Hammond v. Hammond (In re Estate of Hammond)
Jurisdiction | Oregon |
Parties | In the Matter of the Estate of Acy Dean Hammond, Deceased.Michael Coleman HAMMOND, Appellant, v. Jerry James HAMMOND, aka Jerome James Hammond; Sherman Dean Hammond; and Sara Hammond, Individually and as Personal Representative of the Estate of Acy Dean Hammond, Respondents. |
Citation | 268 P.3d 691,246 Or.App. 775 |
Docket Number | 09154P6; A146124. |
Court | Oregon Court of Appeals |
Decision Date | 07 December 2011 |
OPINION TEXT STARTS HERE
Robert M. Stone filed the briefs for appellant.
Eugene V. Anderson filed the brief for respondents Sherman Dean Hammond and Sara Hammond, individually.
Appearance for respondent Sara Hammond as personal representative of the Estate of Acy Dean Hammond waived by Martial E. Henault.No appearance for respondent Jerry James Hammond.
Before ORTEGA, Presiding Judge, and SERCOMBE, Judge, and HADLOCK, Judge.
Acy Dean Hammond, who died in October 2001, had three sons: petitioner Michael Hammond, and respondents Sherman Hammond and Jerome “Jerry James” Hammond. This case relates to the sons' disagreement about which of them now own certain real property in Jackson County that Acy owned while she was alive. The dispute arose because of a disparity in terms between (1) a 1985 deed that purported to convey the property from Acy to Sherman Hammond “as a survivor” and (2) Acy's May 2000 will, which purported to divide interests in the property among her three sons.1
In March 2009, petitioner filed an action seeking to probate Acy's will and to be appointed her personal representative. Later that year, he sought a declaration regarding ownership of the real property. The trial court declared that respondent owns the property in fee simple by virtue of the 1985 deed. On appeal, petitioner assigns error to that ruling. We agree that the trial court erred and, accordingly, reverse and remand.
We begin by addressing our standard of review. The parties contend that we should review the trial court's decision de novo because it sounds in equity. We agree that the action is equitable in nature. See Neuschafer v. McHale, 76 Or.App. 360, 362–63, 709 P.2d 734 (1985) ( ). However, we no longer review judgments in all equitable proceedings de novo. Rather, de novo review is now discretionary in most equitable cases, like this one, in which the notice of appeal was filed after June 4, 2009. ORS 19.415(3)(b). Petitioner does not explain why we should exercise our discretion to review this matter de novo, and we discern no reason to do so. Accordingly, “[w]e review the trial court's legal conclusions for errors of law,” and, had the trial court made factual findings, we would be bound by those findings if any evidence in the record supported them. Neff v. Sandtrax, Inc., 243 Or.App. 485, 487, 259 P.3d 985, rev. den., 350 Or. 716, 260 P.3d 493 (2011). The trial court appears to have ruled on the deed's meaning purely as a legal matter, however, without making explicit or implicit findings. Consequently, we recite the undisputed facts as the parties presented them to the trial court, noting additional disputed facts when relevant.2
Acy owned and lived on the Jackson County property that is the subject of this litigation. In 1985, Acy executed a statutory bargain-and-sale deed providing that “Acy Dean Hammond Grantor, conveys to [respondent], as a survivor” that real property. The deed was recorded three days later. According to respondent, he then began to pay one third of the property taxes (which he claims were levied against both him and Acy) and also began to perform maintenance work on the property. Acy continued, however, to live in the main residence located on that land.
In May 2000, Acy signed a will that also purported to declare what would happen to her real and personal property after her death. The will directed that the real property be divided, with various interests in the property apportioned among the three sons.
Acy died in October 2001. For at least the last eight months of her life, petitioner lived with and cared for Acy in her home on the property; he still lives in that house.3 Jerry James has lived in a separate dwelling on the property for several years. Respondent lives on an adjacent parcel that he owns with his wife, Sara Hammond. Respondent asserts, however, that he continued caring for the subject property after Acy's death, believing that he owned it under the terms of the 1985 deed.
