CASE NOTES

Editor's Note. - Some of the cases below were decided under prior law.

Purpose of Chapter. - Taken as a whole, this Chapter conveys an intent by the legislature to write a reasonable will for those residents who have not done so. Newlin v. Gill, 293 N.C. 348, 237 S.E.2d 819 (1977).

Descents are regulated by statute in this State. Edwards v. Yearby, 168 N.C. 663, 85 S.E. 19 (1915); University of N.C. v. Markham, 174 N.C. 338, 93 S.E. 845 (1917).

English Canons of Descent Formerly Followed. - The English canons of descent remained in force in North Carolina until 1784. Because certain provisions seemed repugnant to republican principles, the legislature was led to make the changes which distinguish this section from the English act. Clement v. Cauble, 55 N.C. 82 (1854).

Legislative Intent as to Effect of Adoption. - The General Assembly, on its own motion and also in response to judicial decisions, has, with every amendment and every rewrite of G.S. 48-23, evidenced its intent that by adoption the child adopted becomes legally a child of its new parents, and the adoption makes him legally a stranger to the bloodline of his natural parents. Crumpton v. Crumpton, 28 N.C. App. 358, 221 S.E.2d 390 (1976), aff'd, 53 N.C. App. 97, 281 S.E.2d 1 (1981).

Wrongful Death Beneficiaries Determined as of Time of Death. - The persons who, under the Intestate Succession Act, are entitled to the recovery in a wrongful death action are to be determined as of the time of the decedent's death. First Union Nat'l Bank v. Hackney, 266 N.C. 17, 145 S.E.2d 352 (1965).

Proof of the death of a person raises a presumption that such person died intestate. Collins v. R.L. Coleman & Co., 262 N.C. 478, 137 S.E.2d 803 (1964).

Cited in Chisholm v. Hall, 255 N.C. 374, 121 S.E.2d 726 (1961); Chappell v. Chappell, 260 N.C. 737, 133 S.E.2d 666 (1963); In re Peacock, 261 N.C. 749, 136 S.E.2d 91 (1964); Byers v. North Carolina State Hwy. Comm'n, 3 N.C. App. 139, 164 S.E.2d 535 (1968); Baxter v. Jones, 14 N.C. App. 296, 188 S.E.2d 622 (1972); Rodman v. Rodman, 21 N.C. App. 397, 204 S.E.2d 695 (1974); Wake County ex rel. Carrington v. Townes, 53 N.C. App. 649, 281 S.E.2d 765 (1981); Bowling v. Combs, 60 N.C. App. 234, 298 S.E.2d 754 (1983); In re Estate of Finch, 97 N.C. App. 489, 389 S.E.2d 126 (1990).

CASE NOTES

• I. General Consideration.
• II. Advancement.
• III. Estate.
• IV. Net Estate.
• V. Share.
• VI. Heirs.
• VII. Lineal Descendants.
• VIII. Costs of Administration.

CASE NOTES

Distinctions Abolished Only for Purposes of Determining Succession. - This section abolishes the distinction between real and personal property only in the determination of those persons who take upon intestate succession. First Union Nat'l Bank v. Melvin, 259 N.C. 255, 130 S.E.2d 387 (1963).

Applied in In re Johnston, 16 N.C. App. 38, 190 S.E.2d 879 (1972).

CASE NOTES

Cited in Dudley v. Staton, 257 N.C. 572, 126 S.E.2d 590 (1962); Marlowe v. Clark, 112 N.C. App. 181, 435 S.E.2d 354 (1993); Watson v. Smoker, 138 N.C. App. 158, 530 S.E.2d 344 (2000).

CASE NOTES

Rights of collateral succession are limited to the descendants of the intestate's parents or grandparents. This section limits such succession to those persons who are within five degrees of kinship to the intestate, and the effect of the proviso engrafted upon this section is to provide for unlimited succession by collateral kinsmen descended from the intestate's parents or grandparents in the event there are no collateral kinsmen of the fifth degree in such lines of descent. Newlin v. Gill, 293 N.C. 348, 237 S.E.2d 819 (1977).

The limitation upon collateral succession to heirs within five degrees of kinship to the intestate contained in this section is a limitation upon succession by heirs descended from parents or grandparents of the intestate. Newlin v. Gill, 293 N.C. 348, 237 S.E.2d 819 (1977).

Escheats Not Eliminated by Proviso of this Section. - This section at most imposes a limitation upon intestate succession, as defined in G.S. 29-15, and by its proviso restates the existing effect of G.S. 29-15, i.e., that collateral descent shall be unlimited when it is within the parentela of an intestate's parents or grandparents. Thus, in enacting this section, the legislature did not intend to eliminate escheats. Newlin v. Gill, 293 N.C. 348, 237 S.E.2d 819 (1977).

Effect of Section as to Escheat under G.S. 29-12. - This section has no application to escheat under G.S. 29-12 unless the common ancestor of the collateral kin and the decedent is a parent or grandparent of the decedent. In such an event the main clause in this section operates to exclude a collateral kinsman of a sixth or higher degree from succeeding to the estate, even though he is a lineal descendent of the decedent's parents or grandparents. The proviso in this section, in order to prevent the escheat of the decedent's estate, provides for unlimited succession by collateral kinsmen who are descendants of the decedent's parents or grandparents when there is no such collateral kinsman within the fifth degree. Newlin v. Gill, 32 N.C. App. 392, 232 S.E.2d 213, aff'd, 293 N.C. 348, 237 S.E.2d 819 (1977).

CASE NOTES

Section Codifies Common Law. - This section, which was adopted in 1959, was a codification of the common law. Ferguson v. Croom, 73 N.C. App. 316, 326 S.E.2d 373 (1985).

Section Adopts Majority Rule. - The rule adopted by this section is also in accordance with the rule followed by a majority of the sister states. Ferguson v. Croom, 73 N.C. App. 316, 326 S.E.2d 373 (1985).

This section 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. Ferguson v. Croom, 73 N.C. App. 316, 326 S.E.2d 373 (1985).

Presumption against partial intestacy is merely a rule of construction and cannot have the effect of transferring property in the face of contrary provisions in the will. The presumption must yield when outweighed by manifest and unequivocal intent. McKinney v. Mosteller, 321 N.C. 730, 365 S.E.2d 612 (1988).

Illustrative Case. - Where, as gleaned from will itself, the intent of the testator was that the residue of his estate was to pass to named beneficiaries under the residuary clause of the will only if testator's wife survived him, and she did not, the residue would pass to his heirs at law in accordance with the laws of intestacy as enacted by the legislature. McKinney v. Mosteller, 321 N.C. 730, 365 S.E.2d 612 (1988).

Where decedent did not provide a testamentary disposition of four parcels of land, either specifically or through a residuary clause, the land did not pass under decedent's will, but instead qualified as a partial intestacy. Tarlton v. Stidham, 122 N.C. 77, 469 S.E.2d 38 (1996).

CASE NOTES

Child Born after 10 Months. - If a child is born more than 10 lunar months or 280 days after the death of the intestate, the presumption is that the child was not en ventre sa mere when the intestate died, but this presumption may be rebutted by evidence tending to show that he was in fact the father of the child. Byerly v. Tolbert, 250 N.C. 27, 108 S.E.2d 29 (1959), decided under former Rule 7 of old § 29-1. See also Britton v. Miller, 63 N.C. 268 (1869); In re Will of Hester, 84 N.C. App. 585, 353 S.E.2d 643 (1987).

CASE NOTES

A renunciation is not a grant of legal title by the renouncer. It merely triggers a set of statutorily defined legal rights which ultimately determine ownership. Hinson v. Hinson, 80 N.C. App. 561, 343 S.E.2d 266 (1986), decided under this section as it read prior to October 1, 1975.

