Newspapers / North Carolina Federation of … / March 1, 1959, edition 1 / Page 8
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Page 8 THE FEDERATION JOURNAL Spring, 1959 Where There's a Will—There's a Better Way Married Man with No Children or Other Descendants REAL ESTATE to Wife for Ufa OTHER PROPERTY i$10.0OO (before Federal Estate Taxes VtoWidowJ of Remainder (less all Federal Estate Taxes) to Parents or Surviving Parent Married Woman with Children or Other Descendants REAL ESTATE OTHER PROPERTY Husband for Life, then to Children. Equaily Divided Among Husband and Chiidren Widow or Widower with Children or Other Descendants REAL ESTATE OTHER PROPERTY Divided Among Children. Equally Divided Among Children Reprinted by courtesy of the Winston-Salem Journal-Sentinel, Winston-Salem, N. C. By CHESTER S. DAVIS That humming sound, like the distant drone of ghostly bees, that you hear is caused by past genera tions of Tar Heels spinning in their graves. They didn’t take it with them but, oh my, how they wish they had! In this state most men and wom en die without writing a will. Their property, therefore, is distributed according to what are nicely de scribed as common law rules. In North Carolina those rules are much more common than most. in nine out of tea states a man who dies intestate (without a will) can go to his Maker comforted by the thought that his property will be distributed among those per sons nearest to him and most de pendent upon him. But any North Carolinian who carried that warm ing thought beyond the Pearly Gates is destined to sit on a cloud plucking nothing but sour notes on his harp while, in angelic dismay, he observes the fruits of a life time’s labor going in every direc tion but the one he intended. North Carolina is one of the very few states which continue to ob serve the ancient distinctions be tween real and personal property. The results are fascinating in a ghastly sort of way. Suppose, for example, that Hus band dies without a will, leaving a $15,000 home and enough person al property to pay his debts. He is survived by Wife, by a brother named Ichabod and by his parents. Under our present law, title to the home will go to Ichabod. All Wife gets is a life interest in one-third of that home. The parents get no thing. If, however. Husband had died leaving only $15,000 in personal property the distribution would be quite different. Here Wife would get the first $10,000 and the re mainder—$5,000 in our example— would be shared between Wife, who would get half, and Husband’s parents. Here Ichabod gets no thing. The results are just as strange if you reverse the example and Married Woman with No Children or Other Descendants REAL ESTATE OTHER PROPERTV ,. Outright to Husband. Married Man with Children or Other Descendants REAL ESTATE OTHER PROPERTY Children Equally Divided tQ ' [for I have Wife die without a wiU. Sup pose Wife leaves a $20,000 home and she is survived by Husband, and by two nephews of her dead sister, Mary. Here title to the home goes to the nephews. Husband gets a life in terest in that home providing he and wife had had children. If there had been no children, born alive. Husband would take nothing. In the case of personal property. Husband fares better than Wife. If he dies without a will and is survived only by Wife and by his parents, she takes the first $10,000 in personal property and shares all above that amount with Husband’s parents. If, however. Wife dies childless and without a wiU, Hus band takes all of her personal property. Neither husband nor wife fare particularly well when there are surviving children. Suppose Hus band dies without a will and leaves $50,000 in stocks, bonds and insur ance. He is survived by wife, aged 75, and by nine grown children. Here Wife shares equally with the children, taking only $5,000. Al though her needs are greater, our law gives her only a child’s share in personal property. In North Carolina, a husband or wife never can inherit real proper ty directly from one another in the absence of a will, except in those relatively rare cases where there are no other heirs to make a claim. Men and women who, during their lifetime, watched every dime’s worth of their property with the eyes of a hawk are content to go to their grave trusting that the law will distribute their property in a sensible manner. But North Carolina’s intestacy law will never do that until it is rewritten to meet the needs of this day. Our intestacy law was written in its present fonn in 1808. For the past century and a half it has re mained essentially as it was writ ten. There were a few amendments but they were of relatively minor importance. In 1935 the General Assembly ap pointed necessary changes in the state’s “outmoded” and “needless ly complicated” intestacy laws. Headed by Senator Carl T. Bailey of Plymouth, the commission undertook a four-year study of existing laws. In 1939 the commis sion concluded that “North Caro lina needs an entirely new and modern intestacy law.” The Bailey Commission present ed the legislators with a proposed was 165 pages long. Horrified at the prospect of even being required to read such a lengthy document, the General Assembly at first pi geonholed the recommendations made by the Bailey Commission and then forgot them. But some of the members of that Commission — men like Wil liam E. Church, Forsyth County’s able clerk of court, Fred McCall of the University of North Carolina, and Dr. Malcomb McDermott of Duke University—continued to agi tate for an intestacy law which was, at the very least, in step with the social needs of the 20th cen tury. In 1945, the General Assembly created the General Statutes Com mission and gave that commission the interesting assignment of studying North Carolina’s substan tive law with an eye on locating areas of the law which could profit ably be revised and modernized. Soon after the commission’s cre ation, Professor McDermott but ton-holed Robert F. Moseley, chair man of the General Statutes Com mission, and toid Mr. Moseley that of all the state’s laws none were so desperately in need of revision as the antiquated rules governing in testate succession. In 1957, the General Statutes Commission was given $5,000 by the General Assembly to finance a study of the state’s intestacy laws. The actual study was done by Nor man Wiggins of the Wake Forest Law School, Bryan Molich of the Duke Law School and Fred B. Mc Call of the University of North Carolina Law School. All three men were keenly aware of the defects of the existing law. Professor Wiggins, while at Co lumbia University, used North Carolina’s intestacy law as the springboard for his Master’s thesis. Each of these men had studied the proposals made by the Bailey Com mission in 1939. In fact, McCall was one of the chief draftsmen of the original Bailey report. For the past year this study team has analyzed the faults of the exist ing law and made recommenda tions for their correction. The nine revision proposed by the three law professors. Out of this patient, painstaking analysis has come an entirely new intestacy law. Every provision in this new law, which will be proposed to the 1959 Gen eral Assembly, has the unanimous approval of all nine members of the General Statutes Commission. This new law, besides being writ- See THERE'S A WILL, Page 7
North Carolina Federation of Negro Women’s Clubs Journal
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March 1, 1959, edition 1
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