{ "id": 8569764, "name": "MARIE CANNON PHILLIPS v. HOWARD LEE PHILLIPS, JR., Individually and as Executor of the Estate of Howard Lee Phillips; HOWARD LEE PHILLIPS III; JOHN BRADFORD PHILLIPS; and EDGAR W. TANNER, Clerk of the Superior Court of Rurtherford County", "name_abbreviation": "Phillips v. Phillips", "decision_date": "1979-03-16", "docket_number": "No. 75", "first_page": "590", "last_page": "607", "citations": [ { "type": "official", "cite": "296 N.C. 590" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "238 S.E. 2d 790", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": -1 }, { "cite": "34 N.C. App. 428", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549537 ], "year": 1977, "opinion_index": -1, "case_paths": [ "/nc-app/34/0428-01" ] }, { "cite": "Utah Code Ann. \u00a7\u00a7 75-2-201", "category": "laws:leg_statute", "reporter": "Utah Code Ann.", "opinion_index": 0 }, { "cite": "N.D. Cent. Code Ann. \u00a7 30.1-05", "category": "laws:leg_statute", "reporter": "N.D. Cent. Code Ann.", "year": 1976, "opinion_index": 0 }, { "cite": "37 Ohio St. L.J. 321", "category": "journals:journal", "reporter": "Ohio St. L.J.", "year": 1976, "opinion_index": 0 }, { "cite": "62 Iowa L. Rev. 981", "category": "journals:journal", "reporter": "Iowa L. Rev.", "year": 1977, "opinion_index": 0 }, { "cite": "2 Conn. L. Rev. 513", "category": "journals:journal", "reporter": "Conn. L. Rev.", "year": 1970, "opinion_index": 0 }, { "cite": "39 N.C.L. Rev. 17", "category": "journals:journal", "reporter": "N.C. L. Rev.", "year": 1960, "pin_cites": [ { "page": "30" } ], "opinion_index": 0 }, { "cite": "Treas. Reg. \u00a7 20-2056", "category": "laws:admin_compilation", "reporter": "Treas. Reg.", "pin_cites": [ { "page": "(e)" } ], "opinion_index": 0 }, { "cite": "Treas. Reg. \u00a7\u00a7 20.6075-1", "category": "laws:admin_compilation", "reporter": "Treas. Reg.", "opinion_index": 0 }, { "cite": "168 S.E. 2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "5 N.C. App. 228", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549287 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc-app/5/0228-01" ] }, { "cite": "133 S.E. 2d 135", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "260 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575350 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/260/0506-01" ] }, { "cite": "48 N.C.L. Rev. 361", "category": "journals:journal", "reporter": "N.C. L. Rev.", "weight": 2, "year": 1970, "opinion_index": 0 }, { "cite": "162 S.E. 2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "274 N.C. 256", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559737 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/274/0256-01" ] }, { "cite": "212 S.E. 2d 381", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "387" } ], "opinion_index": 0 }, { "cite": "286 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568958 ], "year": 1975, "pin_cites": [ { "page": "497" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0488-01" ] }, { "cite": "166 S.E. 2d 663", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "670" } ], "opinion_index": 0 }, { "cite": "275 N.C. 250", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558370 ], "year": 1969, "pin_cites": [ { "page": "260" } ], "opinion_index": 0, "case_paths": [ "/nc/275/0250-01" ] }, { "cite": "166 S.E. 2d 686", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1969, "pin_cites": [ { "page": "689" } ], "opinion_index": 0 }, { "cite": "275 N.C. 234", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558343 ], "weight": 3, "year": 1969, "pin_cites": [ { "page": "238" } ], "opinion_index": 0, "case_paths": [ "/nc/275/0234-01" ] }, { "cite": "238 S.E. 2d 790", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1977, "pin_cites": [ { "page": "794" }, { "page": "793" } ], "opinion_index": 0 }, { "cite": "34 N.C. App. 428", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549537 ], "weight": 3, "year": 1977, "pin_cites": [ { "page": "434" }, { "page": "433" } ], "opinion_index": 0, "case_paths": [ "/nc-app/34/0428-01" ] } ], "analysis": { "cardinality": 1257, "char_count": 42035, "ocr_confidence": 0.839, "pagerank": { "raw": 2.897005045128094e-07, "percentile": 0.8447675906973727 }, "sha256": "a27b21ccfa1cd25340e20e9f30e3c17b29f2a9b44fac0bc210fc0795cb275367", "simhash": "1:877261f10c3e6470", "word_count": 7005 }, "last_updated": "2023-07-14T21:17:53.962359+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justices BRITT and BROCK took no part in the consideration or decision of this case." ], "parties": [ "MARIE CANNON PHILLIPS v. HOWARD LEE PHILLIPS, JR., Individually and as Executor of the Estate of Howard Lee Phillips; HOWARD LEE PHILLIPS III; JOHN BRADFORD PHILLIPS; and EDGAR W. TANNER, Clerk of the Superior Court of Rurtherford County" ], "opinions": [ { "text": "SHARP, Chief Justice.\nThe question in this case is whether the facts found by the trial judge and stipulated by the parties are sufficient to establish the right of plaintiff, a childless surviving successive spouse, to dissent from the will of her deceased husband, who is survived by one son of a prior marriage.\nThe right of a surviving spouse to dissent from his or her deceased spouse\u2019s will is conferred by statute \u201cand may be exercised at the time and in the manner fixed by statute.\u201d Vinson v. Chappell, 275 N.C. 234, 166 S.E. 2d 686 (1969). The \u201ctime and manner\u201d is fixed by G.S. 30-2, which permits any spouse entitled to dissent to do so within six months of the date letters testamentary were issued to the decedent\u2019s personal representative. The clerk may extend the time if litigation affecting the share of the surviving spouse is pending at the expiration of the time allowed. In this case the right to dissent is conferred by N. C. Gen. Stats. \u00a7 30-Ka) (1976), the law in effect on 8 April 1975, the date of testator\u2019s death. This secton provided:\n\u201c\u00a7 30-1. Right of dissent. \u2014(a) A spouse may dissent from his deceased spouse\u2019s will in those cases where the aggregate value of the provisions under the will for the benefit of the surviving spouse, when added to the value of the property or interests in property passing in any manner outside the will to the surviving spouse as a result of the death of the testator:\n(1) Is less than the intestate share of such spouse, or\n(2) Is less than one half of the deceased spouse\u2019s net estate in those cases where the deceased spouse is not survived by a child, children, or any lineal descendant of a deceased child or children, or by a parent.