Smith v. Smith

ShaRp, J.,

dissenting. G.S. 29-30 (b) permits the widow of an intestate who is survived by only one child and no other lineal descendants to take, in lieu of her one-half share of his real estate in fee, G.S. 29-14(1), a life estate in one-third in value of the real estate, including a life estate in the dwelling, regardless of its value, which she occupied at the time of intestate’s death. Such an election is, however, subject to the condition that she make it “within one month after the expiration of the time fixed for the filing of a dissent,” G.S. 29-30 (c) (1), unless “litigation that affects the share of the surviving spouse in the estate is pending.” G.S. 29-30 (c) (4). If such litigation is pending, the election shall be made “within such reasonable time as may be allowed by written order of the clerk of the superior court.” Ibid.

The majority concede that, unless litigation affecting her share in her husband’s estate was pending, petitioner was required “to make her election (to take a life estate) on or before July 22, 1962 or a date shortly thereafter, depending on the date of the first publication of notice to creditors.” She did not attempt to make the election in: ques *32 tion until May 4, 1964. Notwithstanding, the majority would permit her to elect, on the premise that litigation affecting her share in the estate was pending.

Intestate died December 11, 1961. Petitioner was appointed his ad-ministratrix December 22, 1961. On April 28, 1962, intestate’s son, respondent Smith, conveyed to petitioner his one-half interest in the dwelling she was occupying at the time of her husband’s death. Prima facie, she then owned the fee in the whole of this property. Ten days later, however, respondent instituted an action against petitioner to set this deed aside for her fraud in procuring it. On April 4, 1963, the deed was set aside. This, then, is the litigation which the majority say affected the widow’s share in the estate. How can it be said that it affected her share in the husband’s estate when, no matter how the fraud action terminated, she still retained the share she acquired from her intestate husband as his widow, a fee simple in one-half of the dwelling in controversy? If she should lose, the title to the realty remained as it had been transmitted to both beneficiaries by the death of the decedent. If she should win, in addition to the one-half she acquired through her husband, she had the son’s share, from the son. The market value of the property was likewise unaffected; it remained the same, whether it was owned by two persons or by one. In no wise did this litigation affect the share which the widow derived from the husband’s estate; it affected only the share of her stepson, the other beneficiary.

The majority opinion states that “any litigation which may substantially and materially affect the choice the surviving spouse is entitled to make affects the share of the surviving spouse in the estate.” With this statement I would agree — provided the reference is confined to litigation growing out of transactions by the decedent in his lifetime or connected with the proper administration of his estate. Clearly a contested mortgage, a disputed account, or a pending tort action might affect the net value of the husband’s estate and thereby affect the widow’s election and her share in the estate within the meaning of G’.S. 29-30, but not so a fraud action which arose after decedent’s death as the result of the widow’s efforts to acquire the share of another beneficiary of the estate. Suppose, instead of an action between the widow and the son involving the validity of his deed to her, the action had been between the son and his prior grantee in a mortgage deed and had involved the validity of the mortgage. Under the majority’s rule, even that action would have extended the widow’s time to make an election. Thus, the heirs might be left for years in a state of uncertainty as to when they would come into possession of their shares in the realty. Certainly the litigation with her stepson materially affected her finan *33 cial interests and her claim, to the whole property, but it did not affect the share she took, as his surviving spouse, in her deceased husband’s realty, which share was a one-half interest in fee in the property now in dispute. To toll the statute while she attempted to secure the other half by fraud, with no penalty for failure, would put a premium on fraud. It is true that favorabilia in lege sunt jiscus, dos, vita, libertas, but surely the law will not permit even a widow to have her cake and eat it, too, under such circumstances. There is no reason to fear that the interpretation of G.S. 29-30 (c) (4) for which I contend will become “a vehicle of injustice” to any widow who is not a tort-feasor.

It may be conceded, without in the least weakening the thesis of this dissent, that the evidence in respondent’s action to set aside the deed made out a minimal case of fraud. Nevertheless, upon that evidence the jury found that petitioner had fraudulently secured the deed from her alcoholic stepson while acting as the administratrix of his father’s (her husband’s) estate. This Court, in an opinion to which there were no dissents, affirmed the judgment of the Superior Court setting the deed aside. Smith v. Smith, 261 N.C. 278 , 134 S.E. 2d 331 . The humanitarian urge to take care of widows is always strong, and the facts in this case graphically illustrate the possible disadvantages of a tenancy in common. Yet fraud is not an acceptable means of ridding oneself of the annoyance, interference, and unreasonable demands of a co-tenant nor of the risk of partition. Surely it is not for this Court, who did not see or hear the witnesses, to substitute our judgment for that of the jury in a case which we have heretofore affirmed on appeal. To do so would merely add another hard case to the quicksands of the law.

In this case petitioner simply failed to make her election to take a life estate within the time required by law. She was not, in my opinion, protected by G.S. 29-30 (c)(4), which has no application to litigation resulting solely from the acts of one or more of the beneficiaries in dealing with their individual shares after the decedent’s death. I therefore vote to reverse the order from which the appeal is taken.

Bobbitt, J., joins in dissent.