In re the Estate of Burleson

Court of Appeals of North Carolina

In re the Estate of Burleson

210 S.E.2d 114, 24 N.C. App. 136, 1974 N.C. App. LEXIS 1954

CourtCourt of Appeals of North Carolina

DecidedDecember 4, 1974

DocketNo. 7424SC841

StatusPublished

Cited by2 cases

This text of 210 S.E.2d 114 (In re the Estate of Burleson) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Estate of Burleson, 210 S.E.2d 114, 24 N.C. App. 136, 1974 N.C. App. LEXIS 1954 (N.C. Ct. App. 1974).

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Opinion

BROCK, Chief Judge.

G.S. 30-2 (b), governing the time and manner of dissent, provides that “[t]he dissent shall be in writing signed and [138]*138acknowledged by the surviving spouse or his or her duly authorized attorney; . . An acknowledgement is a formal declaration or admission before an authorized public officer by a person who has executed an instrument that the instrument is his voluntary act and deed. 1 C.J.S. Acknowledgments § 1; Freeman v. Morrison, 214 N.C. 240, 199 S.E. 12 (1938). It is different “from an attestation in that an attestation is the act of a third person who witnessed the actual execution of an instrument and subscribed his name as a witness to that fact, ...” 1 C.J.S. Acknowledgments § 1.

Petitioner contends that by having her dissent signed by a subscribing witness, she substantially complied with G.S. 30-2 (b). Petitioner urges this Court to note that her attorney advised her that attestation by a subscribing witness would be sufficient. She asserts that her failure to file a formally acknowledged dissent should not result in her being denied the right to dissent.

In 1959 the legislature, in an effort to avoid disputes concerning the genuineness of dissents, amended the statute to provide that dissents must be acknowledged. 1959 N. C. Session Laws, ch. 880. To hold that the signature by a subscribing witness satisfies the acknowledgment required by G.S. 30-2 (b) would constitute judicial repeal of the 1959 amendment.

Petitioner relies on the case of Philbrick v. Young, 255 N.C. 737, 122 S.E. 2d 725. That case was decided under 1943 statutory law and is not supportive of petitioner’s position.

Although we sympathize with petitioner, we are compelled to hold that her dissent was invalid within the requirements of G.S. 30-2 (b). The statute is an expression of legislative policy which we will not vitiate.

Affirmed.

Judges Campbell and Hedrick concur.

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BROCK, Chief Judge.

G.S. 30-2 (b), governing the time and manner of dissent, provides that “[t]he dissent shall be in writing signed and [138]*138acknowledged by the surviving spouse or his or her duly authorized attorney; . . An acknowledgement is a formal declaration or admission before an authorized public officer by a person who has executed an instrument that the instrument is his voluntary act and deed. 1 C.J.S. Acknowledgments § 1; Freeman v. Morrison, 214 N.C. 240, 199 S.E. 12 (1938). It is different “from an attestation in that an attestation is the act of a third person who witnessed the actual execution of an instrument and subscribed his name as a witness to that fact, ...” 1 C.J.S. Acknowledgments § 1.

Petitioner contends that by having her dissent signed by a subscribing witness, she substantially complied with G.S. 30-2 (b). Petitioner urges this Court to note that her attorney advised her that attestation by a subscribing witness would be sufficient. She asserts that her failure to file a formally acknowledged dissent should not result in her being denied the right to dissent.

In 1959 the legislature, in an effort to avoid disputes concerning the genuineness of dissents, amended the statute to provide that dissents must be acknowledged. 1959 N. C. Session Laws, ch. 880. To hold that the signature by a subscribing witness satisfies the acknowledgment required by G.S. 30-2 (b) would constitute judicial repeal of the 1959 amendment.

Petitioner relies on the case of Philbrick v. Young, 255 N.C. 737, 122 S.E. 2d 725. That case was decided under 1943 statutory law and is not supportive of petitioner’s position.

Although we sympathize with petitioner, we are compelled to hold that her dissent was invalid within the requirements of G.S. 30-2 (b). The statute is an expression of legislative policy which we will not vitiate.

Affirmed.

Judges Campbell and Hedrick concur.

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210 S.E.2d 114, 24 N.C. App. 136, 1974 N.C. App. LEXIS 1954, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-burleson-ncctapp-1974.

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