\u201d\nEffective 1 October 1975, G.S. 30-l(a) was amended by adding a new subdivision as follows: \u201c(3) Is less than the one half of the amount provided by the Intestate Succession Act in those cases where the surviving spouse is a second or successive spouse and the testator has surviving him lineal descendants by a former marriage and there are no lineal descendants surviving him by the second or successive marriage.\u201d\nThis subsection squarely addresses the factual situation of the instant case. However, since the General Assembly expressly limited its application \u201cto the estates of decedents dying after 1 October 1975,\u201d it has no application here.\nAt this point it is necessary to take note of Section (b) of G.S. 30-3, which will determine the distributive share of plaintiff in the net estate of her deceased husband if her right to dissent is upheld. This section provides: \u201cWhenever the surviving spouse [who dissents to the will of the deceased spouse] is a second or successive spouse, he or she shall take only one half of the amount provided by the Intestate Succession Act for the surviving spouse if the testator has surviving him lineal descendants by a former marriage but there are no lineal descendants surviving him by the second or successive marriage.\u201d\nThus, if it be determined that plaintiff is entitled to dissent, the parties concede the correctness of the trial court\u2019s conclusion that she will be entitled to one fourth of the decedent\u2019s net estate (one-half of her intestate share). See Vinson v. Chappell, 275 N.C. 234, 238, 166 S.E. 2d 686, 689 (1969).\nWe find no merit in defendants\u2019 contention that because G.S. 30-l(a) and G.S. 30-3(b) are in pari materia, plaintiff should have a right to dissent only if the property she receives within and without the will is less than the share she would take under G.S. 30-3(b). As a \u201csuccessive spouse,\u201d plaintiff will receive only one half of an intestate share under G.S. 30-3(b) if her right to dissent is established. Defendants argue therefore that she should be allowed to dissent only if the $70,000 she received outside the will is less than one half of her intestate share. Clearly, under the facts of this case, if that is to be the test, plaintiff will have no right to dissent.\nIt is true that statutes dealing with the same subject matter must be construed together. \u201cWhen, however, the section dealing with a specific matter is clear and understandable on its face, it requires no construction.\u201d Utilities Comm. v. Electric Membership Corp., 275 N.C. 250, 260, 166 S.E. 2d 663, 670 (1969). See 12 Strong\u2019s N. C. Index 3d Statutes \u00a7 5.5 (1978). The term \u201cintestate share,\u201d as used in G.S. 30-l(a)(l) is clear and unambiguous. That the legislature provides one criterion for determining whether the right to dissent exists and another for determining the consequences of the dissent creates no ambiguity.\nThe absence of any ambiguity in G.S. 30-l(a)(l) likewise refutes defendants\u2019 argument that the 1975 amendment which added subsection (3) to G.S. 304(a) manifests the General Assembly\u2019s intent that the term \u201cintestate share\u201d in subsection (1) be defined with reference to the consequences of the dissent. While the purpose of an amendment to an ambiguous statute may be presumed to be \u201cto clarify that which was previously doubtful,\u201d it is logical to infer that an amendment to an unambiguous provision, such as G.S. 304(a), evinces an intent to change the law. Taylor v. Crisp, 286 N.C. 488, 497, 212 S.E. 2d 381, 387 (1975); Childers v. Parker\u2019s, Inc., 274 N.C. 256, 162 S.E. 2d 481 (1968).\nNor does attributing to G.S. 304(a)(1) its plain and definite meaning lead to an absurd result, as defendants contend. Common sense does not compel the assumption the legislature intended that the comparative figure used to determine a spouse\u2019s right to dissent (intestate share) should necessarily equal the distributive share of a dissenting spouse. The language of G.S. 304(c), which establishes a valuation procedure \u201c[f]or the purpose of establishing the right of dissent\u201d and mandates that the value so determined \u201cbe used exclusively for [that] purpose,\u201d indicates that the General Assembly anticipated a variance between this valuation and the ultimate distributive share. Further, under our present law, several situations exist where the right to dissent is determined by use of a figure which is more or less than the amount which would actually be received as a consequence of the spouse\u2019s dissent. See Note, Does North Carolina Law Adequately Protect Surviving Spouses?, 48 N.C.L. Rev. 361 (1970).\nWe hold therefore that the plaintiff\u2019s right to dissent is determined by subsection (1) of G.S. 304(a) without reference to G.S. 30-3(b).\nTo 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.\nG.S. 304(b) provides, among other things, that the value of proceeds of insurance policies on the life of the decedent received by the spouse shall be included in the value of property passing to the surviving spouse as a result of the testator\u2019s death. Subsection (c) requires that the estate of the deceased spouse, and any property passing outside the will to the surviving spouse as a result of the testator\u2019s death, be determined and valued as of the date of death. When the personal representative and the surviving spouse fail to agree, G.S. 30-l(c) directs the clerk to appoint one or more disinterested persons to determine and establish the value of the property. It further provides that such determination and valuation \u201cshall be final for determining the right of dissent and shall be used exclusively for this purpose.