{ "id": 8527852, "name": "IN THE MATTER OF THE ESTATE OF VIDA P. FRANCIS, Deceased", "name_abbreviation": "In re the Estate of Francis", "decision_date": "1989-08-01", "docket_number": "No. 8917SC159", "first_page": "744", "last_page": "749", "citations": [ { "type": "official", "cite": "94 N.C. App. 744" } ], "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": "373 S.E. 2d 547", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "323 N.C. 365", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2565801, 2561004, 2561552, 2560886, 2560286 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0365-03", "/nc/323/0365-01", "/nc/323/0365-05", "/nc/323/0365-02", "/nc/323/0365-04" ] }, { "cite": "368 S.E. 2d 7", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "11" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 177", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523222 ], "year": 1988, "pin_cites": [ { "page": "184" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0177-01" ] }, { "cite": "80 S.E. 2d 267", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "239 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627541 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/nc/239/0513-01" ] }, { "cite": "124 S.E. 566", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1924, "pin_cites": [ { "page": "567-68", "parenthetical": "citations omitted" }, { "page": "567" } ], "opinion_index": 0 }, { "cite": "188 N.C. 200", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653506 ], "weight": 2, "year": 1924, "pin_cites": [ { "page": "203", "parenthetical": "citations omitted" }, { "page": "203" } ], "opinion_index": 0, "case_paths": [ "/nc/188/0200-01" ] }, { "cite": "252 S.E. 2d 761", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "766" } ], "opinion_index": 0 }, { "cite": "296 N.C. 590", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569764 ], "year": 1979, "pin_cites": [ { "page": "597" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0590-01" ] }, { "cite": "314 S.E. 2d 809", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "68 N.C. App. 177", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526840 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/68/0177-01" ] }, { "cite": "261 S.E. 2d 289", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1980, "pin_cites": [ { "page": "291" }, { "page": "292" } ], "opinion_index": 0 }, { "cite": "44 N.C. App. 578", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554413 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/44/0578-01" ] } ], "analysis": { "cardinality": 552, "char_count": 13239, "ocr_confidence": 0.756, "pagerank": { "raw": 2.1937869685226118e-07, "percentile": 0.7742352932545488 }, "sha256": "92a115ef079a9e8d7a31c381b82d69326e42d76607c0ad8a41f51cd42ce7031f", "simhash": "1:6356758abcbc1222", "word_count": 2242 }, "last_updated": "2023-07-14T20:07:12.068465+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Phillips and Cozort concur." ], "parties": [ "IN THE MATTER OF THE ESTATE OF VIDA P. FRANCIS, Deceased" ], "opinions": [ { "text": "LEWIS, Judge.\nOn 12 April 1967, the testatrix executed a will directing that all funds in savings accounts with three Mount Airy banks be divided equally among certain named relatives, including Iva P. Marshall, the testatrix\u2019s sister and the appellant in this case. This will left the remainder of her estate to Mr. Francis and named Mr. Francis executor. A codicil named her brother-in-law, Durard Marshall, and appellant as executors. Letters testamentary were issued to appellant following the testatrix\u2019s death on 13 September 1987. Appellant filed a 90 day inventory on 6 January 1988 listing the following assets: one-half the value of four joint bank accounts for a total of $46,274.48; cash on hand at death, $45.38; household and kitchen furnishings estimated value, $1,023.50; medicare check, $5.20; refund of Blue Cross and Blue Shield of North Carolina premium, $29.10; one-half the value of real property held as tenants by entirety, $14,399.00. The joint bank accounts with right of sur-vivorship were held with appellant.\nMr. Francis, the surviving spouse, dissented from the will. The clerk found the testatrix\u2019s net estate included the following assets:\nJoint bank accounts with the right of survivorship payable''to Iva P. Marshall $92,548.96\nCash on hand at death 45.38\nMedicare check 5.20\nBlue Cross Blue Shield of North Carolina\nrefund of premium 29.10\nPersonal property of Vida P. Francis located in the house as appraised by Dick Lawson 2,055.00\nValue of real property owned as tenants by the entirety 28,798.00\nThe clerk determined Mr. Francis was entitled to dissent from his wife\u2019s will under the provisions of G.S. 30-l(a)(2). Upon appeal by appellant, the Superior Court adopted the clerk\u2019s findings of fact and concluded that\nthe public policy favoring protection of a surviving spouse against disinheritance, which has been adopted and expressed by our legislature, should prevail. Moore v. Jones, 44 N.C. App. 578, 261 S.E. 2d 289 (1980). The testatrix, Vida P. Francis, deposited all of the funds in the joint bank accounts with the right of survivorship. She retained complete control and authority to make withdrawals thereby in effect retaining complete control of the assets up until the time of her death. Myers v. Myers, 68 N.C. App. 177, 314 S.E. 2d 809 (1984).\nFrom the Superior Court\u2019s affirmance of the Clerk\u2019s order allowing dissent, appellant, as executrix and individually, appeals.