Plaintiff asserts that the provisions of G.S. 30-3 (b) should be declared illegal and unconstitutional. This statute provides in substance that whenever a second or successive spouse dissents from the will of his or her deceased spouse, he or she shall take one-hаlf of the amount provided by the Intestate Succession Act for the surviving spouse if the testator has surviving him a lineal descendant by a former marriage but there is no surviving lineal descendant by the second or successive marriage. Plaintiff contends that the statutе sets up a category or classification which is illegal and unconstitutional.
The constitutionality of a statute is presumed, and the courts must hold a statute constitutional unless it is in conflict with some constitutional provision.
State v. Hales,
The function of a court is to deсlare what the law is and it is not concerned with what the law ought to be.
State v. Ballance,
What the Legislature is not forbidden to do by the Constitution, it should not bе prevented from doing by the courts.
Manning v. Sims,
Unless a statute is plainly obnoxious to some constitutional provision, a court will not ordinаrily substitute its judgment for that of the Legislature.
Chattanooga v. Fanburg,
Statutes must be upheld unless their unconstitutionality clearly, positively, and unmistakably appeаrs; a mere doubt does not afford sufficient reason for a judicial declaration of invalidity.
Smith v. Peterson,
Although there is some authority that the succession to intestate property is a natural or inherent right which, although it may be regulated within reasonable limits, cannot be taken away or substantially impaired, it is generally held that there is no such natural right and that such succession is at the will of and subjеct to the sovereign political power of the state. The theory of the law is that *351 any participation in the estate of a deceased person is by grace of the sovereign political power, which alone has any natural or inherent right to succeed to such property. 23 Am. Jur. 2d, Descent and Distribution, § 11, p. 758.
The Supreme Court of North Carolina has consistently followed the general rule above stated. In
Pullen v. Commissioners,
“* * * Property itself, as well as the succession of it, is the creature of positive law. The legislative power declares what objects in nature may be held as property; it provides by what forms and оn what conditions it may be transmitted from one person to another; it confines the right of inheriting to certain persons whom it definеs heirs; and on the failure of such it takes the property to the State as an escheat.
The right to give or take property is not one of those natural and inalienable rights which are supposed to precede all government, and which no government can rightfully impair. There was a time, at least as to gift by will, it did not exist; and there may be a time again when it will seem wise and еxpedient to deny it. These are the uncontested powers of the Legislature upon which no article of the Constitution hаs laid its hands to impair them. * #
In their brief, plaintiff’s counsel contend that the challenged statute is an arbitrary, unjust, unreasonable and illеgal discrimination in violation of the Fourteenth Amendment of the Federal. Constitution and of section 17 of Article I of the Constitution of North Carolina. In
Motley v. Board of Barber Examiners,
“Thesе provisions of the Constitution are not so naive as not to contemplate the classifications and distinctions which ordеrly government is required to make with respect to the subjects of its control. ‘Discrimination’ does not ordinarily connote unfairness nor can it be used as a label to disqualify and condemn a statute as ‘class legislation.’ It is only when the classification, or thе distinction, is arbitrary and unjustifiable upon any reasonable view that it becomes invidious and offensive to the Constitution, so that the Cоurt may undertake to exercise the extraordinary power it possesses to declare the statute void. The Un *352 constitutionality must clearly appear before the Court can so declare it. Brumley v. Baxter,225 N.C. 691 ,36 S.E. (2d), 281 ; S. v. Brockwell, 209 N.C., 209,183 S.E., 378 .”
More recently, in
Board of Managers v. Wilmington,
Of like effect have been decisions of the Supreme Court of the United Stаtes as indicated in
McGowan v. Maryland,
“1. While no precise formula has beеn developed, the Fourteenth Amendment permits the states a wide scope of discretion in enacting laws which affeсt some groups of citizens differently than others; the constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the state’s objective.
2. State legislatures are presumed to have acted within their constitutional power despite the fact that in practice their laws result in some inequality.
3. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.”
In applying the principles of law hereinbefore stated to the question now before us, we point out first that the challenged statute has no application in cases of intestacy; it is only when a spouse dies testate that the statute may become applicable.
That being true, thе real effect of the statute is to allow a spouse, who leaves a child or other lineal descendant by a prеvious marriage but none by the spouse who survives him, more testamentary freedom than he would have otherwise. It is not for us to “second guess" the General Assembly on the wisdom of this distinction, but we believe the statute was enacted in good faith and it creates a classification based upon real distinctions which are not unreasonable.
Plaintiff argues that the statute has resulted in a hardship to her, but many examples of hardship could be cited if the statute did not exist.
We hold that G.S. 30-3 (b) does not create a classification or distinction that is arbitrary and unjustifiable so as to be offensive to our Federal or State Constitutions.
*353 Plaintiff’s assignments of error to the judgment of the superior court are overruled, and said judgment is
Affirmed.