\u201d\nHere, nothing passed to plaintiff under the will. Only the proceeds of a life insurance policy on testator\u2019s life, $70,000, came to her outside the will. Thus, in this case, the first figure is $70,000.\nThe second figure to be ascertained is the value of plaintiff\u2019s intestate share in testator\u2019s estate. If this figure is more than $70,000, plaintiff has the right to dissent; otherwise not. Obviously, therefore, the right to dissent cannot be determined without first ascertaining the value of the surviving spouse\u2019s intestate share in the deceased spouse\u2019s estate.\nThe \u201cintestate share\u201d of a surviving spouse is the quantum of real and personal property he or she would receive under the provisions of N. C. Gen. Stat., ch. 29 (1976), known as the Intestate Succession Act. The section of the Act which applies to plaintiff\u2019s situation, G.S. 29-14(1), provides: \u201cIf the intestate is survived by only one child or by any lineal descendant of only one child, [the surviving spouse shall receive] one half of the net estate, including one half of the personal property and a one half undivided interest in the real property.\u201d\n\u201cNet estate\u201d as used in the Intestate Succession Act \u201cmeans the estate of a decedent, exclusive of family allowances, costs of administration, and all lawful claims against the estate.\u201d G.S. 29-2(5).\nSince the intestate share of any surviving spouse, or other heir, is ordinarily a percentage of the decedent\u2019s net estate, the amount of the net estate must be determined within limits which will permit the court to ascertain with substantial accuracy whether the value of the intestate share of the surviving spouse is less or greater than the value of the property passing to her in and outside the will. This determination, however, may not be an easy task. Indeed, in some cases, it may not be possible.\nPrior to the time the personal representative files his final account, it will seldom, if ever, be possible to determine with complete accuracy the value of the testator\u2019s net estate and the intestate share of the surviving spouse. In some instances, the net value of the estate can be ascertained with sufficient accuracy during the six months within which the surviving spouse is permitted to dissent to enable him or her to determine the right. We note, however, that creditors also have six months after the first publication of the executor\u2019s notice to creditors in which to file claims against the estate. G.S. 28A-19-3. Even ascertaining the amount of the debts may prove difficult when the claims are contingent or are being disputed by the executor. See G.S. 28A-19-5, -15, -16 (1976).\nThe most troublesome problem of valuation concerns the federal estate tax. Until this figure is ascertained with a reasonable degree of certainty, the clerk will be unable to determine the value of the decedent\u2019s \u201cnet estate.\u201d Under \u00a7 6075 of the Internal Revenue Code the estate tax return need not be filed until 9 months after the decedent\u2019s death. I.R.C. \u00a7 6075(a). If the Internal Revenue Service grants an extension, the return may be filed as late as 15 months after the date of decedent\u2019s death. I.R.C. \u00a7 6081(a). Further, if the Government chooses to contest the executor\u2019s valuation of the estate, always a realistic possibility when an estate of any size is concerned, a final valuation for tax purposes may be postponed as much as two years after the testator\u2019s death.\nWithout revealing his modus operandi, upon the facts stipulated by the parties, the trial judge concluded \u201cas a matter of law\u201d that plaintiff \u201creceived less than her intestate share from all sources under or outside of her deceased spouse\u2019s will.\u201d Thus the Court of Appeals was confronted with the question which now confronts us: Do the stipulated facts establish that the $70,000 plaintiff received outside the will is less than what she would have received had her husband died intestate?\nThe Court of Appeals, upon the following calculations, reached the same conclusion as did the trial judge: From $302,971.50, the stipulated value of testator\u2019s gross estate, it subtracted $134,305.80. This figure is the sum of the following items: $82,594.35, the mortgage indebtedness on testator\u2019s realty; $39,394.69, the executor\u2019s estimate of the federal estate tax; $1,877.16, interest on the unpaid tax; $10,439.60, penalty for failure to pay the estate tax. \u201cFrom the deduction of these amounts,\u201d the Court of Appeals said, \u201cnet estate can be reasonably ascertained \u2014in the amount of $168,655.70 \u2014for the purpose of computing the plaintiff\u2019s intestate share and establishing her right to dissent. . . . Since the aggregate value of property passing to plaintiff under and outside her deceased spouse\u2019s will \u2014$70,000\u2014is less than her intestate share, plaintiff is entitled to dissent from the will.\u201d Phillips v. Phillips, 34 N.C. App. 428, 434, 238 S.E. 2d 790, 794 (1977). This arithmetic may be correct, but the formula is not.\nTo ascertain \u201cnet estate\u201d under G.S. 29-2(5) it is necessary to subtract from the value of the gross estate, \u201cfamily allowances, costs of administration, and all lawful claims against the estate.\u201d In its computations the Court of Appeals erroneously failed to deduct the $6,834.42 allotted to plaintiff as her year\u2019s allowance; it did not consider the costs of administration; and it erroneously deducted the interest and penalties attributable to the executor\u2019s failure to pay the federal estate tax.