Barnes v. Scull

237 N.C.App. 184

765 S.E.2d 820

Carson D. BARNES and wife, Romelda E. Barnes, Plaintiffs–Appellants,

v.Judith SCULL and husband, David Scull; Benjamin E. Thompson, Jr. and wife, Sandra P. Thompson; Roger Thompson Bass and wife, Phyllis Kellar Bass; Mary Lynn Thompson Whitley and husband, William G. Whitley, III; Robin Bess Pridgen Mercer, Unmarried; Jonathan Pridgen and wife, Sharon Pridgen; and any Unknown Heirs of W. Robin Pridgen, Deceased, Defendants–Appellees.

No. COA14–264.

Court of Appeals of North Carolina.

Nov. 18, 2014.

Narron & Holford, P.A., by I. Joe Ivey, for Plaintiffs–Appellants.

Broughton Wilkins Sugg & Thompson, PLLC, by Benjamin E. Thompson, III and Blair K. Beddow, for Defendants–Appellees Scull, Thompson, Bass and Whitley.

Farris & Farris, P.A., by Robert A. Farris, Jr. and Rhyan A. Breen ; and King & King, LLP, by W. Lewis King, for Defendants–Appellees Mercer and Pridgen.

McGEE, Chief Judge.

John S. Thompson ("Testator") executed his will in 1944. Testator also executed codicils that replaced certain terms of his will. The only codicil relevant to this appeal is the third codicil that was executed in 1955 (along with Testator's will, "the will"). Pursuant to the will, Testator devised to his wife, Maude Thompson ("Maude"), a life estate in real property consisting of 146 acres ("the property"). Upon the death of Maude or Testator, whichever death occurred last, the property was to be placed in a trust ("the trust"). The proceeds of the trust were to provide support to one of Testator's sons, Hubert E. Thompson ("Hubert"), for Hubert's life. According to the will, upon Hubert's death, the property would go to Hubert's lineal descendants, if any. If Hubert died without lineal descendants, the property was to "revert to [Testator's] heirs."

Testator died in 1960, and was survived by Maude and six children: Hubert, W.C. Thompson ("W.C."), Annie T. Weigel ("Annie"), B.E. Thompson ("B.E."), J.W. Thompson ("J.W."), and James G. Thompson ("James"). Maude died in 1969, at which time the trust went into effect, with the property as the corpus, for the benefit of Hubert. Testator's descendants relevant to the resolution of this appeal are Hubert and the descendants of James.

James died in 1972. James was survived by his son, James G. Thompson, Jr. ("James Jr.") and his daughter, Marjorie T. Pridgen ("Marjorie"). James died testate, and left whatever interest he had in the property to Marjorie and her husband, W. Robin Pridgen ("Robin"), a one-half interest to each. James did not leave any interest he had in the property to James Jr. James Jr. died on 24 April 1980, approximately three months before Hubert, who died on 26 July 1980. James Jr. was survived by three sons: John S. Thompson ("John"), James Guy Thompson, III ("James III"), and Gregory A. Thompson ("Gregory"). James III purported to convey his interest in the property to Gregory by deed executed 30 January 1998. John purported to convey his interest in the property to Carson B. Barnes (together with his wife, Romelda E. Barnes, "Plaintiffs") by deed executed 2 May 2000. Gregory purported to convey his interest in the property to Carson B. Barnes by deed executed 10 May 2000.

Plaintiffs initiated this action by complaint filed 26 June 2012, and requested a declaratory judgment establishing the legitimacy of their purported interest in the property. Defendants Robin Bess Pridgen Mercer, Jonathan Pridgen and Sharon Pridgen filed their answer on 27 August 2012, contending that Plaintiffs had "received deeds from persons who had no interest in the property, [have] no claim whatsoever to any of the property and [have] no standing to bring this action." They requested that the trial court "declare the ownership of the subject property" to reflect the validity of that portion of James' will that conveyed ten percent interest in the property to Marjorie and ten percent interest to Robin, with no interest in the property having gone to James Jr.¹ Defendants Judith Scull, David Scull, Benjamin E. Thompson Jr., Sandra P. Thompson, Roger Thompson Bass and Phyllis Kellar Bass (together with Robin Bess Pridgen Mercer, Jonathan Pridgen and Sharon Pridgen, "Defendants") answered Plaintiffs' complaint on 10 September 2012. These Defendants also contended that the purported deeds from John and Gregory conveyed nothing to Plaintiffs, and requested that Plaintiffs "have and recover nothing of these answering [D]efendants[.]"

