{
  "id": 8548403,
  "name": "LENORE HELLER v. ALFRED HELLER and THEODORA HELLER GERTNER",
  "name_abbreviation": "Heller v. Heller",
  "decision_date": "1969-12-31",
  "docket_number": "No. 693SC550",
  "first_page": "120",
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  "last_updated": "2023-07-14T21:45:53.911218+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Campbell and Graham, JJ., concur."
    ],
    "parties": [
      "LENORE HELLER v. ALFRED HELLER and THEODORA HELLER GERTNER"
    ],
    "opinions": [
      {
        "text": "PARKER, J.\nUpon the death of a married person intestate, the surviving spouse may acquire either of two alternative rights in the estate of the decedent: first, the surviving spouse may receive the share as specified in G.S. 29-14 (or in G.S. 29-21 if applicable); or second, in lieu of such share, if timely election is made in the manner specified in G.S. 29-30 (e), the surviving spouse shall be entitled to take the life estate provided for in G.S. 29-30.\nIn the present case under the facts alleged in the complaint, which on demurrer are to be taken as true, plaintiff\u2019s husband died intestate survived by two children. G.S. 29-14(2) applied and plaintiff, as surviving spouse, became entitled upon the death of her husband to one-third of the personal property and a one-third undivided interest in the real property. For purposes of G.S. 29-14 her husband\u2019s estate would not include, however, property which he had conveyed away prior to his death, even though she had not joined in the conveyance. The real and personal property of any married person in this State, acquired before or after marriage, remains the sole and separate property of such married person, and \u201cmay be devised, bequeathed and conveyed by such married person subject to such regulations and limitations as the General Assembly may prescribe.\u201d G.S. 52-1. Subject to such regulations and limitations, \u201cevery married person is authorized to contract and deal so as to affect his or her real and personal property in the same manner and with the same effect as if he or she were unmarried.\u201d G.S. 52-2. Insofar as concerns any rights which the spouse of a married person might acquire by virtue of the provisions of G.S. 29-14, the General Assembly has prescribed no regulation or limitations relating to the conveyance during lifetime by such married person of his or her separate real or personal property. Therefore, the deed described in the complaint by which plaintiff\u2019s husband conveyed his separate real property to his two children was effective to convey title to them, free from any claim of plaintiff under G.S. 29-14, and her complaint alleges no cause of action based on any rights provided her under that statute.\n\u201cDower, as such, has been abolished in North Carolina, but G.S. 29-30 preserves to a surviving spouse the benefits of the former rights of dower and curtesy.\u201d Smith v. Smith, 265 N.C. 18, 30, 143 S.E. 2d 300, 308. To protect these rights, the General Assembly has prescribed regulations and limitations on the right of a married person to convey his or her real property free from the elective life estate provided for his or her spouse by G.S. 29-30. By express terms of that statute this estate is:\n\u201ca life estate in one third in value of all the real estate of which the deceased spouse was seized and possessed of an estate of inheritance at any time during coverture, except that real estate as to which the surviving spouse:\n\u201c(1) Has waived his or her rights by joining with the other spouse in a conveyance thereof, or\n\u201c(2) Has released or quitclaimed his or her interest therein in accordance with G.S. 52-10, or\n\u201c(3) Was not required by law to join in conveyance thereof in order to bar the elective life estate, or\n\u201c(4) Is otherwise not legally entitled to the election provided in this section.\u201d\nWhen plaintiff\u2019s husband conveyed his land to his two children, in order for plaintiff to have waived her elective life estate as provided for in G.S. 29-30 it would have been necessary for plaintiff herself to execute the conveyance thereof, \u201cand due proof or acknowledgment thereof must be made and certified as provided by law.\u201d G.S. 39-7(a). Plaintiff alleged that her husband\u2019s conveyance was \u201cwithout plaintiff\u2019s knowledge nor has plaintiff since ratified or otherwise joined in said conveyance.