In March 2009, over eight years after Acy's death, petitioner filed a petition in which he sought to probate Acy's will and to be appointed as her personal representative.4 Soon thereafter, he requested a declaration that the 1985 deed was invalid and that he was entitled to either a one-half interest in the property under Acy's will or a one-third interest in Acy's estate, including the real property, under the probate code. In response, respondent maintained that the property had passed to him in fee simple under the terms of the 1985 deed and ORS 93.180(2). Respondent argued in the alternative that petitioner's claim was barred by the doctrine of laches because, respondent asserted, petitioner had known since before Acy's death that respondent claimed ownership of the property. The trial court agreed with respondent's statutory argument and issued a letter opinion stating:
The trial court subsequently entered a general judgment declaring that respondent owns the property in fee simple. Petitioner appeals, challenging that conclusion.
In reviewing a deed that conveys property, our goal is to determine the parties' intent, “subject to the ordinary rules of contract construction.” Cassidy v. Pavlonnis, 227 Or.App. 259, 264, 205 P.3d 58 (2009); see Realvest Corp. v. Lane County, 196 Or.App. 109, 116, 100 P.3d 1109 (2004) ( goal). As we explained in Realvest Corp.:
196 Or.App. at 116, 100 P.3d 1109 (citations omitted).
Thus, our first task is to examine the text of the 1985 deed to determine whether it created a tenancy in common in a life estate, with cross-contingent remainders, as the trial court held. On its face, the deed does not unambiguously create those concurrent interests in the property. The deed's text does not refer to any type of interest held commonly by Acy and respondent, much less a common interest in a life estate, and the obscure phrase purporting to deed the property to respondent “as a survivor” does not unambiguously create cross-contingent remainders.
We agree with the trial court, however, that we also must consider ORS 93.180, which defines “tenancies in common” (at least for statutory purposes) and specifies how that kind of estate in land may be created. Stevens v. Theurer, 213 Or.App. 49, 53, 159 P.3d 1224 (2007). When the deed was executed in 1985, ORS 93.180 provided:
ORS 93.180 (1985) (emphasis added). The trial court held that the phrase “as a survivor” in the deed “qualifie[d]” under the statute “to create a tenancy in common in the life estate with cross-contingent remainders in the fee simple.” 5 We disagree.
As pertinent here, ORS 93.180 (1985) provided that a tenancy in common could be created only through a “single ‘conveyance or devise’ to ‘two or more persons.’ ” Stevens, 213 Or.App. at 53, 159 P.3d 1224. Similarly, the statute provided that any associated “right of survivorship” or “cross-contingent remainders in the fee simple” could be created only when a single conveyance—“ the conveyance”—gave two or more “grantees” a tenancy in common in a life estate and declared the grantees' survivorship rights. ORS 93.180 (1985) (emphasis added).
The 1985 deed did not comply with those statutory requirements. On its face, the deed did not purport to convey the property to “two or more persons” (Acy and respondent) but stated simply that Acy conveyed the property to respondent “as a survivor.” Nor did the deed describe survivorship rights in more than one grantee. Accordingly, the trial court erred when it ruled that the deed, in conjunction with the statute, made Acy and respondent tenants in common in a life estate, each holding a cross-contingent remainder in the fee simple.6
We also conclude that the 1985 deed did not...
To continue reading
Request your trial-
Leach v. Scottsdale Indem. Co.
...ineffective as well. The trial court is in the best position to address that question in the first instance. See Hammond v. Hammond, 246 Or.App. 775, 783, 268 P.3d 691 (2011) (remanding to trial court to “consider whether available extrinsic evidence” resolved the issue of the intent of the......
-
Hammond v. Hammond
...800 and 600 is included as Appendix 1. The map is a modified version of an exhibit that was admitted at trial.2 See Hammond v. Hammond , 246 Or. App. 775, 268 P.3d 691 (2011) (reversing the trial court’s ruling that the deed unambiguously conveyed Tax Lot 800 to plaintiff in fee simple); Ha......
-
Ventana Partners, LLC v. Lanoue Dev., LLC
...in common because their interests were not created by a “ ‘single conveyance or devise to two or more persons.’ ” Hammond v. Hammond, 246 Or.App. 775, 781, 268 P.3d 691 (2011) (quoting Stevens v. Theurer, 213 Or.App. 49, 53, 159 P.3d 1224 (2007) ) (some internal quotation marks omitted). Be......
-
Peace River Seed Co–Operative, Ltd. v. Proseeds Mktg., Inc.
...of * * * extrinsic evidence is * * * a factual inquiry to be performed by the factfinder in the first instance.” Hammond v. Hammond, 246 Or.App. 775, 783, 268 P.3d 691 (2011). In this case, there was some evidence in the record that would relate to the parties' intent. Peace River “urge[d t......