Plaintiffs moved for summary judgment on 16 September 2013. Defendants Robin Bess Pridgen Mercer, Jonathan Pridgen and Sharon Pridgen moved for summary judgment on 19 September 2013. The trial court heard this matter 30 September 2013, and ruled that Plaintiffs had no ownership interest in and to the subject property, denied Plaintiffs' motion for summary judgment, and granted the motion for summary judgment of Defendants Robin Bess Pridgen Mercer, Jonathan Pridgen and Sharon Pridgen. Plaintiffs appeal.

Plaintiffs argue that the trial court erred in granting summary judgment in favor of Defendants. We disagree.

The contested part of the will is a portion of the third codicil to the will, executed by Testator on 23 September 1955. There is no dispute concerning the validity of the third codicil itself. The relevant portion states:

At the death of my wife, I give and devise the above tract of land, containing 146 acres, more or less, to my sons, B.E. Thompson and W.C. Thompson, Trustees, not for their own use and benefit however but in trust to rent out the same or cause the same to be farmed in a husband-like manner, collect the rents, pay the taxes, keep the buildings in reasonable repair and pay the balance annually to my son, Hubert E. Thompson, for and during the term of his natural life and no longer, said trust to terminate upon the death of said Hubert E. Thompson.

At the death of my said son, Hubert E. Thompson, I give and devise the said tract of land to his lineal child or children, in fee simple, representatives of lineal deceased children to stand in the place of and take the share their parent would have taken if living. In the event that my said son shall die without leaving any lineal child or representatives of a lineal deceased child, then the said tract of land shall revert to my heirs. (Emphasis added).

Plaintiffs agree with the trial court that this language created a contingent remainder interest in Testator's children, excluding Hubert, with the contingencies being the death of Maude, and Hubert's death, without Hubert having surviving lineal descendants.

"A vested remainder is an estate which is deprived of the right of immediate possession by the existence of another estate created by the same instrument."

....

"A contingent remainder is merely the possibility or prospect of an estate which exists when what would otherwise be a vested remainder is subject to a condition precedent or as created in favor of an uncertain person or persons."

Mercer v. Downs, 191 N.C. 203, 205, 131 S.E. 575, 576 (1926) (citations omitted). Because Maude died in 1969 and Hubert died without lineal descendants in 1980, the contingencies were satisfied and, pursuant to the will, the property "reverted" to Testator's "heirs" upon Hubert's death.

The dispositive issue on appeal is at what time the class of Testator's "heirs" as referenced in the above portion of the third codicil was determined—upon Testator's death or upon Hubert's death. If the class was set upon Testator's death, James was in possession of a contingent remainder at his death in 1972, which contingent remainder he devised to his daughter Marjorie and her husband Robin, to the exclusion of his son, James Jr. Assuming the validity of this scenario, upon Hubert's death in 1980, Marjorie and Robin acquired twenty percent of the property in fee simple absolute, and James Jr. acquired nothing. Therefore, James Jr.'s children, Gregory, James III, and John, did not take any interest in the property upon James Jr.'s death, and Gregory and John III had no interest to convey to Plaintiffs in 2000.

However, if the class was not determined until Hubert's death, Gregory, James III, and John would have acquired a shared ten percent interest in the property immediately upon Hubert's death, because their father, James Jr., predeceased Hubert. Marjorie would have acquired the other ten percent of the original twenty percent interest apportioned to the James line of Testator's descendants. Assuming the validity of this scenario, Gregory, James III, and John each possessed one-third of a ten percent fee simple absolute interest in the property following Hubert's death, and were free to convey their shares to Plaintiffs.

Our Supreme Court has addressed the issue before us on multiple occasions.

"It is undoubtedly the general rule of testamentary construction that, in the absence of a contrary intention clearly expressed in the will, or to be derived from its context, read in the light of the surrounding circumstances, an estate limited by way of remainder to a class described as the testator's ‘heirs,’ ‘lawful heirs,’ or by similar words descriptive of those persons who would take his estate under the canons of descent, had he died intestate, vests immediately upon the death of the testator, and at which time the members of said class are to be ascertained and determined."

Mercer, 191 N.C. at 205, 131 S.E. at 576 (citation omitted).

However, this rule is subject to the controlling rule of interpretation that the intent of the testator is paramount, provided, of course, that it does not conflict with the settled rules of law. It will be observed that th[e] devise [in Mercer ] provides that at the death of the life tenant the property should go to "our surviving children or their heirs." This raises the question as to whether or not the remaindermen are to be ascertained as of the death of the testator or as of the death of the life tenant[.]

Id. Our Supreme Court in Mercer held that, after examining the...