\nCertainly the federal estate tax is one of the \u201clawful claims\u201d against testator\u2019s estate, and the widow\u2019s intestate share of the estate is to be computed after its deduction. Tolson v. Young, 260 N.C. 506, 133 S.E. 2d 135 (1963). It is equally certain that the \u201cnet estate\u201d cannot be either determined or fairly estimated without taking into consideration the federal estate tax. Yet the amount of the estate tax which will ultimately be due may vary substantially according to whether a surviving spouse can or cannot dissent. See, e.g., In re Estate of Connor, 5 N.C. App. 228, 168 S.E. 2d 245 (1969). Obviously, therefore, for purposes of determining whether a surviving spouse may dissent, it is an estimation of the federal estate tax which must be deducted in approximating the \u201cnet estate\u201d; so the question becomes how to arrive at an estimate.\nIn the case before us the parties stipulated that the estimated amount of the federal estate tax for the purposes of determining the \u201cnet estate\u201d was $39,394.69. This figure was apparently based on the assumption that the property would pass according to the terms of testator\u2019s will. Having stipulated to that figure, the parties are in no position to question its accuracy on this appeal. We note, however, that the estimate required by G.S. 30-Ka) is not an estimate of the actual tax which will be paid on the estate but rather an estimate of the tax which would be paid if plaintiff received the share of the \u201cnet estate\u201d specified by G.S. 304(a)(1), including any marital deduction the estate wo\u00fald receive as a result of her taking that share.\nThe parties also agreed that at the time of the trial interest on the federal estate tax ($1,877.16) and penalty charges ($10,439.60) due to the delay in filing and payment had accumulated. Because of the stipulation plaintiff cannot object to the value assigned to these charges, but she can and does contend that these charges should not be deducted in the estimation of \u201cnet estate\u201d for purposes of determining whether a surviving spouse can dissent.\nInsofar as these interest and penalty charges are \u201clawful claims against the estate,\u201d they must be deducted before a distributive share can be determined. This does not mean, however, that the executor in a proper case may not be held personally liable for the interest and penalties or that such charges should be considered when determining whether a surviving spouse is entitled to dissent. It commonly occurs, as here, that the interests of the executor, the party responsible for filing the return and paying the tax debt, are antagonistic to those of the surviving spouse who is attempting to dissent. The legislature could not have intended to confer upon executors the power to extinguish any potential right to dissent merely by delaying the filing of an estate tax return, or payment of the principal of the debt, until interest and penalty charges sufficiently erode the \u201cnet estate.\u201d The date for filing a return, absent an extension, and the date upon which payment of the tax is due are the same (nine months from the date of death), and no interest or penalties accrue prior to that time. See I.R.C. \u00a7 6651; Treas. Reg. \u00a7\u00a7 20.6075-1, 20.6081-1, 20.6151. While in actuality some delays in administration may be unavoidable, it appears reasonable to assume for the purpose of estimating the value of the net estate that an executor will comply with the time limits embodied in the federal estate tax provisions. Accordingly, we hold that interest and penalties on the federal estate tax should not be considered when computing the \u201cnet estate\u201d for the purpose of determining whether a surviving spouse can dissent.\nOn the basis of the stipulated facts, we now attempt to estimate testator\u2019s net estate. From $302,971.50, the value of testator\u2019s gross estate, we deduct $128,823.36, the sum of the following items: The widow\u2019s year\u2019s allowance, $6,834.42; lawful claims against the estate, $82,594.35 (mortgage debt); estimated federal estate tax exclusive of interest and penalties, $39,394.59. The difference is $174,148.14. The difference between one half of this figure and $70,000 is $17,074.07.\nDespite the fact that the parties agreed that this case was to be determined as a matter of law upon the stipulated facts, they failed to include an estimate of the costs of administration, an item which G.S. 29-2(5) specifically provides shall be taken into account in determining \u201cnet estate.\u201d Costs of administration include the executor\u2019s commissions and \u201creasonable sums for necessary charges and disbursements incurred in the management of the estate.\u201d G.S. 28A-23-3. Reasonable attorneys\u2019 fees come within the latter item. See M. Edwards, North Carolina Probate Handbook \u00a7\u00a7 33.1-.5 (2d ed. 1975), 2 N. Wiggins, Wills and Administration of Estates in North Carolina \u00a7\u00a7 249-50 (1964) and cases cited therein.\nFor this Court to determine plaintiff\u2019s right to dissent on the facts stipulated, we would have to conclude as a matter of law that reasonable commissions and attorneys\u2019 fees could not exceed $17,074.07. This we cannot do.\nThe amount of the executor\u2019s commissions, though limited to 5% of the receipts and disbursements and subject to review by the superior court judge on appeal, is addressed to the discretion of the clerk in the first instance. Attorneys\u2019 fees are also subject to the court\u2019s approval. Neither attorneys\u2019 fees nor commissions can be finally determined until the settlement of the estate. G.S. 28A-23-3(c), (d).\nAs a judge of probate, the clerk has supervised the administration of the estate from the beginning and presumably will have some idea of the value of the service which the executor and his attorney have rendered the estate. Upon a record silent on these matters, the appellate court cannot assume the time expended, responsibility and trouble involved, and the skill required to settle the estate.