\u201d Therefore, accepting as true her further allegation that her husband\u2019s separate conveyance \u201cwas an attempt by the said Samuel Heller and the defendants to defraud and deprive plaintiff of her marital rights in said property,\u201d under the other facts alleged in the complaint the attempt was wholly ineffectual. No matter what fraudulent intent her husband and the two defendants may have harbored, under the facts alleged it was simply impossible for them to have impaired plaintiff\u2019s elective rights provided her under G.S. 29-30. If, following her husband\u2019s death, she had elected in apt time and in the manner specified in the statute, she would have been entitled to receive all rights provided for her under G.S. 29-30 entirely unaffected by his separate deed to defendants which she now attacks. The ineffectual attempt to defraud which plaintiff here alleged gave rise to no cause of action. None was necessary to protect plaintiff\u2019s rights under G.S. 29-30.\nPlaintiff alleged her husband died intestate on 16 April 1965 and that no legal representative has been appointed to administer his estate. Therefore, G.S. 29-30 (c) (2) controls. This section provides that the election of the surviving spouse to take the elective life estate shall be made \u201cwithin twelve months after the death of the deceased spouse if letters of administration are not issued within that period.\u201d Subsection (h) of that statute provides:\n\u201cIf no election is made in the manner and within the time provided for in subsection (c) the surviving spouse shall be conclusively deemed to have waived his or her right to elect to take under the provisions of this section, and any interest which the surviving spouse may have had in the real estate of the deceased spouse by virtue of this section shall terminate.\u201d\nThis action was commenced and the complaint filed on 2 August 1966, more than twelve months after the death of plaintiff\u2019s husband. The complaint contains no allegation that plaintiff has ever elected to take the life estate provided for her by G.S. 29-30.\nPlaintiff\u2019s contention that she still has the right to make the election because of the language of G.S. 29-30(c) (4) is without merit. That subsection provides that if litigation that affects the share of the surviving spouse in the estate is pending, then the election may be made within such reasonable time as may be allowed by writtexr order of the clerk of superior court. Plaintiff points to the case presently before us as the \u201cpending\u201d litigation affecting her share in her husband\u2019s estate. This ignores the fact that this case was not commenced and therefore was not pending at the time her right to make the election otherwise expired under G.S. 29-30 (c)(2). By failing to take timely action her right to make the election expired. She could not thereafter revive it by the simple expedient of bringing an action purporting to affect her share in her husband\u2019s estate.\nFinally, the complaint alleges no facts to support plaintiff\u2019s charge of fraud on the part of the defendants. Plaintiff\u2019s allegation that her husband\u2019s conveyance to the defendants, who were his children and therefore natural objects of his bounty, was made without consideration and at a time when her husband was living with her but without her knowledge or joinder, gives rise to no cause of action. Nor does the additional allegation that two months after the conveyance her husband abandoned her without just cause and went to live with the defendants, serve to state any cause of action against the defendants. The broadside allegation, made on information and belief, that the conveyance was \u201can attempt\u201d by her husband and the defendants \u201cto defraud and deprive the plaintiff of her marital rights in said property,\u201d added nothing of legal significance. As noted above, the attempt, if made, was legally ineffective; and to characterize a transaction as fraudulent is of no avail unless the facts which make it so are particularly alleged. \u201cWhatever may be the facts beyond the complaint, the pleading will be of no avail unless it sets up with sufficient particularity facts from which legal fraud arises or, where proof of actual fraud is necessary to relief, specifically alleges the fraud \u2014 that is, the fraudulent intent \u2014 -and particularizes the acts complained of as fraudulent so that the court may judge whether they are at least prima facie of that character.\u201d Development Co. v. Bearden, 227 N.C. 124, 127, 41 S.E. 2d 85, 87.