A renunciation relates back to the death of the testator or intestate. The renouncer never actually holds legal title to the property. Hinson v. Hinson, 80 N.C. App. 561, 343 S.E.2d 266 (1986), decided under this section as it read prior to Oct. 1, 1975.

A parol trust may not be engrafted upon a renounced interest. Hinson v. Hinson, 80 N.C. App. 561, 343 S.E.2d 266 (1986), decided under this section as it read prior to Oct. 1, 1975.

Action Seeking Constructive Trust. - Plaintiff, who sought to assert that defendant unduly influenced his decision to sign a "Petition to Renounce" his interest in will, could maintain an action seeking the declaration of a constructive trust. Hinson v. Hinson, 80 N.C. App. 561, 343 S.E.2d 266 (1986), decided under this section as it read prior to Oct. 1, 1975.

Collateral Attack. - The legality of plaintiff 's renunciation under this section as it read prior to Oct. 1, 1975, was a matter before the clerk, who, having exclusive original jurisdiction of the administration of testatrix's estate, allowed plaintiff 's "Petition to Renounce." As a party to the original action, plaintiff could not later collaterally attack it. Hinson v. Hinson, 80 N.C. App. 561, 343 S.E.2d 266 (1986), decided under this section as it read prior to Oct. 1, 1975.

Cited in Brown v. Green, 3 N.C. App. 506, 165 S.E.2d 534 (1969).

CASE NOTES

There is a distinction between derelict property and escheated property. An escheat occurs when the property owner dies intestate and without relatives descended from a common parent or grandparent. North Carolina State Treas. v. City of Asheville, 61 N.C. App. 140, 300 S.E.2d 283 (1983).

Presumption That Distant Relatives Not Included in Will. - Underlying this provision for escheat of the estate in the absence of certain relatives is a logical presumption that the intestate would not have included distant relatives in his will. Newlin v. Gill, 293 N.C. 348, 237 S.E.2d 819 (1977).

Effect of G.S. 29-7 as to Escheat under This Section. - G.S. 29-7 has no application to escheat under this section unless the common ancestor of the collateral kin and the decedent is a parent or grandparent of the decedent. In such an event the main clause in G.S. 29-7 operates to exclude a collateral kinsman of a sixth or higher degree from succeeding to the estate, even though he is a lineal descendent of the decedent's parents or grandparents. The proviso in G.S. 29-7 in order to prevent the escheat of the decedent's estate provides for unlimited succession by collateral kinsmen who are descendants of the decedent's parents or grandparents when there is no such collateral kinsman within the fifth degree. Newlin v. Gill, 32 N.C. App. 392, 232 S.E.2d 213, aff'd, 293 N.C. 348, 237 S.E.2d 819 (1977).

G.S. 29-7 at most imposes a limitation upon intestate succession, as defined in G.S. 29-15, and by its proviso restates the existing effect of G.S. 29-15, i.e., that collateral descent shall be unlimited when it is within the parentela of an intestate's parents or grandparents. Thus, in enacting G.S. 29-7, the legislature did not intend to eliminate escheats. Newlin v. Gill, 293 N.C. 348, 237 S.E.2d 819 (1977).

Unrefunded ticket proceeds is neither abandoned nor derelict property. By purchasing a ticket to a concert, the ticket holder enters into a contract with the auditorium and the performer. If the contract is not performed, he or she may rescind the agreement and demand a refund, but is not compelled to do so. Nor must the auditorium operator or performer refund the purchase price absent a demand. If that were the case, the ticket holder would be unjustly enriched in retaining both money and memento. The auditorium is not a trustee of the unrefunded proceeds of the ticket sale; the auditorium is simply a party to an unperformed contract. North Carolina State Treas. v. City of Asheville, 61 N.C. App. 140, 300 S.E.2d 283 (1983).

CASE NOTES

The power of the legislature to determine who shall take the property of a person dying subsequent to the effective date of a legislative act cannot be doubted. Johnson v. Blackwelder, 267 N.C. 209, 148 S.E.2d 30 (1966).

Law at Time of Death Governs. - It is well settled that an estate must be distributed among heirs and distributees according to the law as it exists at the time of the death of the ancestor. Johnson v. Blackwelder, 267 N.C. 209, 148 S.E.2d 30 (1966).

Even Though Decedent Became Incompetent to Make Will Before Law Changed. - Where it was alleged that an intestate became mentally incapable of making a will prior to ratification of the Intestate Succession Act on June 10, 1959, and that such mental incapacity continued until his death, and it was contended that the intestate's personal estate should be distributed in accordance with the Intestate Succession Law as it existed on June 9, 1959, it was held that this contention assumes: Before he became mentally incapable of making a will, the intestate had knowledge of and was pleased with the statutes of descent and distribution; if he had made a will, he would have disposed of his estate as provided by the statutes then in effect; he would have been displeased with the provisions of the 1959 act; and, but for his mental incapacity, would have made a will disposing of his estate as provided by the statutes in effect prior to ratification of the 1959 act. Such successive assumptions underlying the contention are unwarranted. They relate to matters that lie wholly within the realm of speculation. The intestate had no vested right in the statutes of descent and distribution in effect prior to the ratification of the 1959 act. He was charged with knowledge that these statutes were subject to change by the General Assembly. Johnson v. Blackwelder, 267 N.C. 209, 148 S.E.2d 30 (1966).

Determinative fact is that the intestate made no will. Hence, his estate "shall descend and be distributed" in accordance with the statutes in effect on the date of his death, namely, this Chapter. Johnson v. Blackwelder, 267 N.C. 209, 148 S.E.2d 30 (1966).

Wife's right to dissent from her husband's will depends on whether she is entitled to take a widow's share of his estate under this section and G.S. 29-14. Sloop v. Sloop, 24 N.C. App. 295, 210 S.E.2d 262 (1974).

Wife Waived Right to Dissent from Will. - Where, by the terms of a deed of separation a wife released her right to take a widow's share of her husband's estate, she thereby waived her right to dissent from his will. Sloop v. Sloop, 24 N.C. App. 295, 210 S.E.2d 262 (1974).

Any or all of the marital rights under this section may be surrendered by a properly drawn separation agreement complying with the requirements of former G.S. 52-6. Lane v. Scarborough, 19 N.C. App. 32, 198 S.E.2d 45, rev'd on other grounds, 284 N.C. 407, 200 S.E.2d 622 (1973).

Intent to Release Share Implicit in Separation Agreement. - Where the intention of each party to the marriage to release his or her share in the estate of the other is implicit in the express provisions of their separation agreement, their situation and purpose at the time the instrument was executed, the law will imply release of rights under this section and specifically enforce the agreement. Lane v. Scarborough, 284 N.C. 407, 200 S.E.2d 622 (1973).

Provisions in a separation agreement that each would thereafter acquire, hold, and dispose of property as though unmarried and that each renounced the right to administer upon the estate of the other refuted the contention that one spouse intended to retain any rights in the other's estate. Lane v. Scarborough, 284 N.C. 407, 200 S.E.2d 622 (1973).

Wife May Be Administratrix Where Marital Relations Resumed. - Where, after the execution of a separation agreement and consent judgment between husband and wife, the wife returned to the marital home which she and her husband shared before the separation; thereafter the commissioners named in the consent judgment to sell the couple's joint property for division were instructed not to do so; the husband paid the wife's attorney for representing her in the litigation between them; and from the time the wife returned to the marital home until her husband's death, the husband and wife lived continuously in their marital residence, the wife was entitled to qualify as administratrix of the estate of her husband and share in his estate as his widow without prejudice by reason of the separation agreement and consent judgment. In re Estate of Adamee, 291 N.C. 386, 230 S.E.2d 541 (1976).

