Pritchard v. First-Citizens Bank & Trust Co. ( 1978 )

PARKER, Judge.

G.S. 30-31 provides that the total value of all allowances for year’s support allotted under the procedure provided for in Part 3 of Article 4 of G.S. Chapter 30 “shall not in any case exceed the one half of the average annual net income of the deceased for three years next preceding his death.” The question presented by this appeal is whether the words “net income” in this context mean income remaining after deducting Federal and State income taxes. We hold that they do, and accordingly we reverse the order appealed from.

Absent any statutory definition of the words “net income” as those words are used in G.S. 30-31, we look to the history and purpose of the statute to ascertain their meaning. The purpose of the larger allowance authorized by Part 3 of Article 4 of G.S. Chapter 30 appears to be to provide the surviving spouse of a solvent decedent with a level of support commensurate with the support which he or she would have had from the deceased spouse during the first year after the spouse’s death had the death not occurred. The statute, G.S. 30-31, is designed to permit the allowance to the surviving spouse of a solvent decedent of an amount sufficient to maintain for a period that standard of living to which he or she had been accustomed, thereby avoiding the hardship which an immediate and drastic reduction in income would entail. This interpretation of the purpose of the statute is borne out by its history.

The first statute authorizing a widow’s year’s allowance enacted in North Carolina provided for a much more limited sort of support. The statute was enacted in 1796 because,, so the statute recited, “under the present existing laws, it is in the power of the administrator to expose to sale the whole crop and provisions of the deceased, and thereby deprive the widow of the means of subsistance for herself and family” 1796 N.C. Session Laws, ch. 469. Before the granting of letters of administration, the widow was permitted to “use so much of the crop, stock and provisions then on hand, as may be absolutely necessary for the support of herself and her family.” When letters of administration were granted, the widow eould petition the court to appoint one justice of the peace and three freeholders to allot “such part of the crop, stock and provisions as they may conceive necessary and adequate for the support of the widow and family, for the space of one year.” The measure of the allotment was the necessities of the widow and her children. This was emphasized by Chief Justice Ruffin in his explanation of the purpose of the widow’s year’s allowance:

[T]he purpose was to make provision for the pressing wants of the widow, personally, and to enable her at that mournful juncture, to keep her family about her for a short season, and prevent the necessity of scattering her children abroad, until time were allowed for selecting suitable situations for them. That was the sole object of the law, and not to give to the widow an additional interest in the personal estate of the husband, in the nature of a distributive share, transmissible to her executor.

Kimball v. Deming, 27 N.C. 418, 419 (1845).

The present two-tiered system was instituted by the Legislative Session of 1868-69 when the widow was given the right to a minimum year’s allowance of $300, Session Laws of 1868-69, ch. 93, s. 10, with the alternative right, upon a showing by application to the Superior Court that the estate of the decedent was not insolvent and was worth more than $2000, Id., s. 22, to the allotment of an allowance, “sufficient for the support of herself and her family according to the estate and condition of her husband,” which allowance was not to exceed “the one half of the annual net income of the deceased for the three years next preceding his death.” Id., s. 24. The larger allowance was no longer limited to the provision of the family’s bare necessities, but was set at a level which would allow the widow to receive during the first year of her widowhood that level of support which she had been accustomed to receiving from her husband. The formula prescribed for computing the maximum larger allowance has remained unaltered except that the word “average” was added to the statute, G.S. 30-31, before the words “annual net income” when the General Statutes were recodified in 1943, thereby making the statute conform to the interpretation already given it by our Supreme Court in Holland v. Henson, 189 N.C. 742, 128 S.E. 145 (1925).

In our opinion, the Legislature by this statute intended the widow to receive an allotment not exceeding one-half of the income which would probably have been actually received by and available to her deceased husband for the support of his family, had he lived an additional year. Accordingly, we hold that net income in G.S. 30-31 means “take home pay” or “after-tax income,” because this is the only income that is “netted,” that is truly available for family support purposes in a real sense, as any employee whose earnings are subject to withholding can testify. We hold, therefore, that “net income” in G.S. 30-31 is not “adjusted gross income,” as the petitioner appellee submits and as the trial court apparently held, but rather is to be computed after deducting all federal and state income taxes attributable to the income received by the decedent during the three years preceding his death.

It must be emphasized that the formula in G.S. 30-31 serves only to calculate the maximum allowance which may be assigned and does not represent an amount which must be assigned. The only requirement laid down by G.S. 30-31 is that the allowance be, within the maximum limit specified, “a value sufficient for the support of plaintiff according to the estate and condition of the decedent.” In some cases, this amount could be considerably less than the statutorily prescribed maximum.

Appellant also contends that the trial court erred in not directing that the amounts already advanced by the executors to the petitioner be credited against her year’s allowance. This matter cannot be resolved on the present record. The record on appeal contains no indication as to whether or not the petitioner has dissented from her husband’s will. However, the briefs of both parties indicate that she has filed a dissent. Whether under G.S. 30-1 she has a right to dissent is a question which, so far as we have been informed, may not yet be determined. If she has effectively dissented, she is entitled to receive her year’s support in addition to the amounts she will otherwise be entitled to receive from her husband’s estate. Bank v. Melvin, 259 N.C. 255, 130 S.E. 2d 387 (1963). If she has not effectively dissented, the year’s allowance shall “be charged against the share of the surviving spouse” under the will. G.S. 30-15. In any event, the executors will be entitled to credit on their accounting for the value of the property and cash distributed by them to the widow, and at this juncture it cannot be determined whether that credit should properly be applied against the amount she is entitled to receive as her year’s support or against the amount she will otherwise be entitled to receive from her husband’s estate.

The order appealed from is reversed and this matter is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

Judges Hedrick and Mitchell concur.