\nPlaintiff seeks to rely on Everett v. Gainer, 269 N.C. 528, 153 S.E. 2d 90, and other cases holding that a voluntary conveyance or one made for a grossly inadequate consideration by a grantor who fails to retain assets fully sufficient to pay his then existing debts is fraudulent as to existing creditors of the grantor and may be set aside on suit of such a creditor without a showing of actual fraud on the part of the grantee. These cases are not here apposite. Plaintiff did not occupy the position of a creditor of her husband when the conveyance here attacked was made. Oil Co. v. Richardson, 271 N.C. 696, 157 S.E. 2d 369, is distinguishable. In that case the wife, who was in possession of her husband\u2019s land and was defendant in an ejectment action brought by his grantee, alleged that she had already obtained an order for alimony 'pendente lite against her husband when he executed the voluntary conveyance to the plaintiff, and that this was executed by the husband and received by the plaintiff for the purpose of defeating, delaying and defrauding the wife\u2019s rights under the alimony order. The court held these allegations sufficient to state a valid defense and counterclaim to plaintiff\u2019s ejectment suit against her. In the case presently before us there is no allegation that plaintiff ever obtained any award of alimony against her husband or that he was called upon and failed to furnish her support. Nor is there any allegation that he failed to retain other assets sufficient to discharge his obligations.\nThe judgment sustaining the demurrer to plaintiff\u2019s complaint is\nAffirmed.\nCampbell and Graham, JJ., concur.",
        "type": "majority",
        "author": "PARKER, J."
      }
    ],
    "attorneys": [
      "Harrell <fe Mattox, by Fred T. Mattox for plaintiff appellant.",
      "Lewis & Bouse, by Robert D. Rouse, Jr., for Alfred Heller, defendant appellee."
    ],
    "corrections": "",
    "head_matter": "LENORE HELLER v. ALFRED HELLER and THEODORA HELLER GERTNER\nNo. 693SC550\n(Filed 31 December 1969)\n1. Descent and Distribution \u00a7 1\u2014 intestate share of surviving spouse\nWhere plaintiff\u2019s husband died intestate survived by two children, plaintiff, as surviving spouse, became entitled to one-third of the personal property and a one-third undivided interest in the real property in her husband\u2019s estate. G.S. 29-14(2).\n2. Husband and Wife \u00a7 1\u2014 property of married persons \u2014 nature and rights\nThe real and personal property of any married person in this State, acquired before or after marriage, remains the sole and separate property of such married person and may be devised, bequeathed and conveyed by the married person subject to regulations and limitations prescribed by the General Assembly. G.S. 52-1.\nS. Descent and Distribution \u00a7 1\u2014 intestate succession \u2014 right of spouse \u2014 conveyance of separate property \u2014 limitations\nInsofar as concerns any rights which the spouse of a married person might acquire by virtue of G.S. 29-14, the General Assembly has prescribed no regulation or limitations relating to the conveyance during lifetime by such married person of his or her separate real or personal property.\n4. Descent and Distribution \u00a7 1\u2014 intestate succession \u2014 right of surviving spouse \u2014 conveyance of separate real property during lifetime of deceased spouse\nDeed by plaintiff\u2019s husband, which was executed while he and plaintiff were living together and which conveyed his separate real property to his children by a prior marriage, was effective to convey title to the children free from any claims of plaintiff under statute defining intestate share of surviving spouse. G.S. 29-14.\n5. Dower and Curtesy \u00a7\u00a7 1, 9\u2014 abolition \u2014 limitations on present-day conveyances by spouses\nAlthough dower and curtesy, as such, have been abolished in this State, the General Assembly has prescribed regulations and limitations on the right of a married person to convey his or her real property free from the elective life estate provided for his or her spouse by G.S. 29-30.