\nSince the cost of administration must be estimated before the net value of the estate can be approximated, this case must be remanded to the Superior Court for a determination of that figure. The cost of administration should include reasonable attorneys\u2019 fees incurred in the course of administering the estate. However, for the limited purpose of determining plaintiff\u2019s right to dissent, that figure should not include any fees generated during litigation over the determination of that right. Because it is apparent that the federal estate tax in this case was estimated on the basis of a mistaken assumption of law, that figure should also be recomputed in accordance with the rule enunciated in this opinion.\nBecause the clerk was apparently unable to cope with either the legal or factual complexities raised by plaintiff\u2019s dissent, the question of her right came before the superior court judge in an action for declaratory judgment. Therefore, on remand, the determination of the value of the \u201cnet estate,\u201d and consequently of plaintiff\u2019s right to dissent, must be made by the superior court judge on the basis of facts found by him or stipulated by the parties.\nBecause the parties erroneously assumed that all facts necessary to determine testator\u2019s net estate were stipulated in the trial court\u2019s judgment, this appeal does not present directly the question of when the right to dissent should be determined. Nevertheless, the Court of Appeals chose to address that issue. Phillips v. Phillips, 34 N.C. App. 428, 238 S.E. 2d 790 (1977). That Court concluded that a surviving spouse\u2019s right to dissent should not be \u201cfinally established until \u2018net estate\u2019 is ascertained.\u201d 34 N.C. App. at 433, 238 S.E. 2d at 793. Although this statement is not free from ambiguity, it seems to imply that the right to dissent is not to be finally established until the actual value of the net estate can be ascertained, i.e., at the time of distribution.\nThis proposed solution to the problems of valuation posed by the statute must be rejected. First, the legislature obviously intended for the right to be determined as quickly as possible after the dissent is filed. To this end G.S. 30-l(c) establishes a simple and conclusive procedure for valuing the property passing to the dissenting spouse within and without the will. Second, and most decisive, the Court of Appeals\u2019 approach fails to take into account the effect of a spouse\u2019s right to dissent on the amount of federal estate taxes. A spouse\u2019s elective share will normally qualify for the marital deduction under \u00a7 2056 of the Internal Revenue Code. See Treas. Reg. \u00a7 20-2056(e)-2(c) (1958); 4 J. Mertens, The Law of Federal Gift and Estate Taxation \u00a7 29.14 (1959 and Supp. 1972); 1 J. Rasch, Harris-Handling Federal Estate & Gift Taxes \u00a7 251 (3d Ed. 1978). Because of the size of the elective share provided by G.S. 30-3, it will typically constitute the single largest deduction from the testator\u2019s gross estate. Under the rule proposed by the Court of Appeals, the executor would usually be forced to file the federal estate tax return before he knew whether the estate qualified for the marital deduction. His only alternative would be to delay the filing of the return and risk the accumulation of interest and penalties, or to go through the cumbersome process of seeking a refund.\nIn our view, the only practical solution to the problems involved is for the clerk (in this case the judge) to determine the widow\u2019s right to dissent whenever, in his judgment, the value of the \u201cnet estate\u201d can be estimated with reasonable accuracy. This approach is apparently consistent with the present practice of the probate bar. See M. Edwards, North Carolina Probate Handbook \u00a7 28-10 (2d Ed. 1975). Of course, where the testator\u2019s personal representative and the dissenting spouse, dealing at arm\u2019s length, are able to agree upon the value of the \u201cnet estate,\u201d the clerk or the court will ordinarily abide by this agreement in determining the right to dissent. This approach parallels the procedure set out in G.S. 30-l(c) for establishing the value of property passing to the widow within and without the will.\nWe recognize that no judicially imposed solution can adequately redress the problems of valuation raised by our dissent statutes. While the use of an estimated \u201cnet estate\u201d may work well where the right to dissent is clear-cut, it will inevitably cause problems in cases such as this one where that right is closely contested. Furthermore, it is apparent that the statutory scheme, which was intended to provide a relatively simple procedure for determining the right to dissent, will in many cases prove to be complex, time-consuming, and expensive. An unintended effect of these drawbacks may be to discourage a deserving spouse from exercising the right to dissent.\nMost of the problems of valuation and interpretation concern G.S. 30-1, the statute outlining the surviving spouse\u2019s right to dissent. Once the right is established it is relatively easy to compute the amount of the surviving spouse\u2019s distributive share. With the exception of the community property states, the vast majority of American jurisdictions give a surviving spouse an unqualified right to dissent from a deceased spouse\u2019s will. See Prentice-Hall, 2 Wills, Estates and Trusts \u00b6 2735 (1975) for a list of states with elective shares. North Carolina is one of the few jurisdictions which grant only a qualified right. Bolich, Election, Dissent, and Renunciation, 39 N.C.L. Rev. 17, 30 (1960).\nUnder G.S. 30-l(a)(l) a surviving spouse has a right to dissent only when the total value of property received under and outside the will is less than what he or she would have received had the deceased spouse died intestate. As to property passing under the will, there is no need to qualify the right to dissent since a widow must renounce all rights under the will of the deceased in order to take an elective share. When the will adequately provides for a surviving spouse, economic self-interest will prevent a dissent.