Cited in Tolson v. Young, 260 N.C. 506, 133 S.E.2d 135 (1963); In re Estate of Connor, 5 N.C. App. 228, 168 S.E.2d 245 (1969); Long v. Coble, 11 N.C. App. 624, 182 S.E.2d 234 (1971).

CASE NOTES

This section defines the share of the surviving spouse of an intestate. Tolson v. Young, 260 N.C. 506, 133 S.E.2d 135 (1963); Peoples Oil Co. v. Richardson, 271 N.C. 696, 157 S.E.2d 369 (1967).

Words Describing Relationships Bear Ordinary Meanings. - In carefully naming the persons who take in cases of intestacy using words describing family relationships such as "parents," "brothers," "sisters," "grandparents," "aunts" and "uncles," the legislature intended that these words bear their ordinary and usual meaning. Newlin v. Gill, 293 N.C. 348, 237 S.E.2d 819 (1977).

Words Cannot Be Expanded. - The words "brother," "parent" and "grandparent" cannot be expanded to include other relationships such as "great-grandfather" or "great uncle." Therefore, the maxim, "Expressio unius est exclusio alterius" (the expression of one thing is the exclusion of another) tends to exclude collateral kin who are not in the parentela of the intestate's parents or grandparents. Newlin v. Gill, 293 N.C. 348, 237 S.E.2d 819 (1977).

Definition of "Share" in G.S. 29-2(6) Applies. - The definition contained in G.S. 29-2(6) is intended to apply when "share" is used "to describe the share of a net estate or property," e.g., a share under this section which thus "includes . . . the undivided fractional interest in the real property." Smith v. Smith, 265 N.C. 18, 143 S.E.2d 300 (1965).

The intestate share does not include the value of property passing by survivorship (which includes property owned as tenants by the entirety), joint accounts with right of survivorship, and insurance payable to the surviving spouse. In re Estate of Connor, 5 N.C. App. 228, 168 S.E.2d 245 (1969).

Estate Does Not Include Property Conveyed Away Prior to Death. - For purposes of this section a wife's husband's estate would not include property which he had conveyed away prior to his death, even though she had not joined in the conveyance. Heller v. Heller, 7 N.C. App. 120, 171 S.E.2d 335 (1969).

A deed by plaintiff's husband, which was executed while he and plaintiff were living together and which conveyed his separate real property to his children by a prior marriage, was effective to convey title to the children free from any claims of plaintiff. Heller v. Heller, 7 N.C. App. 120, 171 S.E.2d 335 (1969).

Insofar as concerns any rights which the spouse of a married person might acquire by virtue of the provisions of this section, the General Assembly has prescribed no regulation or limitations relating to the conveyance during lifetime by such married person of his or her separate real or personal property. Heller v. Heller, 7 N.C. App. 120, 171 S.E.2d 335 (1969).

Present Right of Possession Not Conferred. - A wife is not a real party in interest so as to interpose as a defense or counterclaim, in an action in ejectment instituted by her husband's grantee, that her husband had fraudulently conveyed the lands without her joinder in order to deprive her of the possession thereof, since this section, defining the share of the surviving spouse of an intestate, and G.S. 29-30, providing for a life estate at the election of the surviving spouse, do not give her a present right of possession. Peoples Oil Co. v. Richardson, 271 N.C. 696, 157 S.E.2d 369 (1967).

Surviving Wife and Child Each Take Undivided One Half of Lands. - Upon the death of an intestate, title to his lands immediately vests in his wife and child under this section, each taking a one-half undivided interest in fee. Smith v. Smith, 265 N.C. 18, 143 S.E.2d 300 (1965).

Share of Second or Successive Spouse. - Former G.S. 30-3(b), which provided that a second or successive spouse who dissented from the will of his deceased spouse should take only one half the amount provided by the Intestate Succession Act for the surviving spouse if the testator had surviving him lineal descendants by a former marriage but there were not surviving lineal descendants by the second or successive marriage, was not arbitrarily discriminatory and capricious so as to be violative of the due process provisions of the federal and State Constitutions. Vinson v. Chappell, 275 N.C. 234, 166 S.E.2d 686 (1969).

Absence of Lineal Descendants. - There being no lineal descendants, under this section the surviving widow is entitled to "all the net estate" of an intestate. Johnson v. Blackwelder, 267 N.C. 209, 148 S.E.2d 30 (1966).

Where decedent was not survived by a child, children, or any lineal decedent of a deceased child or children, or by a parent, surviving spouse was proper recipient of remainder interest in four parcels of land that passed as partial intestacy. Tarlton v. Stidham, 122 N.C. App. 77, 469 S.E.2d 38 (1996).

Wife's right to dissent from her husband's will depends on whether she is entitled to take a widow's share of his estate under G.S. 29-13 and this section. Sloop v. Sloop, 24 N.C. App. 295, 210 S.E.2d 262 (1974).

Wife Waived Right to Dissent from Will. - Where by the terms of a deed of separation a wife released her right to take a widow's share of her husband's estate, she thereby waived her right to dissent from his will. Sloop v. Sloop, 24 N.C. App. 295, 210 S.E.2d 262 (1974).

Distribution of Estate When Surviving Spouse Dissents from Will. - When a surviving spouse dissents from a will, the intestate share should be allocated so as to cause the least possible disruption of the decedent's plan for the distribution of his estate. In partitioning testatrix's property, her will should be given consideration, and insofar as possible the beneficiaries of the will should receive the property testatrix intended for them to receive. In re Estate of Etheridge, 33 N.C. App. 585, 235 S.E.2d 924, cert. denied, 293 N.C. 253, 237 S.E.2d 535 (1977).

This section does not purport to give a dissenting spouse the right to select the particular property he or she will receive in opposition to the dominant intent expressed in a will. The dominant intent expressed in the will is still controlling so long as it can be carried out and leave the dissenting spouse with the prescribed interest in value in the estate. In re Estate of Etheridge, 33 N.C. App. 585, 235 S.E.2d 924, cert. denied, 293 N.C. 253, 237 S.E.2d 535 (1977).

Wrongful Death Action. - In a wrongful death action, the real parties in interest were the beneficiaries as defined in the Wrongful Death Act, who were the same persons who would have received property had the decedent died intestate; where the decedent was not survived by a child, children, or any lineal descendant of a deceased child or children, or by a parent, the decedent's spouse received all of the wrongful death proceeds, and where the widow was not entitled to a wrongful death recovery, the remaining beneficiaries did not succeed to a full 100 percent, but only received their original percentage, so there were no beneficiaries to the wrongful death claim. Locust v. Pitt County Mem'l Hosp., 154 N.C. App. 103, 571 S.E.2d 668 (2002), cert. denied, 356 N.C. 673, 579 S.E.2d 272 (2003).

Where decedent's ex-spouse abandoned her interest in the decedent's estate at the time of death, decedent's siblings were entitled to share in any wrongful death proceeds, distribution was dictated by the laws of intestacy, and decedent's sister, as administratrix had standing to file the action. Locust v. Pitt County Mem'l Hosp., Inc., 358 N.C. 113, 591 S.E.2d 543 (2004).

Wrongful Act Bars Husband from Share of Wrongful Death Recovery. - Where it is a husband's wrongful act which caused the death of his wife intestate, he may not share in a recovery from an action for wrongful death. Should the jury return a verdict in favor of the administrator of her estate, the court will enter judgment for only two thirds of the amount of the verdict. Cummings v. Locklear, 12 N.C. App. 572, 183 S.E.2d 832, cert. denied, 279 N.C. 726, 184 S.E.2d 883 (1971).

In an action by an administrator under the Wrongful Death Act, G.S. 28A-18-2, where husband caused the death of his wife, the award must be reduced by the statutory share of the wrongdoer. St. Paul Fire & Marine Ins. Co. v. Lack, 476 F.2d 583 (4th Cir. 1973).

