Greene v. Lynch

WELLS, Judge. Plaintiff assigns error to each of the court’s conclusions of law. She argues first that G.S. 30-l(c) does not require approval of a dissent by the Clerk of Superior Court unless there is a dispute as to the value of the property passing to the surviving spouse under and outside the will of the deceased spouse. Plaintiff further argues that even if approval of the dissent was required in this case, both the Superior Court judgment nunc pro tunc and the Clerk’s approval of the annual account constituted sufficient approval under G.S. 30-l(c). We do not agree. “To establish the right to dissent, a spouse must make a timely filing pursuant to G.S. 30-2, and must show an entitlement to that right under G.S. 30-1.” In re Kirkman, 302 N.C. 164, 166, 273 S.E. 2d 712, 714 (1981). “The right, time and manner, and effect of the filing and recording of a dissent to a will are all matters within the probate j urisdiction of the Clerk.” In re Snipes, 45 N.C. App. 79, 81, 262 S.E. 2d 292, 294 (1980). Although Mary Johnston Brown filed a timely notice of dissent with the Clerk pursuant to G.S. 30-2, she never established her entitlement to the right of dissent pursuant to G.S. 30-1. To do so, she was required by G.S. 30-l(c) to obtain the Clerk’s approval of the value of the property passing to her under and outside her husband’s will as of the date of his death. Taylor v. Taylor, 301 N.C. 357, 363, 271 S.E. 2d 506, 510-11 (1980); In re Estate of Connor, 5 N.C. App. 228, 168 S.E. 2d 245 (1969). At the time the $31,500 payment was made to Mary Johnston Brown, no such approval had been received and Mary Johnston Brown’s right of dissent had therefore not been established. The subsequent approval of the annual account by the Clerk did not establish her right of dissent because at the time the account was filed and approved, the dissent had been withdrawn and any further right to dissent had been waived. The judgment nunc pro tunc was also ineffective to estab [669] lish Mary Johnston Brown’s right of dissent even if, as argued by plaintiff, either the Clerk or a judge of Superior Court may determine a widow’s right of dissent under G.S. 30-1, because at the time of entry of the judgment nunc pro tunc there was no action pending in which the court could enter a valid order, the action having been voluntarily dismissed with prejudice prior to entry of that judgment. See, Sutton v. Sutton, 18 N.C. App. 480, 197 S.E. 2d 9 (1973). We have previously held, however, that exclusive original jurisdiction to determine the validity of a dissent by a surviving spouse to a will of a deceased spouse lies with the Clerk of Superior Court. In re Snipes, supra. A judge’s probate jurisdiction is concurrent with the Clerk’s jurisdiction only where the Clerk is disqualified or unable to act; in all other cases a judge’s probate jurisdiction is appellate. In re Estate of Adamee, 291 N.C. 386, 398, 230 S.E. 2d 541, 549 (1976); In re Snipes, supra. The facts of the present case disclose no basis for the exercise of either concurrent or appellate probate jurisdiction by Judge Mills. Without establishing Mary Johnston Brown’s entitlement to the right of dissent in the manner required by G.S. 30-1, the payment to Brown of $31,500 from the estate of her husband did not constitute a transfer by intestacy pursuant to a valid dissent. G.S. 105-2(1) provides for the imposition of inheritance taxes upon transfers “by will or by the intestate laws of this State. ...” The statute makes no provision for assessment of inheritance taxes on the basis of settlement or compromise agreements. As no property was transferred from the estate of Norman Newman Brown by intestacy pursuant to a valid dissent, defendant was required by statute to compute inheritance taxes on the estate of Norman Newman Brown solely in accordance with the terms of his will even though his surviving spouse received a larger share of the estate than provided for her in the will pursuant to her settlement agreement with plaintiff. See, Pulliam v. Thrash, 245 N.C. 636, 97 S.E. 2d 253 (1957); In re McCoy, 39 N.C. App. 52, 249 S.E. 2d 473 (1978), disc. rev. denied, 296 N.C. 585, 254 S.E. 2d 36 (1979). The judgment below is Affirmed. Judges Vaughn and Becton concur.