\n6. Descent and Distribution \u00a7 1\u2014 intestate succession \u2014 rights of widow \u2014 conveyance by husband of separate realty \u2014 fraud \u2014 election of life estate\nIn an action by plaintiff, a widow, to set aside a deed executed by plaintiff\u2019s husband, which conveyed his separate realty to his children of a prior marriage, plaintiff\u2019s allegations that the conveyance was without her knowledge or joinder and was an attempt by her husband and the defendants to defraud her of her elective life estate in the realty, held, ineffectual to state a cause of action, where (1) plaintiff would have been entitled to her elective life estate, regardless of fraud, if she had made an election in the time and manner prescribed by statute, and (2) plaintiff\u2019s failure to make an election within the required twelve months after the death of her husband effectively terminated any interest she might have had in the realty. G.S. 29-30(c) (2).\n7. Descent and Distribution \u00a7 1\u2014 election of life estate \u2014 widow\u2019s timely election \u2014 pending litigation\nWhere widow\u2019s right to make election of life estate in deceased husband\u2019s realty expired through her failure to make timely election within twelve months after his death, an action by the widow, commenced after time for election had expired, to declare void a deed executed by her husband which conveyed the husband\u2019s separate realty to his children of a prior marriage, held not to constitute \u201cpending\u201d litigation within the meaning of the statute providing that election of life estate may be made within a reasonable time by order of superior court clerk if litigation affecting the estate is pending. G.S. 29-30(e)(4).\n8. Descent and Distribution \u00a7 1\u2014 intestate succession \u2014 rights of widow \u2014 action to set aside husband\u2019s conveyance \u2014 fraud\nIn an action by plaintiff, a widow, to set aside a deed conveying realty from plaintiff\u2019s husband to his children of a prior marriage, plaintiff\u2019s allegations (1) that her husband\u2019s conveyance of his separate realty to his children, the defendants, was made without consideration and without her knowledge or joinder, (2) that two months after the conveyance her husband abandoned her without just cause and went to live with the defendants, and (3) that the conveyance was an attempt by her husband and the defendants to defraud and deprive plaintiff of her marital rights in the realty, held insufficient to state a cause of action for fraud.\n9. Fraud \u00a7 9\u2014 pleading\nTo characterize a transaction as fraudulent is of no avail unless the facts which make it so are particularly alleged.\nAppeal by plaintiff from Fountain, J., 16 September 1969 Session of Pitt Superior Court.\nThis is a civil action to have a deed declared void and to obtain an accounting for rents and profits. In her complaint filed 2 August 1966, plaintiff alleged:\nOn 1 December 1963 plaintiff was married to Samuel Heller and remained his wife until his death on 16 April 1965. On 10 August 1964 Heller, while living with plaintiff, conveyed by deed certain described real property in Pitt County, N. C., to defendants, who are his only living issue by a prior marriage. Plaintiff is informed and believes that this conveyance was without consideration and \u201cwas an attempt by the said Samuel Heller and the defendants to defraud and deprive plaintiff of her marital rights in said property. Said conveyance was without plaintiff\u2019s knowledge nor has plaintiff since ratified or otherwise joined in said conveyance.\u201d On 14 October 1964 Heller abandoned plaintiff without justification and went to live with the defendants. On 16 April 1965 Heller died intestate, a citizen of North Carolina. No legal representative has been appointed to administer his estate. Plaintiff has made repeated demands upon the defendant \u201cfor possession of her one-third undivided interest in said property,\u201d but defendants have refused to vacate. Plaintiff prayed for judgment declaring the deed void \u201cinsofar as it purports to encumber the plaintiff\u2019s one-third undivided interest in the land described therein,\u201d and for an accounting and one-third of the rents and profits on the premises from 16 April 1965.\nDefendant demurred to the complaint for failure to state a cause of action in that: (1) it does not affirmatively appear from the allegations of the complaint that the plaintiff exercised her marital rights as provided in G.S. 29-30, and (2) the complaint fails to set up with particularity the facts of any alleged fraud.\nThe demurrer was sustained and plaintiff appealed.\nHarrell <fe Mattox, by Fred T. Mattox for plaintiff appellant.\nLewis & Bouse, by Robert D. Rouse, Jr., for Alfred Heller, defendant appellee."
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