{
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  "name": "IN THE MATTER OF THE ESTATE OF JOHN C. KIRKMAN, SR., DECEASED",
  "name_abbreviation": "In re the Estate of Kirkman",
  "decision_date": "1980-07-01",
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  "casebody": {
    "judges": [
      "Judges Vaughn and Arnold concur."
    ],
    "parties": [
      "IN THE MATTER OF THE ESTATE OF JOHN C. KIRKMAN, SR., DECEASED"
    ],
    "opinions": [
      {
        "text": "MORRIS, Chief Judge.\nThe sole question before us is whether a proceeding to determine the right of dissent from a will by a surviving spouse is a proceeding within the meaning of G.S. 6-21(2). We hold that it is not, for the reasons stated below.\nG.S. 6-21 (1979 Cum. Supp.) provides, in pertinent part, as follows:\nCosts in the following matters shall be taxed against either party, or apportioned among the parties, in the discretion of the court:\n(2) Caveats to wills and any action or proceeding which may require the construction of any will or trust agreement, or fix the rights and duties of parties thereunder; provided, however, that in any caveat proceeding under this subdivision, if the Court finds that the proceeding is without substantial merit, the court may disallow attorneys\u2019 fees for the attorneys for the caveators.\nG.S. 6-21 provides that \u201ccosts\u201d include \u201creasonable attorneys\u2019 fees in such amounts as the court shall in its discretion determine and allow ... .\u201d This section vests the trial court with the discretionary authority to tax reasonable attorneys\u2019 fees as a part of the costs to be paid by the executor of a testator\u2019s estate, McWhirter v. Downs, 8 N.C. App. 50, 173 S.E. 2d 587 (1970), or the costs incurred in the management of trust estates. Tripp v. Tripp, 17 N.C. App. 64, 193 S.E. 2d 366 (1972). This section, however, has been held inapplicable where the particular action involved an instrument which was not sufficient as a trust instrument and was not executed as a will. See Baxter v. Jones, 283 N.C. 327, 196 S.E. 2d 193 (1973).\nWith respect to the present proceeding, a spouse\u2019s right of dissent is statutory, and is provided for by Chapter 30 of the North Carolina General Statutes. See generally Vinson v. Chappell, 275 N.C. 234, 166 S.E. 2d 686 (1969). To establish the right to dissent, a spouse must make a timely filing pursuant to G.S. 30-2 and must show his or her entitlement to that right under G.S. 30-1. The right of dissent is a matter of mathematical determination, and necessitates a valuation of the property passing to the surviving spouse under the will and outside the will as of the date of the death of the deceased spouse as provided for by statute. In re Estate of Connor, 5 N.C. App. 228, 168 S.E. 2d 245 (1969). Determination and establishment of value made by statutory procedures \u201cshall be final for determining the right of dissent and shall be used exclusively for this purpose.\u201d G.S. 30-l(c).\nIt is apparent from the foregoing authority that the purpose and intent in adopting Chapter 30 was to give the surviving spouse an alternative to the amounts which would have been received under the decedent spouse\u2019s will. Although certain rights and duties of the parties are determined under Chapter 30, a proceeding to determine the right to dissent does not require a construction of the provisions of the will itself. Unlike a caveat proceeding where the right to inherit at all is determined, a proceeding to determine the right to dissent merely involves a valuation of the property transferred under the will. The use of a will or trust agreement under Chapter 30 is to establish the parties\u2019 statutory rights and duties, not to determine what, if any, property is passed by such instruments. We, therefore, believe and so hold that a proceeding under Chapter 30 is beyond the purview of G.S. 6-21(2). Such a proceeding is neither a caveat to a will, nor does it \u201crequire the construction of any will or trust agreement, or fix the rights and duties of parties thereunder.\u201d (Emphasis added.) G.S. 6-21(2).\nIt follows, therefore, that the trial court had no authority under G.S. 6-21(2) to tax as costs the attorneys\u2019 fees as requested by the widow\u2019s attorneys. In addition, we find no other provision in that section which would allow attorneys\u2019 fees to be taxed as costs in this situation. In the absence of express statutory authority, attorneys\u2019 fees are not allowable as part of the court costs in civil actions. City of Charlotte v. McNeely, 281 N.C. 684, 190 S.E. 2d 179 (1972).\nReversed.\nJudges Vaughn and Arnold concur.",
        "type": "majority",
        "author": "MORRIS, Chief Judge."
      }
    ],
    "attorneys": [
      "Nancy Fields Fadum for executor appellant.",
      "John C. Randall and E. C. Harris for appellee."
    ],
    "corrections": "",
    "head_matter": "IN THE MATTER OF THE ESTATE OF JOHN C. KIRKMAN, SR., DECEASED\nNo. 7914SC852\n(Filed 1 July 1980)\nWills \u00a7 61; Attorneys \u00a7 7.5- proceeding to determine spouse\u2019s right to dissent - attorney\u2019s fees improperly taxed as costs against estate\nThe trial court erred in determining that a proceeding to determine the right of dissent from a will by a surviving widow is a proceeding within the meaning of G.S. 6-21(2), and the court erred in taxing the fees for the widow\u2019s attorneys as costs against the estate of the testator, since a spouse\u2019s right to dissent is provided for by G.S. Chapter 30, and a proceeding under that Chapter is beyond the purview of G.S. 6-21(2), as such a proceeding is not a caveat to a will, nor does it require the construction of any will or trust agreement or fix the rights and duties of parties thereunder.\nAppeal by Executor of the Estate of John C. Kirkman, Sr., from Kivett, Judge. Order entered 13 June 1979 in Superior Court, Durham County. Heard in the Court of Appeals 19 March 1980.\nTestator, John C. Kirkman, Sr., died on 12 December 1974 leaving a will which was duly probated on 31 December 1974. On 19 May 1975, testator\u2019s surviving spouse, Minnie H. Kirkman, filed a dissent to the will, as provided for by Chapter 30 of the North Carolina General Statutes. After substantial litigation, the wife established her right to dissent from testator\u2019s will, as reported in In re Kirkman, 38 N.C. App. 515, 248 S.E. 2d 438 (1978), cert, denied and appeal dismissed, 296 N.C. 584, 254 S.E. 2d 31 (1979). Counsel for the widow in the dissent proceedings filed petitions requesting that their fees resulting from the litigation be taxed as costs to the estate of testator. On 17 May 1979, the Clerk of Superior Court for Durham County allowed the requests, concluding as a matter of law that \u201ca proceeding to determine the right of dissent from a will by a surviving widow is a proceeding within the meaning of North Carolina General Statutes 6-21(2) ... .\u201d On 21 May 1979, the executor filed notice of appeal from the order, and the matter was heard in the Superior Court. On 13 June 1979, the trial court affirmed the Clerk\u2019s ruling, concluding \u201cas a matter of law that a proceeding to determine the right of dissent from a will by a surviving spouse is a proceeding within the meaning of North Carolina General Statutes 6-21(2), such matter being a proceeding which fixes the rights and duties of the parties under a will ... .\u201d\nFrom this ruling and an order awarding attorneys\u2019 fees as costs of the action executor appeals.\nNancy Fields Fadum for executor appellant.\nJohn C. Randall and E. C. Harris for appellee."
  },
  "file_name": "0479-01",
  "first_page_order": 515,
  "last_page_order": 518
}