Moore v. Bryson

• Decision Date: 26 May 1971
• Docket Number: No. 7130SC179,7130SC179
• Citation: 11 N.C.App. 260,181 S.E.2d 113
• Court: North Carolina Court of Appeals
• Parties: Kathleen Bryson MOORE and husband, J. Meredith Moore v. T. D. BRYSON, Jr., et al.

Page 113

181 S.E.2d 113

11 N.C.App. 260

Kathleen Bryson MOORE and husband, J. Meredith Moore v. T. D. BRYSON, Jr., et al.

No. 7130SC179.

Court of Appeals of North Carolina.

May 26, 1971.

Clark & Tanner by David M. Clark, Greensboro, for petitioner appellants.

J. Francis Paschal and E. C. Bryson, Jr., Durham, for defendants appellees.

GRAHAM, Judge.

Summary judgment is an extreme remedy and should be cautiously invoked to the end that parties will always be afforded a trial where there is a genuine dispute of facts between them. United Meat Co. v. Reconstruction Finance Corp., 85 U.S.App.D.C. 9, 174 F.2d 528 (1949). It is proper only when 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.' G.S. § 1A--1, Rule 56(c). "Upon a motion for summary judgment it is no part of the court's function to decide issues of fact but solely to determine whether there is an issue of fact to be tried.' Toebelman v. Missouri-Kansas Pipe Line Co., 130 F.2d 1016 (3rd Cir. 1942).' Lee v. Shor, 10 N.C.App. 231, 178 S.E.2d 101. The burden is on the moving party to establish the lack of a triable issue of fact. Pridgen v. Hughes, 9 N.C.App. 635, 177 S.E.2d 425.

We think it clear that the court properly overruled petitioners' motion for summary judgment. A more difficult question arises as to whether the motion for summary judgment, made by respondent E. C. Bryson, was properly allowed. The effect of granting this motion was to hold that a consideration of the pleadings and affidavits shows that no question of fact exists as to whether E. C. Bryson occupied a fiduciary relationship with Mrs. Moore and other cotenant owners of the 12 acres of bottom land at the time he purchased the Bryson homeplace; and if he did occupy such a relationship, whether the homeplace property was so vitally connected with the 12-acre tract as to render it improper for E. C. Bryson to purchase it for himself. We are of the opinion that facts contained in petitioners' affidavits raise jury questions as to each of these issues.

It is undisputed that on 27 December 1955, E. C. Bryson qualified as an executor of his uncle's estate and that to this day no final accounting has been filed. In fact, a recent effort by petitioners to force an accounting was successfully resisted by E. C. Bryson and his co-executor as being barred by the statute of limitations. (See Moore v. Bryson, N.C.App., 180 S.E.2d 437, filed 28 April 1971). E. C. Bryson contends, however, that his duties as an executor did not extend in any way to the 12-acre tract of real estate and could not render him a fiduciary with respect to this property. Ordinarily this would be quite true, for real estate normally is not considered a part of an estate to be administered by an executor, unless the personal estate is insufficient to discharge debts. G.S. § 28--148; Pearson v. Pearson, 227 N.C. 31, 40 S.E.2d 477.

Here, however, if affidavits filed by petitioners were found to be true and accurate, an inference that E. C. Bryson dealt with the 12-acre tract as if it were included within his administrative responsibilities as executor would be raised. For instance, taxes on the property accruing subsequent to the testator's death were paid by the executors from estate funds. E. C. Bryson, on behalf of all the owners, negotiated with the Southern Railroad for the purchase of a strip of land intersecting the 12-acre tract--in order to improve the tract's value. It would also appear that the executors negotiated a sale of a portion of the 12-acre tract to the State Highway Commission, received the proceeds from the sale, and disbursed the proceeds in accordance with their own judgment. This is illustrated by a letter, dated 22 October 1968, from E. C. Bryson to Mrs. Moore:

'Following receipt of your letter yesterday I called T. D. and suggested that he pay all taxes in both the D. R. Bryson property and the T. D. Bryson property and the (sic) divide the balance in six equal parts and send the checks to me and I would distribute them. I am talking now about the money received from the State. Actually there are no other funds anyway.