This result is not precluded by the "slayer statute," G.S. 31A-4, which excludes the wrongdoer from taking by declaring him to have constructively died prior to the deceased, since the slayer's exclusion by G.S. 31A-4 appears to apply only to inheritance from the decedent's "estate," while wrongful death awards have consistently been deemed not to pass through the personal estate of the deceased, but rather to arise out of a right of action belonging peculiarly to the personal representative for the benefit of the intestate successors. St. Paul Fire & Marine Ins. Co. v. Lack, 476 F.2d 583 (4th Cir. 1973).

Any or all of the marital rights under this section may be surrendered by a properly drawn separation agreement complying with the requirements of former G.S. 52-6. Lane v. Scarborough, 19 N.C. App. 32, 198 S.E.2d 45, rev'd on other grounds, 284 N.C. 407, 200 S.E.2d 622 (1973).

Remarriage Restores All Rights and Privileges. - When a married couple enters into a separation agreement, later divorces, and then remarries, each party to the marriage regains all rights and privileges incident to marriage unless there is evidence to the contrary. Batten v. Batten, 125 N.C. App. 685, 482 S.E.2d 18 (1997).

Intent to Release Share Implicit in Separation Agreement. - Where the intention of each party to the marriage to release his or her share in the estate of the other is implicit in the express provisions of their separation agreement, their situation and purpose at the time the instrument was executed, the law will imply release of rights under this section and specifically enforce the agreement. Lane v. Scarborough, 284 N.C. 407, 200 S.E.2d 622 (1973).

Provisions in a separation agreement that each would thereafter acquire, hold, and dispose of property as though unmarried and that each renounced the right to administer upon the estate of the other refuted the contention that one spouse intended to retain any rights in the other's estate. Lane v. Scarborough, 284 N.C. 407, 200 S.E.2d 622 (1973).

Wife May Be Administratrix Where Marital Relations Resumed. - Where, after the execution of a separation agreement and consent judgment between husband and wife, the wife returned to the marital home which she and her husband shared before the separation; thereafter the commissioners named in the consent judgment to sell the couple's joint property for division were instructed not to do so; the husband paid the wife's attorney for representing her in the litigation between them; and from the time the wife returned to the marital home until her husband's death, the husband and wife lived continuously in their marital residence, the wife was entitled to qualify as administratrix of the estate of her husband and share in his estate as his widow without prejudice by reason of the separation agreement and consent judgment. In re Estate of Adamee, 291 N.C. 386, 230 S.E.2d 541 (1976).

Applied in Smith v. Perdue, 258 N.C. 686, 129 S.E.2d 293 (1963); Cox v. Shaw, 263 N.C. 361, 139 S.E.2d 676 (1965); Phillips v. Phillips, 296 N.C. 590, 252 S.E.2d 761 (1979); Tighe v. Michal, 41 N.C. App. 15, 254 S.E.2d 538 (1979).

Cited in Ivery v. Ivery, 258 N.C. 721, 129 S.E.2d 457 (1963); Forgy v. Schwartz, 262 N.C. 185, 136 S.E.2d 668 (1964); Swain v. Tillet, 269 N.C. 46, 152 S.E.2d 297 (1967); In re Will of Farr, 277 N.C. 86, 175 S.E.2d 578 (1970); Phillips v. Phillips, 34 N.C. App. 428, 238 S.E.2d 790 (1977); Newlin v. Gill, 32 N.C. App. 392, 232 S.E.2d 213 (1977); Harris v. Ashley, 38 N.C. App. 494, 248 S.E.2d 393 (1978); Bowling v. Combs, 60 N.C. App. 234, 298 S.E.2d 754 (1983); Carver v. Carver, 310 N.C. 669, 314 S.E.2d 739 (1984); Rawls v. Rideout, 74 N.C. App. 368, 328 S.E.2d 783 (1985); In re Estate of Edwards, 77 N.C. App. 302, 335 S.E.2d 39 (1985); In re Estate of Edwards, 316 N.C. 698, 343 S.E.2d 913 (1986); In re Estate of Francis, 327 N.C. 101, 394 S.E.2d 150 (1990); Olvera v. Edmundson, - F. Supp. 2d - (W.D.N.C. Sept. 21, 2001).

CASE NOTES

Words Describing Relationships Bear Ordinary Meanings. - In carefully naming the persons who take in cases of intestacy using words describing family relationships such as "parents," "brothers," "sisters," "grandparents," "aunts" and "uncles," the legislature intended that these words bear their ordinary and usual meaning. Newlin v. Gill, 293 N.C. 348, 237 S.E.2d 819 (1977).

Words Cannot Be Expanded. - The words "brother," "parent" and "grandparent" cannot be expanded to include other relationships such as "great-grandfather" or "great uncle." Therefore, the maxim "Expressio unius est exclusio alterius" (the expression of one thing is the exclusion of another) tends to exclude collateral kin who are not in the parentela of the intestate's parents or grandparents. Newlin v. Gill, 293 N.C. 348, 237 S.E.2d 819 (1977).

G.S. 31A-2 Modifies Subdivision (3) of This Section. - G.S. 31A-2, which specifies acts barring rights of parents to intestate succession in child's estate and to administer child's estate, must be deemed a part of the Intestate Succession Act and a modification of subdivision (3) of this section, as fully as if it had been written thereinto or specifically designated as an amendment thereto. Williford v. Williford, 288 N.C. 506, 219 S.E.2d 220 (1975).

When a gift is made to a class of "heirs," the intestacy laws govern not only the identification of the "heirs," but also the shares to which they are entitled. Rawls v. Rideout, 74 N.C. App. 368, 328 S.E.2d 783 (1985).

Per Capita Distribution. - This chapter calls for a per capita distribution of the decedent's real and personal property to all surviving persons in the same degree of relationship to the decedent. The distribution scheme is commonly referred to as "per capita at each generation." Rawls v. Rideout, 74 N.C. App. 368, 328 S.E.2d 783 (1985).

Wrongful Death Action. - In a wrongful death action, the real parties in interest were the beneficiaries as defined in the Wrongful Death Act, who were the same persons who would have received property had the decedent died intestate; where a widow, who was the decedent's sole intestate beneficiary, had abandoned the decedent before his death, she was not entitled to a wrongful death recovery, and since the remaining beneficiaries did not succeed to a full 100 percent, but only received their original percentage, there were no beneficiaries to the wrongful death claim. Locust v. Pitt County Mem'l Hosp., 154 N.C. App. 103, 571 S.E.2d 668 (2002), cert. denied, 356 N.C. 673, 579 S.E.2d 272 (2003).

Where decedent's ex-spouse abandoned her interest in the decedent's estate at the time of death, decedent's siblings were entitled to share in any wrongful death proceeds, distribution was dictated by the laws of intestacy, and decedent's sister, as administratrix had standing to file the action. Locust v. Pitt County Mem'l Hosp., Inc., 358 N.C. 113, 591 S.E.2d 543 (2004).

Plaintiff father, having abandoned the deceased when the latter was a minor child, could not share in the proceeds of the settlement of the claim for wrongful death now in the hands of the administratrix. Williford v. Williford, 288 N.C. 506, 219 S.E.2d 220 (1975).

Putative Child Not Heir - Putative child was not the child's putative father's heir because strict compliance, not substantial compliance, with the procedures in G.S. 29-19(b)(2) was required to establish an illegitimate child as a legal heir, and the statute was not strictly complied with when the father's affidavit of paternity was not filed with the clerk. In re Estate of Williams, 246 N.C. App. 76, 783 S.E.2d 253 (2016).

