Hammond v. Hammond (In re Estate of Hammond)

• Decision Date: 07 December 2011
• Docket Number: 09154P6; A146124.
• Citation: 268 P.3d 691,246 Or.App. 775
• 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.
• Court: Oregon Court of Appeals

246 Or.App. 775

268 P.3d 691

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.

09154P6; A146124.

Court of Appeals of Oregon.

Submitted Sept. 7, 2011.Decided Dec. 7, 2011.

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.

HADLOCK, J.

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) (a declaratory judgment proceeding to quiet title to personal property generally is equitable). 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:

“I find that the deed executed by Acy Dean Hammond conveying the property to [respondent] is valid. I find that the language ‘as a survivor’ qualifies under ORS 93.180(2) to create a tenancy in common in the life estate with cross-contingent remainders in the fee simple. Therefore, upon death of one, the other is the holder in fee simple. The language in the will does not revoke the deed. It is not necessary to resolve the issue of laches.”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) (stating goal). As we explained in Realvest Corp.:

“We do that by looking first to the language of the instrument itself and considering its text in the context of the document as a whole. If the text's meaning is unambiguous, the analysis ends, and we interpret the provision's meaning as a matter of law. If a provision is ambiguous-that is, if it has no definite meaning or is capable of more than one reasonable interpretation we will examine relevant surrounding circumstances or extrinsic evidence of the contracting parties' intent. Finally, if an ambiguity remains, we may resolve the contract's meaning by resort to applicable maxims of construction.”

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:

“Every conveyance or devise of lands, or interest therein, made to two or more persons, other than to a husband and wife, as such, or to executors or trustees, as such, creates a tenancy in common unless it is in some manner clearly and expressly declared in the conveyance or devise that the grantees or devisees take the lands with right of survivorship. Such a declaration of a right to survivorship shall create a tenancy in common in the life estate with cross-contingent remainders in the fee simple. Joint tenancy is abolished and the use in a conveyance or devise of the words ‘joint tenants' or similar words without any other indication of an intent to create a right of survivorship shall create a tenancy in common.”

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...