Dimond v. Kelly
| Citation | 629 P.2d 533 |
| Decision Date | 05 June 1981 |
| Docket Number | No. 4958,4958 |
| Parties | Jennie DIMOND, formerly Jennie Brower, William Brower, William C. Brower, Marian Brower Ballas, Appellants, v. Elizabeth KELLY, Flora Kalbargh, formerly Flora Brower and also known as Flora Loveridge, Thomas Brower a/k/a Thomas P. Brower, David Brower a/k/a David Brower, Sr., Robert Brower a/k/a Robert Brower, Sr., Maria Brower Ahgeak, formerly Maria Brower, Sadie Brower Neakok, formerly Sadie Brower, Kate Sakeagak, formerly Kate Brower, Arnold Brower a/k/a Arnold Brower, Sr., Harry Brower a/k/a Harry Brower, Sr., Mary Brower, Mary A. Stotts, Nancy Stotts, The unknown heirs or devisees of the aforesaid individuals, if any of the said individuals is deceased, Unknown claimants as to any right, title or interest in the subject property of this complaint, Appellees. |
| Court | Supreme Court of Alaska (US) |
Terri-Lynn Coons and Ernest Z. Rehbock, Rehbock & Rehbock, Anchorage, for appellants.
Charles K. Cranston, Cranston, Walters, Dahl & Jerrell, Anchorage, for appellees.
Before RABINOWITZ, C. J., CONNOR, BURKE and MATTHEWS, JJ., and BRYNER, Chief Judge, Court of Appeals.
This appeal presents a dispute between the heirs of Charles D. Brower, who died testate on February 11, 1945, and was survived by fourteen children. Appellants are the heirs living outside Alaska. They challenge the superior court's determination of their rights and interests in a parcel of land known as U. S. Survey 1432, located at Barrow, Alaska. Charles Brower's will and codicil granted appellants a remainder interest in the parcel, while granting appellees both life estates and a share of the fee remainder. 1 The central question presented is whether the entire area of U. S. Survey 1432 was within Charles Brower's estate and thus subject to distribution; resolving that determines the amount of land in which appellants hold a remainder interest. A subsidiary issue is whether appellants, as holders of remainder interests, can maintain an action for a partition of the remainder.
Based on motions for partial summary judgment and after trial, the superior court concluded that appellants hold remainder interests in fee, to follow appellees' life estates, only in: (a) the portion of U. S. Survey 1432, lying north of a private road, 2 upon which the family residence of Charles Brower is located; and, (b) the entire portion of U. S. Survey 1432 lying south of the private road.
This disposition was based on findings by the superior court that Charles D. Brower conveyed, in two 1943 deeds, nearly all of the northern portion of U. S. Survey 1432 to his sons Thomas P. and David Brower. Thus, it concluded, that portion was not within Charles Brower's estate when it was distributed. In addition, the superior court held that appellants, as remaindermen, have no right of partition because they hold no present possessory interest.
The superior court's interpretation of the 1943 deeds and the October 5, 1948, probate decree is best understood in light of certain events occurring before Charles Brower's death. Prior to July, 1943, Charles Brower was a partner with a San Francisco company in a whaling and trading business that used all of U. S. Survey 1432 for its operations. Sometime before July 1, 1943, Charles Brower terminated this partnership and substantially ceased the commercial whaling business. From that time until July 1, 1943, Charles Brower ran a general merchandise business in Barrow known as Cape Smythe Whaling and Trading Co. In connection with that business Charles Brower used all of U. S. Survey 1432 lying north of an old trail or road, except for a small area encompassing the family residence.
On July 1, 1943, Charles Brower entered into a partnership with two of his sons, Thomas and David. The business of the partnership was the buying and selling of general merchandise, furs, gold, and other commodities. The capital of the partnership was to be $25,616.06, one-third of which was to be contributed by each partner. Contemporaneous to the formation of the partnership, Charles Brower conveyed to Thomas and David a one-third interest each in the warehouses and store building (and some personal property) used by Charles in operating the Cape Smythe Whaling and Trading Co., all situated on U. S. Survey 1432. Appellants contend this conveyance transferred only the store and buildings, while appellees argue that the subjacent and adjacent realty (i. e., the northern portion of U. S. Survey 1432) was transferred as well.
From July 1, 1943, until the death of Charles Brower on February 11, 1945, the partnership of the father and the two sons continued to operate the merchandising business. During this time the partnership continued to use the north portion of the U. S. Survey 1432 for the business.