Applied in Smith v. Allied Exterminators, Inc., 279 N.C. 583, 184 S.E.2d 296 (1971); Cummings v. Locklear, 12 N.C. App. 572, 183 S.E.2d 832 (1971); Bowen v. Constructors Equip. Rental Co., 283 N.C. 395, 196 S.E.2d 789 (1973); Forester v. Marler, 31 N.C. App. 84, 228 S.E.2d 646 (1976); Jernigan v. Stokley, 34 N.C. App. 358, 238 S.E.2d 318 (1977); McDowell v. Estate of Anderson, 69 N.C. App. 725, 318 S.E.2d 258 (1984); Betts v. Parrish, 312 N.C. 47, 320 S.E.2d 662 (1984).

Cited in Sloop v. Williams Exxon Serv., 24 N.C. App. 129, 210 S.E.2d 111 (1974); Newlin v. Gill, 32 N.C. App. 392, 232 S.E.2d 213 (1977); Christenbury v. Hedrick, 32 N.C. App. 708, 234 S.E.2d 3 (1977); Harris v. Ashley, 38 N.C. App. 494, 248 S.E.2d 393 (1978); In re Estate of McCoy, 39 N.C. App. 52, 249 S.E.2d 473 (1978); Lucas v. Jarrett, 55 N.C. App. 185, 284 S.E.2d 711 (1981); Herndon v. Robinson, 57 N.C. App. 318, 291 S.E.2d 305 (1982); Betts v. Parrish, 62 N.C. App. 77, 302 S.E.2d 288 (1983); Carver v. Carver, 310 N.C. 669, 314 S.E.2d 739 (1984); Jenkins v. Wheeler, 69 N.C. App. 140, 316 S.E.2d 354 (1984); McKinney v. Mosteller, 321 N.C. 730, 365 S.E.2d 612 (1988); State v. Smith, 90 N.C. App. 161, 368 S.E.2d 33 (1988); Brimley v. Logging, 93 N.C. App. 467, 378 S.E.2d 52 (1989); Stutts v. Adair, 94 N.C. App. 227, 380 S.E.2d 411 (1989); State v. Gilmore, 330 N.C. 167, 409 S.E.2d 888 (1991); Hales v. Thompson, 111 N.C. App. 350, 432 S.E.2d 388 (1993); Early v. Bowen, 116 N.C. App. 206, 447 S.E.2d 167 (1994), cert. denied, 339 N.C. 611, 454 S.E.2d 249 (1995), cert. denied, 456 S.E.2d 519 (1995); Hixson v. Krebs, 136 N.C. App. 183, 523 S.E.2d 684 (1999); In re Estate of Lunsford, 143 N.C. App. 646, 547 S.E.2d 483 (2001), cert. granted, 353 N.C. 727, 550 S.E.2d 779; Olvera v. Edmundson, - F. Supp. 2d - (W.D.N.C. Sept. 21, 2001); In re Estate of Lunsford, 359 N.C. 382, 610 S.E.2d 366 (2005); In re J.A.A., 175 N.C. App. 66, 623 S.E.2d 45 (2005); In re C.C., 173 N.C. App. 375, 618 S.E.2d 813 (2005).

CASE NOTES

Editor's Note. - Some of the cases below were decided under prior law.

When a gift is made to a class of "heirs," the intestacy laws govern not only the identification of the "heirs," but also the shares to which they are entitled. Rawls v. Rideout, 74 N.C. App. 368, 328 S.E.2d 783 (1985).

Per Capita Distribution. - This chapter calls for a per capita distribution of the decedent's real and personal property to all surviving persons in the same degree of relationship to the decedent. The distribution scheme is commonly referred to as "per capita at each generation." Rawls v. Rideout, 74 N.C. App. 368, 328 S.E.2d 783 (1985).

There is no logical reason for the Court of Appeals to favor a per capita distribution over a per stirpes distribution absent the intent of the testatrix as ascertained from the four corners of the will. Lewis v. Ecklin, 110 N.C. App. 73, 428 S.E.2d 855 (1993).

Not Function of Administrator to Partition Real Estate. - It is the duty of the administrator to make distribution of the surplus of his intestate's personal property among those entitled thereto, but it is not his function to partition the real estate of his decedent among the heirs. King v. Neese, 233 N.C. 132, 63 S.E.2d 123 (1951).

Siblings. - Where decedent's ex-spouse abandoned her interest in the decedent's estate at the time of death, decedent's siblings were entitled to share in any wrongful death proceeds, distribution was dictated by the laws of intestacy, and decedent's sister, as administratrix had standing to file the action. Locust v. Pitt County Mem'l Hosp., Inc., 358 N.C. 113, 591 S.E.2d 543 (2004).

Applied in Cummings v. Locklear, 12 N.C. App. 572, 183 S.E.2d 832 (1971); Jernigan v. Stokley, 34 N.C. App. 358, 238 S.E.2d 318 (1977); Ferguson v. Croom, 73 N.C. App. 316, 326 S.E.2d 373 (1985).

Cited in Sloop v. Williams Exxon Serv., 24 N.C. App. 129, 210 S.E.2d 111 (1974); House v. White, 35 N.C. App. 124, 240 S.E.2d 489 (1978); Harris v. Ashley, 38 N.C. App. 494, 248 S.E.2d 393 (1978); Ladd v. Estate of Kellenberger, 314 N.C. App. 477, 334 S.E.2d 751 (1985); Brimley v. Logging, 93 N.C. App. 467, 378 S.E.2d 52 (1989); Jamin v. Williamson, 94 N.C. App. 699, 381 S.E.2d 345 (1989); Early v. Bowen, 116 N.C. App. 206, 447 S.E.2d 167 (1994), cert. denied, 339 N.C. 611, 454 S.E.2d 249 (1995), cert. denied, 456 S.E.2d 519 (1995); Allen v. Piedmond Transp. Servs., Inc., 116 N.C. App. 234, 447 S.E.2d 835 (1994).

CASE NOTES

Editor's Note. - Some of the cases below were decided under prior law.

North Carolina recognizes the doctrine of equitable adoption. Lankford v. Wright, 347 N.C. 115, 489 S.E.2d 604 (1997).

Equitable adoption, does not confer the incidents of formal statutory adoption; rather, it merely confers rights of inheritance upon the foster child in the event of intestacy of the foster parents. Lankford v. Wright, 347 N.C. 115, 489 S.E.2d 604 (1997).

The term "lineal descendants" is defined at G.S. 29-2(4) as "all children of such person"; this would include even illegitimate children of a deceased female, under G.S. 29-19(a), and clearly includes adopted children, under this section. In re Estate of Edwards, 77 N.C. App. 302, 335 S.E.2d 39 (1985), aff'd, 316 N.C. 698, 343 S.E.2d 913 (1986).

The purpose of subsection (e) of this section is to make it clear that the relationship of parent and child is not severed when the child is adopted by the spouse of the biological parent. In re Estate of Edwards, 316 N.C. 698, 343 S.E.2d 913, rehearing denied, 317 N.C. 704, 347 S.E.2d 40 (1986).

Rights of Adopted Child Same as for Natural Child. - The legislature has provided that an adopted child from the date of its adoption shall have the same property rights as a natural born child from the date of its birth. Headen v. Jackson, 255 N.C. 157, 120 S.E.2d 598 (1961).

Any provision of law which prevented an adopted child from sharing in property, by descent or distribution in the same manner and to the same extent as a natural born child, was swept away by the repealing clause in chapter 813, Session Laws of 1955. Headen v. Jackson, 255 N.C. 157, 120 S.E.2d 598 (1961).

An adopted child shall be entitled to inherit property by, through, and from his adoptive parents as if he were born the legitimate child of the adoptive parents. Greenlee v. Quinn, 255 N.C. 601, 122 S.E.2d 409 (1961).

Right of an adopted child to inherit vests as of death of her adoptive parent, and therefore where the parent died prior to the effective date of an act creating a new rule of descent and of distribution the act is not applicable. Wilson v. Anderson, 232 N.C. 521, 61 S.E.2d 447 (1950).