\nThe apparent purpose of G.S. 30-1 is to deny a surviving spouse a share of the testator\u2019s \u201cnet estate\u201d when he or she has been adequately provided for by property passing outside the probate estate. Unlike property passing under the will, non-probate assets need not be renounced in order to take a dissenting share. As at least one commentator has pointed out, however, the statute may fall far short of accomplishing that goal. For example, when a spouse receives a nontestamentary gift which is only slightly less than her intestate share, he or she will be entitled to keep both the non-probate assets and the elective share provided by G.S. 30-3. This may result in a \u201cwindfall\u201d to the surviving spouse at the expense of beneficiaries under the will. See 48 N.C.L. Rev. at 365. The statute also fails to foreclose the possibility of intentional disinheritance. A surviving spouse\u2019s elective share under G.S. 30-3 is based on a percentage of the decedent\u2019s \u201cnet estate.\u201d Because the net estate includes only probate assets, there is nothing in the statute to prevent a testator from disinheriting his spouse by leaving his property to others through the use of will substitutes. See, e.g., Landon, Elective Share Rights \u2014 What\u2019s Left for the Spouse Who Wants to Avoid Them? 113 Tr. & Est. 82 (1974).\nAdditional equitable considerations may arise when the dissent is filed by a successive spouse. Because plaintiff here is a \u201csecond or successive spouse,\u201d she will receive only one half of an intestate share (one fourth of the net estate) under G.S. 30-3(b) if it is determined on remand that she has a right to dissent. Apparently this statute was passed to protect a testator\u2019s children by a former marriage against a \u201cfortune-hunting\u201d second or successive spouse. However, as former Chief Justice Bobbitt observed in Vinson v. Chappell, 275 N.C. 234, 166 S.E. 2d 686 (1969), G.S. 30-3(b) contains \u201cseeds of inequity.\u201d In particular he pointed to the following problems:\n\u201c1. If the \u2018second or successive spouse\u2019 is the decedent, and is not survived by a child or lineal descendant of a former marriage, if any, the surviving husband (wife), if he (she) elects to dissent will receive the full intestate share of a surviving spouse. . . . It would seem that, in a factual situation in which one spouse would be reduced to one-half of the share to which he or she would be entitled if the other died intestate, the rule as to one-half should be applied equally to both parties to the marriage.\n\u201c2. The inferior rights of the surviving \u2018second or successive spouse\u2019 do not depend upon whether a child was born of her (his) marriage with the decedent; rather, they depend upon whether such child (or lineal descendant) survives the decedent.\n\u201c3. G.S. 30-3(b) is applicable when the decedent is survived by a child or lineal descendant of a former marriage even if the decedent\u2019s will leaves nothing to such child or lineal descendant.\n\u201cWhether G.S. 30-3(b) applies does not depend at all upon such considerations as: (1) The comparative durations of the first and second marriage; (2) whether the former marriage was terminated by death or by divorce; (3) the age(s) of the child or children of the former marriage at the time of the second or successive marriage; and (4) the age(s) of the child or children of the former marriage and their financial status at the time of the death of the decedent.\u201d 275 N.C. at 238-39, 166 S.E. 2d at 690.\nSolutions to the problems created by our present dissent statutes must, of course, await legislative action. In the meantime, bench and bar, executors and surviving spouses must cope with the existing statutes as best they can.\nThe decision of the Court of Appeals is reversed. The case is remanded to that court with directions that it be returned to the Superior Court of Rutherford County for further proceedings in accordance with this opinion.\nReversed.\nJustices BRITT and BROCK took no part in the consideration or decision of this case.\n. See Note, Does North Carolina Law Adequately Protect Surviving Spouses? 48 N.C.L. Rev. 361 (1970).\n. The Uniform Probate Code proposes one possible solution to both of these problems. See, generally, 8 Uniform Laws Annotated \u2014 Estate Probate and Related Laws (Master Ed. 1972); Clark, The Recapture of Testamentary Substitutes to Preserve the Spouse's Elective Share: An Appraisal of Recent Statutory Reforms, 2 Conn. L. Rev. 513 (1970); Kurtz, The Augmented Estate Concept under the Uniform Probate Code: In Search of an Equitable Elective Share, 62 Iowa L. Rev. 981 (1977); Robertson, How the Family Fares: A Comparison of the Uniform Probate Code and the Ohio Probate Reform Act, 37 Ohio St. L.J. 321 (1976).\nRecognizing that the probate process is no longer the exclusive or even the major means of transmitting wealth, Section 2-202 of the Codo defines the \u201caugmented estate\u201d against which the right of election is measured to include not only probate assets but also certain testamentary substitutes, which if excluded could be used to defeat the spouse\u2019s legitimate claims. Under Section 2-201 a surviving spouse may elect to take a lh share in the decedent\u2019s \u201caugmented estate,\u201d which is defined to include probate property, gratuitous lifetime transfers to persons other than the surviving spouse, and the property of the spouse derived from the decedent. The Code also addresses the problem of \u201cdouble compensation,\u201d which may occur under G.S. 30-1, by crediting against the spouse\u2019s elective share any property he or she may receive within or without the will. Uniform Probate Code, Section 2-207. Thus, if the spouse has already received property in excess of one third of the augmented estate, she receives no additional share by exercising her right to dissent. A number of states have adopted elective share statutes based on the UPC. See, e.g., N.D. Cent. Code Ann. \u00a7 30.1-05 (1976); Utah Code Ann. \u00a7\u00a7 75-2-201 to -207 (1978).