After Charles Brower's death, the remaining two partners, sons David and Thomas, purchased his share of the partnership assets. The trial court found that the administrator of Charles Brower's estate believed that the northern portion of U. S. Survey 1432, used by the partnership, was partnership property and, except for the testator's one-third interest therein, did not consider the land as within the assets of Charles Brower's estate. The trial court concluded that the only part of U. S. Survey 1432 subject to the estate of Charles Brower was the residence lying north of the old road, and all of the survey lying south of that road. Taking into account certain purchases and conveyances, 3 the superior court found the respective interests to be as follows:
Northern Parcel
1. Thomas P. Brower owns in fee simple that portion of U. S. Survey 1432 lying north of the old trail or private road, except for the land upon which the family residence of Charles Brower was located as of the date of his death (February 11, 1945).
2. Thomas P. Brower owns the sole life estate in that land upon which the family residence of Charles Brower was located as of the date of his death. This life estate is measured by the life of the last survivor of the following: Thomas P. Brower, David Brower, Sr., Maria Brower Ahgeak, Sadie Brower Neakok, Kate Sakeagak, Arnold Brower, Sr., Mary Stotts, and Robert Brower, Sr.
3. Thomas P. Brower owns 11/14ths of the residual, or remainder, interest in that portion of U. S. Survey 1432 upon which the above-mentioned residence sits. Appellants own the remaining 3/14ths remainder interest as follows: Jennie Dimond, 1/14th; William Brower, 1/14th; and William C. Brower and Marian Brower Ballas, 1/28th each by right of representation through their deceased father James Brower.
1. Thomas P. Brower, Robert Brower, David Brower, Sadie Neakok, Arnold Brower, Maria Ahgeak, Mary Stotts, Kate Sakeagak, and Harry Brower own equally a life estate in that portion of U. S. Survey 1432 lying south of the old trail or private road, each party's interest measured by his or her own life.
2. The remainder fee interest in the southern portion of U. S. Survey 1432 is vested in all fourteen children of Charles Brower, their heirs or assigns, as modified by a letter agreement of January 10, 1978 and certain January, 1971, quitclaim deeds to Thomas Brower. Accordingly, the fee remainder to the southern parcel is owned as follows: Thomas P. Brower, 3/14ths; all other brothers and sisters, (except Flora Loveridge Kalbargh and Elizabeth Kelly), their heirs and assigns, 1/14th each. 4
Appellants contend that they hold remainder fee interests in the entire area of U. S. Survey 1432, rather than in just the residence and southern portion. To reach this result, appellants argue that in granting each child a 1/14th fee remainder to U. S. Survey 1432, the probate decree did not distinguish between the northern and southern portions of the survey; that by distributing interests to "U. S. Survey 1432" the probate court impliedly determined that the "deeds" to sons Thomas and David did not convey any realty; that this determination by the probate court is res judicata; that the entire survey was in the estate of Charles Brower and subject to distribution; that as residual holders of remainder interests, appellants have an interest in the entire survey; and finally, that appellants are entitled to a partition of the remainder interests. Thus appellants raise three grounds of error. First, that the superior court erred in concluding that the 1948 probate decree did not grant appellants a remainder interest in the entire survey area. Second, that the superior court erred in relying on extrinsic evidence to uphold the validity of and construe the scope of the 1943 deeds. Third, that the superior court erred in holding that non-possessory holders of remainder interests cannot maintain an action for partition.
Appellees position is that the probate court could not distribute land not in the estate; that the "deeds" conveyed all land used in the partnership business, i. e., all land north of the old trail or private road (excepting the residence) to Thomas and David Brower; that appellants' remainder interests are therefore necessarily limited to the residence and to the southern portion of U. S. Survey 1432; and that non-possessory holders of remainder interests cannot seek a partition without the consent of the life tenants.
We affirm the superior court's ruling as to the existing interests in U. S. Survey 1432, but we conclude it erred in holding that appellants cannot maintain an action for the partition of the remainder interest.
Appellants argue that the 1948 probate decree is conclusive and res judicata as to the parties' interests in U. S. Survey 1432. They assert that the administrator made no distinction between the north and south portion of the survey in distributing the remainder interest, 5 and thus each of Charles Brower's children hold a 1/14th remainder interest, in fee, to the entire parcel. Appellees...
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