\nAppellant brings forward ten assignments of error grouped as three arguments. First, she assigns error to the trial court\u2019s adopting as its own the clerk\u2019s findings of fact regarding the value of the property passing to Mr. Francis under and outside the will. Second, she contends the trial court erred in concluding the joint bank accounts with right of survivorship in appellant should be included in the net estate for purposes of determining Mr. Francis\u2019 right to dissent. Finally, she contends the court erred in not separately stating its conclusions of law. We have reviewed the assignments of error and find them to be without merit.\nThe testatrix was not survived by any child, lineal descendant of a child or parent. Therefore, Mr. Francis may dissent from her will if the total value of property he received under and outside the will is less than one-half his wife\u2019s net estate. G.S. 30-l(a)(2). In this case, \u201c[t]o determine whether a surviving spouse has the right to dissent from the deceased spouse\u2019s will it is necessary to ascertain and compare two figures. The first is the aggregate value of the property passing to the surviving spouse under the will and outside the will.\u201d Phillips v. Phillips, 296 N.C. 590, 597, 252 S.E. 2d 761, 766 (1979). The second is the value of one-half of the deceased spouse\u2019s net estate. Appellant brings forward assignments of error relating to both figures.\nFirst, we address the assignments of error relating to the value of the net estate. Appellant contends the court erred in finding \u201c[t]he value of the decedent\u2019s net estate is at least $123,285.64, less family allowances, costs of administration and all lawful claims against the estate.\u201d Net estate is defined in G.S. 29-2(5) as \u201cthe estate of a decedent, exclusive of family allowances, costs of administration, and all lawful claims against the estate.\u201d Appellant contends the value is erroneous because it includes the entire $28,798.00 value of the real property. We agree.\nThe real property was owned by the testatrix and Mr. Francis as tenants by the entirety.\nThis tenancy by the entirety takes its origin from the common law when husband and wife were regarded as one person, and a conveyance to them by name was a conveyance in law to but one person. The estate rests upon the doctrine of the unity of person, and, upon the death of one, the whole belongs to the other, not solely by right of survivorship, but also by virtue of the grant which vested the entire estate in each grantee. These two individuals, by virtue of their marital relationship, acquire the entire estate, and each is deemed to be seized of the whole, and not of a moiety or any undivided portion thereof. They are seized of the whole, because at common law they were considered but one person; and the estate thus created has never been destroyed or changed by statute in North Carolina.\nDavis v. Bass, 188 N.C. 200, 203, 124 S.E. 566, 567-68 (1924) (citations omitted). Upon the death of the first to die, the survivor becomes the sole owner of the real property, and no interest passes to the estate of the deceased spouse. Underwood v. Ward, 239 N.C. 513, 80 S.E. 2d 267 (1954); Davis v. Bass, supra. The value of the real property owned by the couple as tenants by the entirety should not be included in the testatrix\u2019s net estate for purposes of the dissent statute.\nAppellant also contends it was error to include in the net estate certain bank accounts held by the testatrix and appellant as joint tenants with right of survivorship. She contends that upon the testatrix\u2019s death the bank accounts with right of survivorship were owned solely by appellant and are not part of the net estate for purposes of the dissent statute. We disagree.\nIn Moore v. Jones, 44 N.C. App. 578, 261 S.E. 2d 289 (1980), this Court addressed whether a net estate included the value of an inter vivos trust in which the husband retained the right during his lifetime to withdraw trust assets, change beneficiaries and change the trust terms. The Court acknowledged that the trust met all requirements for a valid trust under state law. The Court also determined that the statutory right to dissent expressed the public policy of this state. The question presented was \u201cwhether that public policy or the inter vivos trust created by [the] husband which circumvents that public policy should prevail.\u201d Id. at 582, 261 S.E. 2d at 291. The Court held \u201cthat the public policy favoring protection of a surviving spouse against disinheritance, which has been adopted and expressed by our legislature by enactment of Article 1 of G.S. Ch. 30, should prevail.\u201d Id. at 583, 261 S.E. 2d at 292. Finding that the testatrix had retained until the moment of death the same powers over the trust assets that he had before creating the trust, the Court determined those assets should be considered a part of his net estate in determining the spouse\u2019s right to dissent. Id. In this case, the testatrix retained complete control over the assets of the bank account until the moment of her death. We believe the public policy expressed in the dissent statutes will be served by including in the net estate for purposes of the dissent statute the value of the bank accounts with right of survivorship in appellant.\nNext we address the assignment of error relating to the value of the property passing to Mr. Francis. Appellant contends the trial court erred by adopting the clerk\u2019s finding that \u201cthe value of the properties passing to the surviving spouse outside the Will and in accordance with the provisions of the Will does not exceed $14,399.00.