Inheritance from Brother of Adopting Parent. - Under the provisions of Session Laws 1955, c. 813, s. 6, an adopted child was entitled to inherit property from the brother of the adopting parent, notwithstanding that the decree of adoption was entered prior to the passage of the statute, the legislature having the power to determine who shall take the property of a person dying subsequent to the effective date of a legislative act. Bennett v. Cain, 248 N.C. 428, 103 S.E.2d 510 (1958).

Section Has No Bearing upon Whether Adopted Child Takes under Will. - The statutes relating to the right of adopted children to take as distributees and heirs have no bearing upon whether an adopted child takes under a will, except insofar as they establish and define the parent and child relationship between the adoptive parents and the adopted child. Bradford v. Johnson, 237 N.C. 572, 75 S.E.2d 632 (1953).

Biological Parent Need Not Join in Spouse's Petition for Adoption of Children. - Subsection (e) of this section and G.S. 48-7(d) were enacted, not to retain adopted children's status as "lineal descendants" by the former marriage, but instead to provide that the parent-child relationship between adopted children and their biological parent is not severed by the parent's spouse's adoption of her children from a former marriage. Since the relationship remains intact in this limited situation, it is not necessary for such a biological parent to become a co-petitioner in her husband's adoption of her legitimate children of a former marriage. This biological parent, however, must consent to the adoption, as must any biological parent who does not come within the ambit of G.S. 48-6. In re Estate of Edwards, 316 N.C. 698, 343 S.E.2d 913, rehearing denied, 317 N.C. 704, 347 S.E.2d 40 (1986).

Wife's failure to "join" in her husband's petition for the adoption of her two minor children by a previous marriage in no way affected her relationship with the children and was immaterial to a determination of her husband's distributive share under former G.S. 30-3(b). In re Estate of Edwards, 316 N.C. 698, 343 S.E.2d 913, rehearing denied, 317 N.C. 704, 347 S.E.2d 40 (1986).

Cited in Crumpton v. Mitchell, 303 N.C. 657, 281 S.E.2d 1 (1981); Jenkins v. Wheeler, 69 N.C. App. 140, 316 S.E.2d 354 (1984); Ladd v. Estate of Kellenberger, 314 N.C. App. 477, 334 S.E.2d 751 (1985).

CASE NOTES

Right to Inherit by, through and from Parents. - A legitimated child shall have the same right to inherit by, through, and from his father and mother as if such child had been born in lawful wedlock. Greenlee v. Quinn, 255 N.C. 601, 122 S.E.2d 409 (1961).

Right to Inherit from Collaterals. - The legislature intended to confer upon the legitimated child the same right to inherit from collateral relations as it would have had had it been born in lawful wedlock. Greenlee v. Quinn, 255 N.C. 601, 122 S.E.2d 409 (1961).

Cited in Hayes v. Dixon, 83 N.C. App. 52, 348 S.E.2d 609 (1986).

CASE NOTES

Statute Does Not Violate Equal Protection or Due Process Clauses. - This section and the statutes in pari materia are substantially related to the lawful State interests. They are intended to promote, and are not in violation of the equal protection and due process clauses. Mitchell v. Freuler, 297 N.C. 206, 254 S.E.2d 762 (1979); Herndon v. Robinson, 57 N.C. App. 318, 291 S.E.2d 305, appeal dismissed and cert. denied, 306 N.C. 557, 294 S.E.2d 223 (1982).

This section and G.S. 49-10 through 49-12 and G.S. 49-14 through 49-16, construed together, do not violate the equal protection clause of the United States Constitution. Mitchell v. Freuler, 297 N.C. 206, 254 S.E.2d 762 (1979).

The statutory scheme established by this section and the other statutes referred to herein (G.S. 49-14 through 49-16 and former G.S. 52-6(c)) does not discriminate against illegitimate children in such manner as to violate the Equal Protection Clause of U.S. Const., Amend. XIV. Outlaw v. Planters Nat'l Bank & Trust Co., 41 N.C. App. 571, 255 S.E.2d 189 (1979).

G.S. 29-19(b)(2) did not violate equal protection as applied to a deceased father's illegitimate putative child because the statute furthered the state's legitimate permissive interest in the just and orderly disposition of property at death. In re Estate of Williams, 246 N.C. App. 76, 783 S.E.2d 253 (2016).

In General. - Illegitimate children may inherit from their putative fathers if they have been legitimated by one of the methods established in G.S. 49-10 through 49-14, or if paternity has been established in an action for criminal nonsupport. Helms v. Young-Woodard, 104 N.C. App. 746, 411 S.E.2d 184 (1991), cert. denied, 331 N.C. 117, 414 S.E.2d 756, 506 U.S. 829, 113 S. Ct. 91, 121 L. Ed. 2d 53 (1992).

Subdivision (b)(1) is constitutional on its face. Estate of Lucas v. Jarrett, 55 N.C. App. 185, 284 S.E.2d 711 (1981).

Application of subdivision (b)(1) to decedent's estate was not unconstitutional on grounds that decedent was not represented by counsel when he was adjudged the father of plaintiff's illegitimate children. Estate of Lucas v. Jarrett, 55 N.C. App. 185, 284 S.E.2d 711 (1981).

Different Treatment of Mother and Father Not Unconstitutional. - While this section classifies the illegitimate's mother and her heirs and the putative father and his heirs differently by placing the additional requirement on the father to establish his paternity by one of the statutorily prescribed methods before he is permitted to inherit, this classification is substantially related to permissible State interests. This section does not violate the equal protection clause of U.S. Const., Amend. XIV in this regard. Estate of Stern v. Stern, 66 N.C. App. 507, 311 S.E.2d 909 (1984), appeal dismissed, 471 U.S. 1011, 105 S. Ct. 2010, 85 L. Ed. 2d 294 (1985).

Interest of State in Inheritance Rights of Illegitimate Children. - By specifying the manner and time in which an illegitimate may establish his paternity, this State has sought (1) to mitigate the hardships created by former law (which permitted illegitimates to inherit only from the mother and from each other); (2) to equalize insofar as practical the inheritance rights of legitimate and illegitimate children; and, (3) at the same time to safeguard the just and orderly disposition of a decedent's property and the dependability of titles passing under intestate laws. Mitchell v. Freuler, 297 N.C. 206, 254 S.E.2d 762 (1979).

This section and the other statutes referred to herein (G.S. 49-14 through 49-16), insofar as they provide that an illegitimate child may inherit from its father only if paternity has been acknowledged in writing or finally adjudged in the lifetime of the father and otherwise in accord with those applicable statutes, establish a statutory scheme which bears an evident and substantial relation to the permissible and important interest of the State in providing for the just and orderly disposition of property at death. Outlaw v. Planters Nat'l Bank & Trust Co., 41 N.C. App. 571, 255 S.E.2d 189 (1979).

Interest of State in Inheritance by Father from Illegitimate Child. - The requirement imposed on the father of an illegitimate who would inherit from his illegitimate child is substantially related to the important State interests that this section is intended to promote. Estate of Stern v. Stern, 66 N.C. App. 507, 311 S.E.2d 909 (1984).

Birth certification amendment application form did not meet requirements of subsection (b) where it contained no statement by the putative father or anyone else that he was the father of the child, and even if his signature in the blank space involved could be construed to be an unambiguous acknowledgment of paternity, he did not swear to it before any official authorized to administer oaths. In re Will of Bunch, 86 N.C. App. 463, 358 S.E.2d 118 (1987).

The term "lineal descendants" is defined at G.S. 29-2(4) as "all children of such person"; this would include even illegitimate children of a deceased female, under subsection (a) of this section, and clearly includes adopted children, pursuant to G.S. 29-17. In re Estate of Edwards, 77 N.C. App. 302, 335 S.E.2d 39 (1985), aff'd, 316 N.C. 698, 343 S.E.2d 913 (1986).

