Brittian ex rel. Hildebran v. Brittian

• Decision Date: 15 September 2015
• Docket Number: No. COA15–139.,COA15–139.
• Citation: 243 N.C.App. 6,776 S.E.2d 867
• Parties: James George BRITTIAN, by and through Executrix of the Estate Deborah HILDEBRAN, Plaintiff, v. Michael Todd BRITTIAN, James Kevin Brittian, Brett Tyler Brittian and Chanté Fare Brittian, Defendants.
• Court: North Carolina Court of Appeals

243 N.C.App. 6
776 S.E.2d 867

James George BRITTIAN, by and through Executrix of the Estate Deborah HILDEBRAN, Plaintiff,
v.
Michael Todd BRITTIAN, James Kevin Brittian, Brett Tyler Brittian and Chanté Fare Brittian, Defendants.

No. COA15–139.

Court of Appeals of North Carolina.

Sept. 15, 2015.

Patrick, Harper & Dixon, LLP, by Thomas Filopoulos, Winston–Salem and David W. Hood, Hickory, for the Plaintiff–Appellant.

LeCroy Law Firm, PLLC, Morganton, by M. Alan LeCroy, for the Defendant–Appellant, Chanté Fare Brittian.

DILLON, Judge.

243 N.C.App. 7

Deborah Brittian Hildebran ("Plaintiff"), on behalf of the Estate of James George Hildebran (the "Estate"), appeals from an order dismissing her action for a declaratory judgment and denying her motion for summary judgment. For the following reasons, we reverse that portion of the order dismissing her declaratory judgment action and vacate that portion of the order denying her motion for summary judgment.

I. Background

This proceeding is a declaratory judgment action filed in superior court concerning the rights of the parties under a will (the "Will") executed by James George Brittian ("Testator"), now deceased—a will that has been accepted for probate in a separate proceeding before the clerk.

Prior to Testator's death, he executed the Will, naming his daughter (Plaintiff) as executrix, and gave the Will to her for safekeeping. The Will left the property in his estate to various beneficiaries. The Will contained a number of markings, one of which struck through the name of Testator's granddaughter, Chanté Fare Brittian (the "Granddaughter").

The Will was probated in common form before the clerk and letters testamentary were issued appointing Plaintiff as executrix. However, an assistant clerk in the Estates Division wrote a letter to Plaintiff to inform her that personnel in the Estates Division had been able "to read

243 N.C.App. 8

the blacked out sections on the original version [of the Will] and ha[d] typed up the sections from the original Will," and that "any modification by strike-outs, additions to and/or interlineations [were] not valid for purposes of probate," essentially taking the position that the apparent partial revocation of the Will disinheriting the Granddaughter was ineffective. Attached to this letter was a document typed up by personnel in the clerk's office which reproduced the language in the Will which had been marked through.

Plaintiff responded by letter through counsel, stating her position that the partial revocation

776 S.E.2d 870

was effective. However, in response to Plaintiff's letter, the assistant clerk wrote to Plaintiff advising her that it was in her best interest to file an action for a declaratory judgment, stating that "[a] ruling on this issue from a Superior Court Judge would clarify the matter."

Thereafter, Plaintiff instituted the present action for a declaratory judgment. The Granddaughter answered, moving to dismiss the action pursuant to Rule 12(b)(6) of our Rules of Civil Procedure for failure to state a claim upon which relief can be granted, or, in the alternative, asserting that the partial revocation of the Will was ineffective.

Plaintiff then moved for summary judgment. The Granddaughter responded to Plaintiff's summary judgment motion, asserting, inter alia, that Plaintiff was objecting to a duly admitted will in probate and that, therefore, Plaintiff was required to file a caveat in the probate proceeding before the clerk rather than through a declaratory judgment action in superior court.

After a hearing on the matter, the superior court entered an order granting the Granddaughter's Rule 12(b)(6) motion, and further denying Plaintiff's motion for summary judgment. Plaintiff entered timely notice of appeal.

II. Analysis

A. Granddaughter's Rule 12(b)(6) Motion

Plaintiff first argues that the trial court erred in granting the Granddaughter's Rule 12(b)(6) motion to dismiss. Specifically, Plaintiff contends that where the construction —rather than the validity —of a will is contested, the appropriate procedure for obtaining a declaration of the rights of the parties under that will is an action for a declaratory judgment, not a caveat proceeding. We agree.

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Our Supreme Court has held that the construction of a will presents "a proper justiciable question ... under the provisions of the North Carolina Declaratory Judgment Act." Johnson v. Wagner, 219 N.C. 235, 238, 13 S.E.2d 419, 421 (1941). That Act, as codified in relevant part in N.C. Gen.Stat. § 1–254, provides that "[a]ny person interested under a ... will ... may have determined any question of construction ... arising under the instrument ... and obtain a declaration of rights, status, or other legal relations thereunder." N.C. Gen.Stat. §...