\nIn the vast majority of states the disinherited spouse is simply given an unqualified right to a specified share of the decedent\u2019s probate assets. From as early as 1784 to 1 July 1960, North Carolina gave such a right to the widow. Laws of 1784, ch. 22, \u00a7 8; 1959 N. C. Sess. Laws, ch. 880. Although this approach fails to take non-probate assets into account, it offers, inter alia, the compensations of certainty, ease of administration, the avoidance of expensive and time-consuming litigation such as this, and \u2014in all probability \u2014 results in no more inequities than does the present statutory scheme.", "type": "majority", "author": "SHARP, Chief Justice." } ], "attorneys": [ "Roberts and Planer by Joseph B. Roberts III for plaintiff ap-pellee.", "Robert W. Wolf and George R. Morrow for defendant appellants." ], "corrections": "", "head_matter": "MARIE CANNON PHILLIPS v. HOWARD LEE PHILLIPS, JR., Individually and as Executor of the Estate of Howard Lee Phillips; HOWARD LEE PHILLIPS III; JOHN BRADFORD PHILLIPS; and EDGAR W. TANNER, Clerk of the Superior Court of Rurtherford County\nNo. 75\n(Filed 16 March 1979)\n1. Wills \u00a7 61 \u2014 right of successive spouse to dissent \u2014 intestate share \u2014no consideration of reduced distributive share\nThe right of a \u201csecond or successive spouse\u201d to dissent from her deceased spouse\u2019s will was determined by the amount of her \u201cintestate share\u201d pursuant to G.S. 30-l(a) without reference to her ultimate distributive share under G.S. 30-3(b).\n2. Wills \u00a7 61\u2014 right to dissent \u2014 meaning of \u201cintestate share\u201d\nThe \u201cintestate share\u201d of a surviving spouse is the quantum of real and personal property he or she would receive under the provisions of the Intestate Succession Act, G.S. Ch. 29.\n3. Wills \u00a7 61\u2014 right to dissent \u2014 determination of net estate\nSince the intestate share of a surviving spouse is ordinarily a percentage of the decedent\u2019s net estate, in establishing whether the surviving spouse may dissent from decedent\u2019s will, the amount of the net estate must be determined within limits which will permit the court to ascertain with substantial accuracy whether the value of the intestate share of the surviving spouse is less or greater than the value of the property passing to her inside and outside the will.\n4. Wills \u00a7 61\u2014 right to dissent \u2014 determination of net estate\u2014 deduction of widow\u2019s year\u2019s allowance\nThe amount allotted to plaintiff as her widow\u2019s year\u2019s allowance should have been subtracted from decedent\u2019s gross estate to ascertain net estate for the purpose of determining whether plaintiff could dissent from decedent\u2019s will.\n5. Wills \u00a7 61\u2014 right to dissent \u2014 determination of net estate \u2014 deduction of estimated federal estate tax\nFor the purpose of determining whether a surviving spouse may dissent, an estimation of the federal estate tax must be deducted in approximating the \u201cnet estate.\u201d This estimate is not an estimate of the actual tax which will be paid on the estate but rather an estimate of the tax which would be paid if the surviving spouse received the share of the \u201cnet estate\u201d specified by G.S. 304(a)(1), including any marital deduction the estate would receive as a result of her taking that share.\n6. Wills \u00a7 61\u2014 right to dissent \u2014 determination of net estate \u2014 interest and penalties on federal estate tax\nInterest and penalties on the federal estate tax may not be considered when computing the \u201cnet estate\u201d for the purpose of determining whether a surviving spouse can dissent.\n7. Wills \u00a7 61\u2014 right to dissent \u2014 determination of net estate \u2014 deduction of estimated costs of administration\nIn determining the right of a surviving spouse to dissent from the deceased spouse\u2019s will, an estimation of the costs of administration of the estate, including the executor\u2019s commissions and reasonable attorneys\u2019 fees incurred in the administration of the estate, must be deducted in approximating the value of the \u201cnet estate.\u201d However, for the limited purpose of determining the surviving spouse\u2019s right to dissent, the deduction for attorneys\u2019 fees should not include any fees generated during litigation over the determination of that right.\n8. Wills \u00a7 61\u2014 right to dissent \u2014 when determined\nThe determination of a surviving spouse's right to dissent should not be postponed until the actual value of the net estate can be ascertained, i.e., at the time of distribution. Rather, the clerk (or judge) should determine the right to dissent whenever, in his judgment, the value of the \u201cnet estate\" can be estimated with reasonable accuracy.\nJustices Britt and Brock took no part in the consideration or decision of this case.\nOn defendants\u2019 petition for discretionary review of the decision of the Court of Appeals, reported in 34 N.C. App. 428, 238 S.E. 2d 790 (1977), affirming the judgment for plaintiff entered by Griffin, J., at the 29 October 1976 Session of RUTHERFORD Superior Court, docketed and argued as case No. 48 at the Spring Term 1978.\nAction for a declaratory judgment under G.S. 1-253 (1966) upon stipulated facts.\nPlaintiff, \u201ca second or successive spouse,\u201d is the widow of Howard Lee Phillips (testator), who died testate on 8 April 1975. No children were born to their marriage. Testator, however, was survived by one son, defendant Howard Lee Phillips, Jr., the child of a prior marriage. To him and his two children, defendants Howard Lee Phillips III and John Bradford Phillips, testator bequeathed and devised his entire estate, share and share alike. The will, which was executed on 6 June 1974, prior to testator\u2019s marriage to plaintiff on 22 December 1974, made no provision for her. As the beneficiary in a policy of life insurance, plaintiff received $70,000; and this was all the property she received \u201cin any manner outside the will\u201d in consequence of testator\u2019s death.