Ferguson v. Croom , 73 N.C. App. 316 ( 1985 )

326 S.E.2d 373 (1985)

J.H. FERGUSON, Admr. CTA of the Estate of George Washington Croom
v.
George Franklin CROOM, Lillian Croom Nichols, Kathryn Croom Turner, Ernest Edward Croom, Kimberly Joyce Croom and Lillian Marlene Nichols Nunalee.

No. 845SC698.

Court of Appeals of North Carolina.

March 5, 1985.

Ferguson & Baker by Jeffery R. Baker, Wilmington, for plaintiff-appellee.

Legal Services of the Lower Cape Fear by James J. Wall, Wilmington, for defendant-appellant Kimberly Joyce Croom.

Hewlett & Collins by Addison Hewlett, Jr. and John Collins, Wilmington, for defendants-appellants Ernest Edward Croom and Kathryn Elizabeth Turner.

ARNOLD, Judge.

The record indicates that Kimberly Joyce Croom appealed from the court's judgment and assigned error. However, no appellant's brief was filed in support of Kimberly's appeal. Instead, counsel filed an appellee's brief and attempted, pursuant to Rule 10(d) of the Rules of Appellate Procedure, to cross-assign as error Kimberly's exceptions noted at the time of her appeal.

Rule 10(d) of the Rules of Appellate Procedure permits an appellee to cross-assign as error any actions of the trial court which deprive the appellee of an alternative basis in law for supporting the judgment from which appeal has been taken. Since Kimberly in her appellee's brief is attempting to overturn the court's judgment rather than support it, her cross-appellee's brief is not properly before the court. Rule 13(c) of the Rules of Appellate Procedure states that "[i]f an appellant fails to file and serve his brief within the time allowed, the appeal may be dismissed... on the court's own initiative." Pursuant to the provisions of Rule 13(c) the appeal of Kimberly Joyce Croom is hereby dismissed.

By their appeal, Ernest Edward Croom and Kathryn Elizabeth Turner contend the court erred by concluding that they were not to share in the property which passed by partial intestacy because the deceased's will evidenced an intent that they should be disinherited. We agree, therefore, we reverse.

G.S. 29-8 states: "If part but not all of the estate of a decedent is validly disposed of by his will, the part not disposed of by such will shall descend and be distributed as intestate property." (Emphasis added). G.S. 29-8 creates a mandatory plan for disposing of a decedent's property which does not pass by will. It directs that the property pass by intestate succession without regard to the intent expressed by a testator in a will. The statute, which was adopted in 1959, was a codification of our common law. See Dunlap v. Ingram, 57 N.C. 178 (4 Jones Eq.) (1858) (where our Supreme Court held that property not disposed of by will passes as directed by the law regardless of attempts by the testator to disinherit the lawful takers). The rule adopted by G.S. 29-8 is also in accordance with the rule followed by a majority of our sister states. See Annot., 100 A.L.R.2d 325 (1965).

Under the Intestate Succession Act each of testator's children is entitled to take an equal share of the property not disposed of by his will. G.S. 29-16. Thus, the trial court erred in excluding Kathryn Elizabeth Turner and Ernest Edward Croom from taking a share of the intestate property. The judgment of the court is reversed and the case is remanded for the entry of judgment consistent with this opinion.

Reversed.

EAGLES and PARKER, JJ., concur.