\u201d At the testator\u2019s death, Mr. Francis received $45.38 cash on hand at death, a $5.20 Medicare check, a $29.10 insurance premium refund and personal property located in the home. Thus, it appears the finding is incorrect in that the value of the property passing to Mr. Francis does exceed $14,399.00. However, this finding does not accurately reflect the value of Mr. Francis\u2019 share. Appellant contends that one-half the value of the real property owned as tenants by the entirety should be included in the value of property passing to Mr. Francis under and outside the will. As stated above, upon the death of the first to die, the survivor owns the property \u201cnot solely by right of survivorship, but also by virtue of the grant which vested the entire estate in each [spouse].\u201d Davis v. Bass, 188 N.C. at 203, 124 S.E. at 567. G.S. 30-l(b)(4) requires inclusion of property passing to the surviving spouse outside the will. Subsection (4) includes, by way of illustration, the value of real property owned by decedent and the surviving spouse as tenants by the entirety \u201cexcept that no property or interest in property shall be so included to the extent that the surviving spouse . . . contributed to its purchase price.\u201d (Emphasis added.) There is no evidence that the surviving spouse contributed to the purchase price. Absent any evidence of contribution on the part of the surviving spouse, the general proposition stated in subsection four controls and the entire value of the real property is included in the value of property passing to him outside the will.\nAppellant also contends the trial court erred in not separately stating its conclusions of law. G.S. 1A-1, Rule 52(a)(1) does require a trial court sitting without a jury to \u201cfind the facts specially and state separately its conclusions of law thereon.\u201d In this case, the trial court adopted the clerk\u2019s very specific findings of fact and made the conclusions set forth above in a single paragraph. \u201cRule 52(a)(1) requires only that the trial court\u2019s findings of fact be distinguishable from its conclusions of law.\u201d Mitchell v. Lowery, 90 N.C. App. 177, 184, 368 S.E. 2d 7, 11, disc. rev. denied, 323 N.C. 365, 373 S.E. 2d 547 (1988). This assignment of error is without merit.\nThe case is remanded to the Clerk of Superior Court for disposition in accordance with this opinion.\nRemanded.\nJudges Phillips and Cozort concur.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "Johnson, Bell & Francisco, by George Francisco, for petitioner-appellee C. A. Francis.", "V. Talmage Hiatt for respondent-appellant Iva P. Marshall." ], "corrections": "", "head_matter": "IN THE MATTER OF THE ESTATE OF VIDA P. FRANCIS, Deceased\nNo. 8917SC159\n(Filed 1 August 1989)\n1. Wills \u00a7 61\u2014 dissent by spouse \u2014value of net estate \u2014 real property\nThe Clerk of Court erred in a spousal dissent from a will by including in the value of the net estate the entire value of the real property. Upon the death of the first to die, the survivor becomes the sole owner of the real property, and no interest passes to the estate of the deceased spouse, so that the value of the real estate owned by the couple as tenants by the entirety should not be included in the testatrix\u2019s net estate for purposes of the dissent statute. N.C.G.S. \u00a7 29-2(5).\n2. Wills \u00a7 61\u2014 dissent from will \u2014 value of estate \u2014 bank accounts\nThe Clerk of Court correctly included in the net estate for purposes of spousal dissent certain bank accounts held by the testatrix and the dissenting spouse as joint tenants with right of survivorship where the testatrix had retained complete control over the assets until the moment of her death.\n3. Wills \u00a7 61\u2014 dissent from will \u2014 value of property passing to surviving spouse \u2014real property\nThe entire value of real property owned as tenants by the entirety should be included in the value of property passing to the surviving spouse outside the will in a spousal dissent, absent evidence of contribution to the purchase price by the surviving spouse. N.C.G.S. \u00a7 30-l(b)(4).\n4. Rules of Civil Procedure \u00a7 52.1\u2014 spousal dissent \u2014 conclusions and findings \u2014 adequate\nThe trial court did not err in a spousal dissent by adopting the Clerk of Court\u2019s very specific findings and making its con-elusions in a single paragraph. N.C.G.S. \u00a7 1A-1, Rule 52(a)(1) requires only that the trial court\u2019s findings of fact be distinguishable from its conclusions of law.\nAPPEAL by respondent from Mills (F. Fetzer), Judge. Order entered 2 November 1988 in Superior Court, SURRY County. Heard in the Court of Appeals 11 July 1989.\nThe testatrix, Vida P. Francis, died on 13 September 1987 survived by no lineal descendant or parent. Following the filing of a 90 day inventory, the surviving spouse, C. A. Francis, dissented from the will pursuant to G.S. 30-1 to 30-3. On 18 July 1988, the Clerk of Superior Court made findings of fact and conclusions of law and ordered that Mr. Francis was entitled to dissent from the will. The Clerk found Mr. Francis was entitled to a monetary award equal to one-half the net estate value. Iva P. Marshall, executrix of the estate and a beneficiary under the will, appealed to the Superior Court. On 2 November 1988, the Superior Court affirmed the Clerk\u2019s order. Iva Marshall, as executrix and individually, appeals.\nJohnson, Bell & Francisco, by George Francisco, for petitioner-appellee C. A. Francis.\nV. Talmage Hiatt for respondent-appellant Iva P. Marshall." }, "file_name": "0744-01", "first_page_order": 774, "last_page_order": 779 }