\nThe will was duly probated, and letters testamentary were issued to Howard Lee Phillips, Jr., on 16 April 1975. In the \u201c90-Day Inventory,\u201d filed on 8 July 1975, the executor valued testator\u2019s total estate at $326,936: personalty, $64,519; realty, $262,417. For the valuation of the realty the executor relied upon an itemized appraisal made for him on 30 May 1975 by a building contractor and realtor of Rutherford County.\nOn 2 September 1975, pursuant to N. C. Gen. Stats., Ch. 30, Art. 4 (G.S. 30-15 through 30-33) (1966), plaintiff filed an application for a year\u2019s allowance. She claimed $6,834.42 and the executor paid her this amount.\nOn 11 September 1975, acting under N. C. Gen. Stats., Ch. 30, Art. 1 (G.S. 30-1 through 30-3) (1966), plaintiff filed a dissent to testator\u2019s will, in which she alleged the total value of his estate to be at least $652,594. Relying upon an appraisal made for her on 30 July 1975 by a realtor-appraiser and licensed broker of Gastonia, North Carolina, plaintiff averred the value of testator\u2019s realty to be $588,075. She and the executor being in disagreement, pursuant to G.S. 30-l(c), plaintiff prayed the court to appoint one or more disinterested persons to determine and establish the value of testator\u2019s estate at the time of his death. In consequence, on 20 October 1975, the clerk appointed Charles D. Owens, whom he found to be \u201ca licensed and competent real estate broker, familiar with the value of land in Rutherford County,\u201d to appraise the property of the estate. On 20 October 1975 Owens filed with the court an itemized appraisal, in which he determined the fair market value of testator\u2019s realty on 8 April 1975 to have been $238,452.\nThereafter, on \u201cthe ._day of November 1975,\u201d plaintiff tendered to the Clerk an order which contained findings and conclusions summarized as follows: On the day of testator\u2019s death the total value of his estate was $302,971.50: realty, $238,452.50; personalty, $64,519. Under G.S. 30-3(b), plaintiff\u2019s \u201cintestate share\u201d of the estate is $75,742.87 (one fourth). Plaintiff, having received nothing in the will and only $70,000 outside the will, is entitled to dissent from it and to receive one fourth of the net estate, \u201cincluding one-fourth of the personal property and one-fourth undivided interest in the real property.\u201d The clerk never signed this order. After 30 October 1975 he made no orders.\nIn order to determine her right to dissent, on 11 March 1976, plaintiff brought this action for a declaratory judgment. She prayed the court to declare her right (1) to dissent from her husband\u2019s will under G.S. 30-1, and (2) to receive, as a surviving successive spouse, one fourth of his net estate, \u201cincluding one-fourth (V4) undivided interest in the real property and rental from her interest in said real property from April 8, 1975.\u201d\nWhen this case, having been regularly scheduled for trial, was called on 14 September 1976 all parties were present in court with their respective counsel of record. At that time counsel for the plaintiff and defendants \u201cstipulated and agreed as to the findings of fact and all parties acknowledged that this was a matter of law for the court, and that both parties waived any right they might have to a jury trial in this cause.\u201d The \u201cfindings of fact\u201d in addition to those heretofore stated are set out in the judgment of the trial judge and summarized as follows (enumeration ours):\n1. At the time of testator\u2019s death his realty was encumbered by deeds of trust totaling $82,594.35. Since his death the estate has accumulated rents, money from the sale of cattle, profits from the operation of a supermarket, and the payments upon deeds of trust.\n2. Defendant executor, \u201cbeing of the opinion that the question of the right of the widow to dissent . . . had first to be determined,\u201d has neither filed nor paid any federal or state inheritance taxes. He has now estimated the federal estate tax to be $39,394.69 plus accumulated interest and penalties in the amount of $12,316.76. The State inheritance tax has been estimated at $7,384.18, with accumulated interest and penalties totaling $582.72.\n3. For the purpose of determining plaintiff\u2019s right to dissent under the provisions of G.S. 30-1, the parties concede that the value of testator\u2019s personalty was $64,519 as shown in the 90-Day Inventory, and that the clerk had accepted Mr. Owens\u2019 valuation of the realty at $238,452.50, making the total value of the estate $302,971.50 at the time of testator\u2019s death.\n4. \u201cThe aggregate value in property passing in any manner under or outside the will to the plaintiff as the surviving spouse is Seventy Thousand ($70,000.00) Dollars, received from an insurance policy and widow\u2019s year\u2019s allowance in the sum of $6,834.42.\u201d\nUpon the facts stipulated Judge Griffin concluded as a matter of law:\n1. Plaintiff having \u201creceived less than her intestate share from all sources under or outside of her deceased spouse\u2019s will\u201d is entitled to dissent under G.S. 30-l(a)(l).\n2. Since plaintiff is a surviving successive spouse and testator is survived by one child of a former marriage and no lineal descendants from his marriage to plaintiff, she is entitled to one fourth of testator\u2019s estate as defined by G.S. 29-2(5).\n3. The widow\u2019s year\u2019s allowance is not to be charged against her share in this estate.\nFrom this judgment defendant appealed to the Court of Appeals, which affirmed the judgment. Upon defendants\u2019 petition we allowed discretionary review.\nRoberts and Planer by Joseph B. Roberts III for plaintiff ap-pellee.\nRobert W. Wolf and George R. Morrow for defendant appellants." }, "file_name": "0590-01", "first_page_order": 614, "last_page_order": 631 }