Matter of Estate of Francis

394 S.E.2d 150, 327 N.C. 101, 1990 N.C. LEXIS 580
CourtSupreme Court of North Carolina
DecidedJuly 26, 1990
Docket342PA89
StatusPublished
Cited by7 cases

This text of 394 S.E.2d 150 (Matter of Estate of Francis) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Matter of Estate of Francis, 394 S.E.2d 150, 327 N.C. 101, 1990 N.C. LEXIS 580 (N.C. 1990).

Opinions

FRYE, Justice.

The issues in this case are (1) whether a deceased spouse’s joint bank accounts with right of survivorship with a non-spouse, established pursuant to N.C.G.S. § 41-2.1(a), should be included in the computation of the decedent’s net estate for determining a surviving spouse’s right to dissent from the deceased spouse’s will; and (2) whether property owned as tenants by the entirety should be included in the decedent’s net estate and in the computation of the value of property passing outside the will to the surviving spouse as a result of the death of the testator-spouse. A proper resolution of these issues determines the ultimate issue of the right of the surviving husband to dissent from his deceased wife’s will.

The Clerk of Superior Court, Surry County, adjudged that the surviving spouse was entitled to dissent and by virtue of the dissent was entitled to one-half the decedent’s net estate which, [103]*103according to the clerk, included: 1) joint bank accounts with right of survivorship to decedent’s sister; 2) decedent’s personal property; and 3) real property owned by the decedent and her husband as tenants by the entirety. The trial court adopted the clerk’s findings of fact, made conclusions of law, and affirmed the clerk’s order.

On appeal, the Court of Appeals, in its initial opinion, concluded that for public policy reasons the joint bank accounts with right of survivorship with decedent’s sister were correctly included in computing decedent’s net estate. The court also concluded that, for purposes of the dissent statute, the value of real property owned by the entireties should not be included in the decedent’s net estate or in the value of property passing outside the will as a result of the death of the testatrix. Decedent’s sister’s petition for discretionary review was allowed by this Court on 7 December 1989.

The Court of Appeals revised its opinion after the petition was allowed in this Court but prior to the case being published in the bound volume of the reporter. As corrected, the published opinion held that the value of real property owned by the entireties is included in the computation of property passing outside the will pursuant to N.C.G.S. § 30-l(b)(4). The Court of Appeals did not alter its conclusion that the unwithdrawn funds in the joint bank accounts with right of survivorship were properly included in the computation of the value of the net estate. Nor did the court alter its initial conclusion that property owned by the entireties should not be included in the net estate for purposes of the dissent statute. The Court of Appeals remanded the case to the superior court for disposition in accordance with the opinion.

We conclude that the surviving spouse was not entitled to dissent from his deceased spouse’s will and that neither the joint bank accounts with right of survivorship, nor the real property owned by the entireties, are to be included in the decedent’s net estate for purposes of determining the right to dissent. We further conclude that the Court of Appeals correctly held, in its published opinion, that property owned by the entireties should be included in the computation of property passing outside the will to the surviving spouse as a result of the death of the testator-spouse.

Vida P. Francis died testate on 13 September 1987, survived by her spouse, C.A. Francis, leaving no children or other lineal [104]*104descendants or parents. The will was probated in common form, and letters testamentary were issued to decedent’s sister, appellant Iva P. Marshall, on 2 October 1987. The will directed that all the funds in her savings accounts with three Mt. Airy banking institutions be divided equally among certain named relatives, including her sister, Iva P. Marshall. The remainder of the estate was left to decedent’s husband, C.A. Francis.

Ms. Marshall, as executrix, filed the 90-day inventory on 6 January 1988 listing the following property: one-half the value of four joint bank accounts —$46,274.48; cash on hand at death — $45.38; household and kitchen furnishings — $1,023.50; medicare check — $5.20; refund of Blue Cross/Blue Shield of North Carolina premium — $29.10; and one-half the value of real property held as tenants by entirety — $14,399.

On 20 January 1988, C.A. Francis, surviving spouse, filed a petition dissenting from the will and claiming “the properties to which he is entitled under Chapter 30 of the General Statutes of North Carolina.”

On 18 July 1988, the clerk of superior court made findings of fact and conclusions of law and adjudged that Mr. Francis had a right under the law of North Carolina to dissent from the will. Ms. Marshall excepted to the following findings of fact made by the clerk of superior court:

3. The value of the decedent’s net estate is at least $123,281.64 less family allowances, costs of administration and all lawful claims against the estate, and the 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;
4. The value of the properties passing to the surviving spouse outside the Will and the provisions for his benefit under the Will amount to less than one-half of the deceased spouse’s net estate;
6. The value of the assets are as follows:
(a) Joint bank accounts with the right of survivorship payable to Iva P. Marshall $92,548.96
[105]*105(b)Cash on hand at death 45.38
(c)Medicare check 5.20
(d)Blue Cross Blue Shield of North Carolina refund of premium 29.10
(e)Personal property of Vida P. Francis located in the house as appraised by Dick Lawson 2,055.00
(f)Value of real property owned as tenants by the entirety 28,798.00

The clerk also adjudged that Mr. Francis was entitled to an additional monetary award equal to one-half the net estate of his deceased spouse, to be calculated upon the filing of the Final Report in the estate. From the clerk’s order, Ms. Marshall, individually, and as exec'utrix, appealed to the superior court.

On 2 November 1988, the superior court affirmed the clerk’s order, and Ms. Marshall appealed to the Court of Appeals. The Court of Appeals agreed with the conclusion that Mr. Francis was entitled to dissent from the will but remanded the case for the clerk to recompute the value of the property. Under the Court of Appeals’ opinion, upon remand, the clerk would: 1) exclude the entireties property from the value of the net estate; 2) include the entireties property in the value of the property passing to Mr. Francis outside the will; and 3) include the value of the joint bank accounts with right of survivorship in the net estate. For the reasons indicated herein, we hold that Mr. Francis is not entitled to dissent from his deceased spouse’s will. We agree with the Court of Appeals’ conclusions one and two, but disagree as to number three.

The legislature has created a two-step process to be used when a surviving spouse attempts to dissent from his deceased spouse’s will. See N.C.G.S. §§ 30-1 and 30-3 (1984); see also Phillips v. Phillips, 296 N.C. 590, 252 S.E.2d 761 (1979).

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Matter of Estate of Francis
394 S.E.2d 150 (Supreme Court of North Carolina, 1990)

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Bluebook (online)
394 S.E.2d 150, 327 N.C. 101, 1990 N.C. LEXIS 580, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-estate-of-francis-nc-1990.