Adams v. Adams , 261 N.C. 342 ( 1964 )

134 S.E.2d 633 (1964) 261 N.C. 342

Lila A. ADAMS, Individually and as Executrix of the Will of Thomas E. Adams
v.
Walter T. ADAMS, Individually and as Trustee under the Will of Thomas E. Adams, Beulah Adams Starmont, Monnie Adams, Jr., Marion Elizabeth Adams Morrisette, and Hazel Grant Adams.

No. 21.

Supreme Court of North Carolina.

February 26, 1964.

Rodman & Rodman, Washington, for plaintiff appellant.

Mayo & Mayo, Washington, for defendants Walter T. Adams, Beulah Adams Starmont, Monnie Adams, Jr. and Marion Elizabeth Adams Morrisette, appellees.

Gordon E. Campbell, Norfolk, Va., and Bryan Grimes, Washington, D. C., for defendant Hazel Grant Adams, appellee.

DENNY, Chief Justice.

The appellant does not appeal from or assign as error that portion of the judgment entered below to the effect that the devise and bequest to Monnie Adams in Item III of the will of Thomas E. Adams did not lapse by reason of his death and that his interest as a beneficiary of the trust descended to his distributees and heirs at law. The judgment entered in this respect is in accord with our decisions. Coddington v. Stone, 217 N.C. 714, 9 S.E.2d 420; Severt v. Lyall, 222 N.C. 533, 23 S.E.2d 829; Jackson v. Langley, 234 N.C. 243, 66 S.E.2d 899; Wachovia Bank & Trust Co. v. McEwen, 241 N.C. 166, 84 S.E.2d 642.

The plaintiff, individually and as executrix, assigns as error the conclusion and holding of the court below that, under the terms and provisions of the will of Thomas E. Adams, the devise and bequest to his widow in Item II thereof should be charged with the payment of one half of the costs and expenses of administration and the Federal estate taxes.

In Wachovia Bank & Trust Co. v. Green, 236 N.C. 654, 73 S.E.2d 879, Devin, C. J., speaking for the Court, said: "The word ``debts' as used in the statute G.S. § 28-105 prescribing the order of their payment would seem to include the federal estate tax. The statute specifically names ``Dues to the United States,' as debts of the decedent which must be paid, and concludes with the all-embracing clause ``all other debts and demands.' * * * The obligation to pay taxes is regarded as a personal debt due the United States. * * *"

The law with respect to liability for payment of Federal estate taxes as held in Wachovia Bank & Trust Co. v. Green, supra, remains unchanged except as modified by G.S. § 30-3(a), which reads as follows: "Upon dissent as provided for in G.S. 30-2, the surviving spouse, except as provided in subsection (b) of this section, shall take the same share of the deceased spouse's real and personal property as if the deceased had died intestate; provided, that if the deceased spouse is not survived by a child, children, or any lineal descendants of a deceased child or children, or by a parent, the surviving spouse shall receive only one half of the deceased spouse's net estate as defined in G.S. 29-2(3), which one half shall be estimated and determined before any federal estate tax is deducted or paid and shall be free and clear of such tax."

However, since no dissent is involved in this appeal, and the testator left lineal descendants, the above statute has no bearing whatever on the question presented for determination. Furthermore, as pointed out in Tolson v. Young, 260 N.C. 506, 133 S.E.2d 135, legislation which would have completely nullified the effect of the Green case failed. Senate Journal, Session 1953, 305 and 436; 31 N.C.L.Rev., 491, 494. Therefore, Sharp, J., speaking for the Court in the Tolson case, said: "Under the law, as it is now written, the only instance where a surviving wife is allowed to take her distributive share free and clear of the federal estate tax occurs when her husband dies testate, leaves no lineal descendants or parents surviving him, and she dissents from his will. This was the state of facts in First Union National Bank of North Carolina v. Melvin, 259 N.C. 255, 130 S.E.2d 387."

In Buffaloe v. Barnes, 226 N.C. 313, 38 S.E.2d 222, it is said: "The general rule, in the absence of contrary testamentary provision, is that the ultimate burden of an estate tax falls on the residuary estate. 142 A.L.R. 1137, and cited cases." Even so, we hold that the will under consideration creates no residuary estate. The devises and bequests in Items II and III of the will dispose of all the estate and are all equally specific. In Wachovia Bank & Trust Co. v. Grubb, 233 N.C. 22 62 S.E.2d 719, it is said: "The residue of an estate comprehends all of the estate left by the testator at the time of his death, subject to all deductions required by operation of law or by direction of the testator. Conversely stated, the residue is that part of the corpus of the estate left by the testator which remains after the payment of specific legacies, taxes, debts, and costs of administration."

The judgment of the court below is

Affirmed.