A later letter indicates that E. C. Bryson's suggestion was followed by his co-executor, though plaintiff contends the interest of the owners of the T. D. Bryson property was not identical to the interest of the owners of the 12-acre tract.

An affidavit of Edith B. Franklin permits an inference that it was because of E. C. Bryson's position as executor that he was made aware of her interest in selling the Bryson homeplace. She states that Mr. V. L. Cope, who had been renting the 12 acres of bottom land, inquired about purchasing the Bryson homeplace. Her affidavit continues: 'I did not wish to do anything underhanded about it, so I informed my brother, E. C. Bryson, one of the Executors of the Estate, who lived in Durham, that I was seriously considering selling the place; my brother E. C. Bryson, then called me immediately and asked would I sell to him. * * *' Her affidavit also tends to show that E. C. Bryson recognized the value of the homeplace to the 12-acre tract and at one time contended that a portion thereof was included within that tract. Paragraph 4 of Mrs. Franklin's affidavit provides in part:

'4. That my brothers, E. C. Bryson and T. D. Bryson, Jr., qualified as Executors of the Will of D. R. Bryson shortly after his death; that said Executors recognized from the outset that without access to Everett Street the value of the bottom land of the D. R. Bryson Estate was greatly diminished, and they initially took the position that the devise to me had included only the narrow strip on which the house rested and did not include the portion of the homeplace on which the maid's quarters rested * * * that in light of this controversy, I enlisted the assistance of my uncle, S. W. Black, Esq., of Bryson City, North Carolina, who had practiced law with my father, T. D. Bryson, before he became a superior court judge; that Mr. Black checked the records at the Courthouse for me which demonstrated that the house and lot was on an L-shaped lot; that after S. W. Black demonstrated this, my brothers apparently abandoned the position that the entire L-shaped lot did not belong to me.'

The trial court, though granting Mr. Bryson's motion for summary judgment, nevertheless found that he had generally acted as agent for his cotenants in the management of the 12-acre tract. These findings are as follows:

'9. After qualifying as Executors under the Will of Daniel Rice Bryson, the defendant, E. C. Bryson, together with the defendant, T. D. Bryson, Jr., generally attended to the payment of taxes on the property devised under the Residuary Clause of the Will; negotiated with the State Highway Commission for a right-of-way over the property; made inquiries as to the possible purchase of adjoining property; on occasions, advised with their co-tenants as to the matters affecting the common property, and, in general, acted as agents for their tenants-in-common in the management of the property devised under the Residuary Clause of the Will of Daniel Rice Bryson.'

An executor acts in a fiduciary capacity. G.S. § 32--2(a); Allen v. Currie, Commissioner of Revenue, 254 N.C. 636, 119 S.E.2d 917; In re Will of Covington, 252 N.C. 551, 114 S.E.2d 261; McMichael v. Proctor, 243 N.C. 479, 91 S.E.2d 231. Also, while a fiduciary relationship ordinarily does not arise between tenants in common from the simple fact of their cotenancy, such a relationship may be created by their conduct, 'as where one cotenant assumes to act for the benefit of his cotenants.' 86 C.J.S. Tenancy in Common § 17, p. 377. Furthermore, it is not necessary that there be a technical or legal relationship for a fiduciary relationship to exist. 36A C.J.S. Fiduciary, p. 387. '(T)he relationship exists where there has been a special confidence reposed in one who in equity and good conscience is bound to act in good faith and in due regard to the one reposing confidence.' 4 Strong, N.C. Index 2d, Fiduciaries, p. 17, and cases therein cited. Thus, if as an executor under the will of his uncle, as a cotenant, or simply as an individual, E. C. Bryson undertook to manage and generally control the 12-acre tract for the benefit...