Right to Inherit Established upon Adjudication of Paternity. - Once plaintiffs satisfied the notice requirement of this section, and showed that decedent had been adjudged their father under G.S. 49-1 through 49-9, their right to inherit was established as a matter of law; it did not depend upon a declaration in a court order or judgment. Estate of Lucas v. Jarrett, 55 N.C. App. 185, 284 S.E.2d 711 (1981).

A putative father and his kindred are only entitled to inherit from an illegitimate child if paternity has been established by one of the methods prescribed in G.S. 29-19(b). In re Estate of Morris, 123 N.C. App. 264, 472 S.E.2d 786 (1996).

Acknowledgment Not Filed. - Where petitioner acknowledged his paternity before a notary public and executed the "Affidavit Of Parentage For Child Born Out Of Wedlock" but never filed the acknowledgment with the clerk of court, he did not fulfill all the requirements under G.S. 29-19(b). In re Estate of Morris, 123 N.C. App. 264, 472 S.E.2d 786 (1996).

Putative child was not the child's putative father's heir because strict compliance, not substantial compliance, with the procedures in G.S. 29-19(b)(2) was required to establish an illegitimate child as a legal heir, and the statute was not strictly complied with when the father's affidavit of paternity was not filed with the clerk. In re Estate of Williams, 246 N.C. App. 76, 783 S.E.2d 253 (2016).

Compliance with Section Essential. - Where there has been no compliance with this section, illegitimate child has no right to inherit from deceased putative father. Hayes v. Dixon, 83 N.C. App. 52, 348 S.E.2d 609 (1986), cert. denied and appeal dismissed, 319 N.C. 224, 353 S.E.2d 402, cert. denied, 484 U.S. 824, 108 S. Ct. 88, 98 L. Ed. 2d 50 (1987).

Illegitimate child's complaint seeking a declaration that she was the sole heir of a decedent was properly dismissed where the complaint did not claim that the decedent was adjudged to be the child's father, or that the decedent had acknowledged himself to be the child's father in a written instrument which was duly executed and filed; absent G.S. 29-19(b), an illegitimate child had no right to inherit from his or her putative father, and, although a deoxyribonucleic acid (DNA) test had established that the decedent was the child's biological father, a positive DNA test was not listed in the statute as a method of meeting the requirements to legitimate a child. Phillips v. Ledford, 162 N.C. App. 150, 590 S.E.2d 280, cert. denied, appeal dismissed, 358 N.C. 377, 597 S.E.2d 133 (2004).

Clerk of court did not err in finding that claimants failed to show compliance with any of the four forms of legitimation necessary for illegitimate children to inherit from or through their putative fathers because they did not fulfill the statutory requirements for establishing legitimation under G.S. 29-19(b); four legitimation methods available in North Carolina were a verified petition filed with a court, the marriage of the mother and putative father, a civil action to establish paternity, or an action for criminal nonsupport. In re Williams, 208 N.C. App. 148, 701 S.E.2d 399 (2010).

Plea of Guilty in Bastardy Action as Basis for Inheritance by Child. - An illegitimate child may inherit, through intestate succession, from the estate of a father who acknowledged paternity to the child by pleading guilty in a criminal bastardy action. Sanders v. Brantley, 71 N.C. App. 797, 323 S.E.2d 426 (1984).

Notice under Subsection (b) as Condition Precedent. - The requirement of subsection (b) that illegitimate children give written notice of their claims of inheritance to the personal representatives of their putative fathers' estates within six months after the first publication or posting of general notice to creditors is a condition precedent to an illegitimate child's right to receive a distribution from the estate of a father who meets the description in subdivision (1) or (2) of subsection (b). Estate of Lucas v. Jarrett, 55 N.C. App. 185, 284 S.E.2d 711 (1981).

Form of Notice. - Subsection (b) does not specify any particular form the notice required of illegitimate children must take. Estate of Lucas v. Jarrett, 55 N.C. App. 185, 284 S.E.2d 711 (1981).

Plaintiffs' verified complaint seeking revocation of defendant's letters, which fully alleged the basis of their claim of entitlement to inherit from decedent and was received by defendant, as personal representative of the estate, within the statutory period for notice, satisfied the notice requirement of subsection (b) of this section. Estate of Lucas v. Jarrett, 55 N.C. App. 185, 284 S.E.2d 711 (1981).

The formalities of subdivision (b)(2) of this section serve a dual purpose. - As a method for establishing paternity, a written instrument acknowledging paternity, executed and filed with the clerk of superior court, assures the requisite degree of certainty. The formalities further assure that the decedent intended that the illegitimate child share in his estate, much in the same way that a father intentionally excludes legitimate children as beneficiaries under his will. Herndon v. Robinson, 57 N.C. App. 318, 291 S.E.2d 305, appeal dismissed and cert. denied, 306 N.C. 557, 294 S.E.2d 223 (1982).

Documents Inadequate under Subdivision (b)(2). - Plaintiff's proof of numerous written documents, signed by his putative father, which clearly acknowledged paternity, did not rise to the dignity of constructive compliance with subdivision (b)(2) of this section, where the documents were offered for purposes other than to establish paternity as contemplated under subdivision (b)(2). Herndon v. Robinson, 57 N.C. App. 318, 291 S.E.2d 305, appeal dismissed and cert. denied, 306 N.C. 557, 294 S.E.2d 223 (1982).

Voluntary Support Agreement Used to Establish Right to Inherit. - G.S. 110-132 does not imply that voluntary support agreements are strictly limited such that they may have no legal implications other than that of child support; it acknowledges that voluntary support agreements, when properly acknowledged and approved by a trial court, have the same force and effect as a trial court's order of support. Accordingly, a voluntary support agreement could be used to establish that an out-of-wedlock child was entitled to inherit under G.S. 29-19(b). In re Estate of Potts, 186 N.C. App. 460, 651 S.E.2d 297 (2007).

Decedent's out-of-wedlock child was entitled to inherit under G.S. 29-19(b)(2). The decedent had acknowledged in a voluntary support agreement that he was the child's father; the agreement was executed by a notary, who was a certifying officer; and it was filed during both the decedent's and the child's lifetimes with the clerk of superior court in the decedent's county. In re Estate of Potts, 186 N.C. App. 460, 651 S.E.2d 297 (2007).

Action by Father Required to Include Illegitimate Child. - Just as a father must act to exclude a legitimate child from sharing in his estate, he must also act to include an illegitimate child. The distinction is an important one. Herndon v. Robinson, 57 N.C. App. 318, 291 S.E.2d 305, appeal dismissed and cert. denied, 306 N.C. 557, 294 S.E.2d 223 (1982).

Applicability of Subsection (d). - Subsection (d) of this section is clear in its meaning and applies only when the child is taking under a will from the putative father and not when the putative father or his heirs are attempting to inherit from the child under the intestacy statutes. Estate of Stern v. Stern, 66 N.C. App. 507, 311 S.E.2d 909 (1984).

No Inheritance from Father Prior to 1973 Amendment. - See Jolly v. Queen, 264 N.C. 711, 142 S.E.2d 592 (1965).

This section confers upon illegitimate children same rights enjoyed by legitimate children under laws of intestate succession once there is proper adjudication or acknowledgment of paternity. Notification of the personal representative within six months of published notice to creditors does not establish or define the illegitimate child's right, but merely sets a time limitation for an illegitimate child to seek its enforcement. Jefferys v. Tolin, 90 N.C. App. 233, 368 S.E.2d 201 (1988).

Subsection (b) is Statute of Limitation. - The six-month limitation period in subsection (b), relating to notice of the claim of an illegitimate child to take from father's estate, is a statute of limitation which is subject to being tolled under the provisions of G.S. 1-17. Jefferys v. Tolin, 90 N.C. App. 233, 368 S.E.2d 201 (1988).

