1. Wills--right of dissent--subject matter jurisdiction--declaratory judgment action
improper
Although plaintiffs contend they have standing to contest defendant-wife's right of dissent
from her deceased husband's will in this action, the trial court did not err by granting summary
judgment in favor of defendant in a declaratory judgment action, because the trial court did not
have subject matter jurisdiction over the issues involved based on the facts that: (1) an action
contesting a surviving spouse's right of dissent under N.C.G.S. § 30-1 entails something entirely
different from the construction of a will in a declaratory judgment action under N.C.G.S. § 1-254
since the dissent action involves valuation of the entire estate and the declaratory judgment action
involves valuation of the testamentary estate; and (2) plaintiffs contest defendant's right of dissent
from the will based on valuations, rather than an agreement reached through collusion or fraud.
2. Jurisdiction--subject matter--wills--right of dissent
Even if defendant agreed or even urged plaintiffs to institute a declaratory judgment action
to determine whether defendant-wife is entitled to dissent from her deceased husband's will,
jurisdiction of the court over the subject matter of the action is the most critical aspect of the
court's authority to act and cannot be waived.
Bryant, Patterson, Covington & Idol, P.A., by David O. Lewis,
for the plaintiff-appellants.
Newsom, Graham, Hedrick & Kennon, P.A., by Josiah S. Murray
III and J. Alan Campbell, for the defendant-appellee.
LEWIS, Judge.
Plaintiffs instituted a declaratory judgment action to
determine whether defendant Suzanne E. Day is entitled to dissent
from her deceased husband's will. Plaintiffs are the nieces and
nephew of the decedent. The trial court granted summary judgmentin favor of defendants Day and Wachovia; however, plaintiffs filed
notice of appeal only with respect to defendant Day. As such, weaddress the issues on appeal only as they relate to defendant Day.
[1]Plaintiffs first argue they have standing to contest Day's
right of dissent in this action, and as such, the trial court
should not have granted summary judgment in favor of defendant Day.
Plaintiffs contend that when N.C. Gen. Stat. § 30-1 is read in pari
materia with certain provisions of the Declaratory Judgment Act,
including N.C. Gen. Stat. § 1-254, they have standing to contest
Day's right of dissent by means of a declaratory judgment action.
Although we disagree, the problem relates not to a lack of
standing, but to a lack of subject matter jurisdiction.
G.S. 30-1 sets forth the requirements for establishing a
surviving spouse's right of dissent. The valuations relevant to
determining whether a right of dissent exists, including the estate
of the deceased spouse and the property passing outside of the will
to the surviving spouse, may be established by agreement of the
executor and surviving spouse and upon approval of the clerk ofsuperior court. N.C. Gen. Stat. § 30-1(c) (1999). G.S. 1-254,
which governs the courts' authority to construe instruments,
provides that "[a]ny person interested under a . . . will . . . may
have determined any question of construction or validity arising
under the instrument . . . and obtain a declaration of rights,
status or any other legal relations thereunder." (Emphasis added). It is well-settled that "[s]tatutes d
ealing with the same
subject matter must be construed in pari materia and harmonized, if
possible, to give effect to each." Bd. of Adjmt. of the Town of
Swansboro v. Town of Swansboro, 334 N.C. 421, 427, 432 S.E.2d 310,
313 (1993). We conclude the two statutes cited by plaintiffs do
not deal with the same subject matter. It is clear that G.S. 30-
1(c) specifically governs the determination of a surviving spouse's
right of dissent, including both valuation and the ultimatedetermination of whether a right of dissent is established as a
result of the relevant valuations. G.S. 1-254, however, allows
questions as to the construction of a will to be brought in a
declaratory judgment action. Rogel v. Johnson, 114 N.C. App. 239,
242, 441 S.E.2d 558, 560 (1994). "The Declaratory Judgment Act .
. . is designed to provide an expeditious method of procuring a
judicial decree construing wills, contracts, and other written
instruments and declaring the rights and liabilities of parties
thereunder." Farthing v. Farthing, 235 N.C. 634, 635, 70 S.E.2d
664, 665 (1952).
An action contesting a surviving spouse's right of dissent
entails something entirely different from the construction of a
will. In fact, as its name connotes, dissent does not even involve
application of the will -- it involves a spouse's outright refusal
to collect under the will. Although both actions in part involve
estate valuations (the dissent action involving valuation of the
entire estate and the declaratory judgment action involving
valuation of the testamentary estate), the actions are still
fundamentally different in nature. As such, we conclude that G.S.
30-1(c) and G.S. 1-254 govern mutually exclusive subject matter, so
that each must be construed separately.
Because G.S. 1-254 does not encompass actions to contest a
surviving spouse's right of dissent, we conclude the superior court
did not have subject matter jurisdiction over the issues involved
in this case. In its declaratory judgment action, plaintiffs
sought something entirely different from the court thanconstruction of a will. In their complaint, plaintiffs contest
defendant Day's right of dissent from the will based on valuations.
Resolution of this issue has nothing to do with construction of the
will instrument; the provisions of G.S. 1-254 do not confer subject
matter jurisdiction for plaintiffs' action.
It is important to note that plaintiffs' action contests only
the valuations relevant to defendant Day's right of dissent. A
different analysis may have resulted if plaintiffs had alleged that
the agreement in this case was reached through collusion or fraud.
While our courts have indicated that "[a]bsent a showing that the
parties have failed to act in an arm's length manner . . . the
clerk ought to abide by this agreement," Taylor v. Taylor, 301 N.C.
357, 363, 271 S.E.2d 506, 510-11 (1980), they have not addressed
what action is appropriate when persons other than the parties to
the agreement make such a challenge. As plaintiffs have made no
contention regarding collusion or fraud, the issue is not before us
and we have not addressed it.
[2]Plaintiffs also contend that because defendant Day and her
attorney, through conversations and correspondence, previously
agreed that plaintiffs have standing to bring a declaratory
judgment action, defendant Day waived her right to assert standing
as a defense in this case. We have already concluded that the
issue in this case was not one of standing, but of subject matter
jurisdiction. Hence, even if defendant Day agreed or even urged
plaintiffs to institute a declaratory judgment action, jurisdiction
of the court over the subject matter of the action is the mostcritical aspect of the court's authority to act and cannot be
waived. W. Brian Howell, Shuford North Carolina Civil Practice and
Procedure § 12-4 (5th ed. 1998). Furthermore, it was certainly not
Day's position to advise plaintiffs on their options for contesting
her right of dissent.
Because the superior court had no subject matter jurisdiction
over the issues involved in this case, we conclude the trial court
properly granted summary judgment in favor of defendants.
Given our disposition as to the first issue, we need not
consider plaintiff's contentions regarding valuation of the testate
and intestate shares.
Affirmed.
Judges MARTIN and WALKER concur.
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