance rights was rescinded and canceled by the reconciliation of decedent and appellee, and that the trial court\u2019s order must be\nAffirmed.\nJudges BRYANT and STEELMAN concurs.", "type": "majority", "author": "LEVINSON, Judge." } ], "attorneys": [ "Mast, Schulz, Mast, Mills, Johnson & Wells, P.A., by George B. Mast, Bradley N. Schulz, and Ronnie L. Trimyer, Jr. for movant-appellant.", "McCoy Weaver Wiggins Cleveland Rose Ray PLLC, by Steven J. O\u2019Connor, for appellee Toney F. Edwards." ], "corrections": "", "head_matter": "IN THE MATTER OF: THE ESTATE OF JOSEPHINE HOOD ARCHIBALD (EDWARDS)\nNo. COA06-1233\n(Filed 15 May 2007)\n1. Estates\u2014 spousal allowance \u2014 motion to set aside \u2014 not timely\nThe question of whether a spousal year\u2019s allowance was properly assigned was not preserved for review where appellant waited more than eight months before filing a motion to set aside the assignment (which was denied and appealed to form this case) rather than appealing to the superior court within ten days as required by N.C.G.S. \u00a7 30-23. Although appellant asserts that she did not appeal because she had no notice of the assignment, the presence of notice requirements for other estate actions but not for spousal allowances indicates a legislative intent to not impose such a requirement.\n2. Estates\u2014 spouse\u2019s elective share \u2014 prior separation agreement \u2014 reconciliation\nA waiver of the spousal right to dissent from a will in a separation agreement was rescinded by the parties\u2019 reconciliation, and the husband was entitled to claim an elective share of the deceased wife\u2019s estate under N.C.G.S. \u00a7 30-3.1.\nAppeal by movant-appellant from order entered 28 March 2006 by Judge Gregory A. Weeks in Cumberland County Superior Court. Heard in the Court of Appeals 29 March 2007.\nMast, Schulz, Mast, Mills, Johnson & Wells, P.A., by George B. Mast, Bradley N. Schulz, and Ronnie L. Trimyer, Jr. for movant-appellant.\nMcCoy Weaver Wiggins Cleveland Rose Ray PLLC, by Steven J. O\u2019Connor, for appellee Toney F. Edwards." }, "file_name": "0274-01", "first_page_order": 306, "last_page_order": 313 }