Father's Right to Inherit from Illegitimate Child Established. - Because a father acknowledged himself to be his daughter's father in a parenting agreement filed in the county where the mother and daughter were residents and because the agreement was acknowledged by all parties and approved by a district court judge, the requirements of G.S. 29-19 were followed and the father was an heir of the daughter's estate. In re Estate of Mangum, 212 N.C. App. 211, 713 S.E.2d 18 (2011).

Paternity Established. - By presenting a DNA test, plaintiff established the decedent's paternity at a probability of 99.99%. Because there was no evidence in the record contradicting the evidence offered by plaintiff, the trial court did not err in granting summary judgment on plaintiff's paternity claim. Swint v. Doe, 265 N.C. App. 104, 827 S.E.2d 309 (2019).

Former Law. - See Flintham v. Holder, 16 N.C. 345 (1829); Fairly v. Priest, 56 N.C. 383 (1857); McBryde v. Patterson, 78 N.C. 412 (1878); Bettis v. Avery, 140 N.C. 184, 52 S.E. 584 (1905); Ashe v. Camp Mfg. Co., 154 N.C. 241, 70 S.E. 295 (1911); Brown v. Brown, 168 N.C. 4, 84 S.E. 25 (1915); Wilson v. Wilson, 189 N.C. 85, 126 S.E. 181 (1925); Bryant v. Bryant, 190 N.C. 372, 130 S.E. 21 (1925); Battle v. Shore, 197 N.C. 449, 149 S.E. 590 (1929); Paul v. Willoughby, 204 N.C. 595, 169 S.E. 226 (1933); Brown v. Holland, 221 N.C. 135, 19 S.E.2d 255 (1942); Board of Educ. v. Johnston, 224 N.C. 86, 29 S.E.2d 126 (1944).

Applied in Poteat v. Robinson, 90 N.C. App. 764, 370 S.E.2d 61 (1988).

Cited in Settle ex rel. Sullivan v. Beasley, 309 N.C. 616, 308 S.E.2d 288 (1983); Brimley v. Logging, 93 N.C. App. 467, 378 S.E.2d 52 (1989); Rosero v. Blake, 357 N.C. 193, 581 S.E.2d 41 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1407, 158 L. Ed. 2d 78 (2004).

CASE NOTES

Words Describing Relationships Bear Ordinary Meanings. - In carefully naming the persons who take in cases of intestacy using words describing family relationships such as "parents," "brothers," "sisters," "grandparents," "aunts" and "uncles," the legislature intended that these words bear their ordinary and usual meaning. Newlin v. Gill, 293 N.C. 348, 237 S.E.2d 819 (1977).

Words Cannot Be Expanded. - The words "brother," "parent" and "grandparent" cannot be expanded to include other relationships such as "great-grandfather" or "great uncle." Therefore, the maxim, "Expressio unius est exclusio alterius" (the expression of one thing is the exclusion of another) tends to exclude collateral kin who are not in the parentela of the intestate's parents or grandparents. Newlin v. Gill, 293 N.C. 348, 237 S.E.2d 819 (1977).

Cited in Heller v. Heller, 7 N.C. App. 120, 171 S.E.2d 335 (1969).

CASE NOTES

Words Describing Relationships Bear Ordinary Meanings. - In carefully naming the persons who take in cases of intestacy using words describing family relationships such as "parents," "brothers," "sisters," "grandparents," "aunts" and "uncles," the legislature intended that these words bear their ordinary and usual meaning. Newlin v. Gill, 293 N.C. 348, 237 S.E.2d 819 (1977).

Words Cannot Be Expanded. - The words "brother," "parent" and "grandparent" cannot be expanded to include other relationships such as "great-grandfather" or "great uncle." Therefore, the maxim, "Expressio unius est exclusio alterius" (the expression of one thing is the exclusion of another) tends to exclude collateral kin who are not in the parentela of the intestate's parents or grandparents. Newlin v. Gill, 293 N.C. 348, 237 S.E.2d 819 (1977).

CASE NOTES

Editor's Note. - The cases below were decided under prior law.

A child must account for advancements in order to share by inheritance or by distribution in the real estate and personal property owned by the parent at death, and therefore it must be ascertained that the parent left property before the question of advancements can arise. Atkinson v. Bennett, 242 N.C. 456, 88 S.E.2d 76 (1955).

Decisions under Former Law as to Advancements. - See Stallings v. Stallings, 16 N.C. 298 (1829); Brown v. Brown, 37 N.C. 309 (1842); Lamb v. Carroll, 28 N.C. 4 (1845); Meadows v. Meadows, 33 N.C. 148 (1850); Headen v. Headen, 42 N.C. 159 (1850); Daves v. Haywood, 54 N.C. 253 (1854); Skinner v. Wynne, 55 N.C. 41 (1854); Shiver v. Brock, 55 N.C. 137 (1855); Ward v. Riddick, 57 N.C. 22 (1858); Jerkins v. Mitchell, 57 N.C. 207 (1858); Dixon v. Coward, 57 N.C. 354 (1859); Hollister v. Attmore, 58 N.C. 373 (1860); Bradsher v. Cannady, 76 N.C. 445 (1877); Melvin v. Bullard, 82 N.C. 34 (1880); Harper v. Harper, 92 N.C. 300 (1885); Eller v. Lillard, 107 N.C. 486, 12 S.E. 462 (1890); Kiger v. Terry, 119 N.C. 456, 26 S.E. 38 (1896); Ex parte Griffin, 142 N.C. 116, 54 S.E. 1007 (1906); Thompson v. Smith, 160 N.C. 256, 75 S.E. 1010 (1912); Nobles v. Davenport, 183 N.C. 207, 111 S.E. 180 (1922); Southern Distrib. Co. v. Carraway, 189 N.C. 420, 127 S.E. 427 (1925); Paschal v. Paschal, 197 N.C. 40, 147 S.E. 680 (1929); Prevette v. Prevette, 203 N.C. 89, 164 S.E. 623 (1932); Wolfe v. Galloway, 211 N.C. 361, 190 S.E. 213 (1937); Parker v. Eason, 213 N.C. 115, 195 S.E. 360 (1938); Harrelson v. Gooden, 229 N.C. 654, 50 S.E.2d 901 (1948).

Applied in Thompson v. Soles, 299 N.C. 484, 263 S.E.2d 599 (1980).

CASE NOTES

Editor's Note. - The case below was decided under prior law.

Right to Change Advancement into Gift. - While a parent cannot change into an advancement that which was intended as a gift at the time of delivery, there is no apparent reason why a parent cannot by deed change into a gift that which was at the time of delivery intended as an advancement. Atkinson v. Bennett, 242 N.C. 456, 88 S.E.2d 76 (1955).

Effect of Previous Advancement on Conveyance by Deed. - Where more than a year after an alleged advancement, the parent executes a deed conveying all of her property in equal division between two of the children, without providing for advancements previously made, the asserted advancement to one of them should not be taken into account in the division of the property conveyed by the deed. Atkinson v. Bennett, 242 N.C. 456, 88 S.E.2d 76 (1955).

Applied in Lassiter v. Lassiter, 15 N.C. App. 588, 190 S.E.2d 283 (1972).

CASE NOTES

Purpose. - The proviso to former Rule 2 of old G.S. 29-1 was enacted to establish a perfect equality in the division of the intestate's whole estate, real and personal, amongst an intestate's children, excepting only, that no property given by a parent to a child is in any case to be taken away. King v. Neese, 233 N.C. 132, 63 S.E.2d 123 (1951). See Atkinson v. Bennett, 242 N.C. 456, 88 S.E.2d 76 (1955).

CASE NOTES

• I. General Consideration.
• II. Pending Litigation.