{
  "id": 8565030,
  "name": "MARVIN G. ABBOTT, Executor of the Estate of J. S. ABBOTT, Deceased, v. CARRIE NIXON ABBOTT",
  "name_abbreviation": "Abbott v. Abbott",
  "decision_date": "1967-03-01",
  "docket_number": "",
  "first_page": "579",
  "last_page": "580",
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    {
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      "cite": "269 N.C. 579"
    }
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  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
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      "cite": "114 S.E. 2d 261",
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      "reporter": "S.E.2d",
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    {
      "cite": "252 N.C. 551",
      "category": "reporters:state",
      "reporter": "N.C.",
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  "last_updated": "2023-07-14T15:36:18.626474+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "MARVIN G. ABBOTT, Executor of the Estate of J. S. ABBOTT, Deceased, v. CARRIE NIXON ABBOTT."
    ],
    "opinions": [
      {
        "text": "Pee Cueiam.\nSince the plaintiff alleges that he is the duly qualified executor of the estate of the deceased, it is apparent upon the face of the complaint that the deceased died testate. The will is not made part of the complaint nor are its provisions referred to therein. Thus, it does not appear that the will contains any bequest or devise to or for the benefit of the defendant or that it created in or conferred upon her any right or interest in any property owned by the deceased at his death. Obviously, the defendant was not named executrix. It is not alleged in the complaint that the defendant has attempted to dissent from the will or that she has filed any claim against the estate, either as creditor, distributee or widow.\nThe plaintiff executor, while asserting his right to administer the estate by reason of the will, cannot assert its invalidity on the ground of lack of testamentary capacity in the testator. See In Re Will of Covington, 252 N.C. 551, 555, 114 S.E. 2d 261. He alleges that prior to the acts of the defendant of which he complains, the testator was \u201cmentally incompetent to manage his business affairs and/or to understand the extent of his holdings.\u201d He does not allege that this mental condition continued to the death of the testator. If it did, that circumstance would not revoke the will in whole or in part. G.S. 31-5.7; Warner v. Beach, 4 Gray (Mass.) 162; Atkinson on Wills, 2d ed., \u00a7 85; Williams on Executors 19, note (r), 191; 57 Am. Jur., Wills, \u00a7 525; 95 C.J.S., Wills, \u00a7 295.\nThe right of the widow to take under her husband\u2019s will that which he saw fit to bequeath or devise to her is not among the rights which G.S. 31A-1 declares forfeited by her abandonment of him.\nSince the complaint alleges no claim or assertion of any right by the defendant in or to any property of the estate, it alleges no jus-ticiable controversy between the parties and, therefore, no cause of action. Consequently, the demurrer was properly sustained.\nAffirmed.",
        "type": "majority",
        "author": "Pee Cueiam."
      }
    ],
    "attorneys": [
      "W. C. Morse, Jr., and J. W. Jennette for plaintiff appellant.",
      "Small \u25a0& Small for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "MARVIN G. ABBOTT, Executor of the Estate of J. S. ABBOTT, Deceased, v. CARRIE NIXON ABBOTT.\n(Filed 1 March, 1967.)\n1. Wills \u00a7 15\u2014\nA plaintiff executor asserting his right to administer the estate by-reason of the will cannot assert the invalidity of the will on the ground of mental incapacity of the testator.\n2. Wills \u00a7 7\u2014\nThe fact that testator becomes mentally incompetent and is thereafter unable to change the will, even if such incapacity continues until testator\u2019s death, does not revoke the will. G.S. 81-5.7.\n3. Wills \u00a7 60.1\u2014\nThe right of the widow to take a devise or bequest under the will of her husband is not forfeited by her abandonment of him. G.S. 31A-1.\n4. Wills \u00a7 71\u2014\nIn an action by an executor for a declaration that testator\u2019s widow was not entitled to share in the estate because she had abandoned him, the complaint which fails to allege that the widow had attempted to dissent from the will or that she had filed any claim against the estate, either as creditor, distributee, or widow, or that the will contained any bequest or devise for her benefit, fails to allege a justiciable controversy, and demurrer thereto is properly sustained.\nAppeal by plaintiff from Bundy, J., at the September 1966 Session of CAMDEN.\nThe defendant is the widow of the plaintiff\u2019s testator. The complaint, having been twice amended, now alleges: The defendant and the plaintiff\u2019s testator were married and lived together until 30 December 1964, when she, without cause or provocation, removed herself and her belongings from the home and abandoned him knowing that he was bedridden and unable to care for himself; the testator, \u201cprior to the month of December 1964,\u201d was mentally incompetent to manage his business affairs or to understand the extent of his holdings; he died on 23 May 1965, the defendant never having returned to his home; and, by reason of her wilful abandonment of the testator, the defendant has \u201clost those certain rights specified in Article I, \u00a7 31A-1, of the General Statutes of North Carolina * * * and by reason thereof is not entitled to share in the estate of the deceased.\u201d The prayer of the complaint is for judgment that the defendant \u201chas no part, right or interest in the estate,\u201d and that the plaintiff executor be empowered by the judgment of the court to settle the estate as if the testator had died unmarried.\nThe defendant demurred to the complaint on the ground that it does not state facts sufficient to constitute a cause of action in that it does not specify any right, claim or interest which the defendant has in or against the estate which would be lost if the facts alleged in the complaint be true.\nProm a judgment sustaining the demurrer, the plaintiff appeals. The record does not show any motion by the plaintiff for permission to amend his complaint further.\nW. C. Morse, Jr., and J. W. Jennette for plaintiff appellant.\nSmall \u25a0& Small for defendant appellee."
  },
  "file_name": "0579-01",
  "first_page_order": 611,
  "last_page_order": 612
}