Nelson v. Bennett

• Court: North Carolina Court of Appeals
• Writing for the Court: ERVIN
• Citation: Nelson v. Bennett, 694 S.E.2d 771 (N.C. App. 2010)
• Decision Date: 15 June 2010
• Docket Number: No. COA09-896.,COA09-896.
• Parties: Charlene NELSON, Executrix of the Estate of Lucille Virginia Jones, Plaintiffv.Gerry BENNETT, Inez Hagaman, Lynda Frejlach, Brian Eanes, Stacey Eanes Angstadt, William Holt, and Delores Holt, Defendants.

694 S.E.2d 771

Charlene NELSON, Executrix of the Estate of Lucille Virginia Jones, Plaintiffv.Gerry BENNETT, Inez Hagaman, Lynda Frejlach, Brian Eanes, Stacey Eanes Angstadt, William Holt, and Delores Holt, Defendants.

No. COA09-896.

Court of Appeals of North Carolina.

June 15, 2010.

Appeal by Defendant Lynda Frejlach from order entered 31 March 2009 by Judge Allen Baddour in Chatham County Superior Court. Heard in the Court of Appeals 19 November 2009.

Law Office of Michael W. Patrick, by Michael W. Patrick, Chapel Hill, for defendant-appellant, Lynda Frejlach.

Burns, Day & Presnell, P.A., by Lacy M. Presnell, III, Raleigh, and James J. Mills, for defendant-appellee, Inez Hagaman.

ERVIN, Judge.

Defendant Lynda Frejlach appeals from an order entered by the trial court construing the will of Lucille Virginia Jones to provide that Ms. Jones' will granted Ms. Frejlach a life estate in a house and eleven acres of real property located in Chatham County that was terminable upon the occurrence of certain triggering events. After careful consideration of the arguments advanced in the parties' briefs in light of the record and the applicable law, we affirm in part and reverse in part.

I. Factual Background

A. Substantive Facts

Ms. Jones died testate on 18 February 2008. Her last will and testament was dated 2 September 1998. Prior to her death, Ms. Jones owned a house and eleven acres of land located at 493 Gardner Road in Apex, North Carolina. Ms. Frejlach lived in the Gardner Road residence with Ms. Jones and assisted Ms. Jones with the design and construction of the Gardner Road residence. Ms. Frejlach alleges that, during this interval, she acquired numerous items of personal property which she stored at the Gardner Road residence based on her understanding that she would inherit the house at some point in the future. In addition, Ms. Frejlach asserts that Ms. Jones told her on numerous occasions that the residence would be left to her following Ms. Jones' death. In approximately 1997 or 1998, Ms. Frejlach left the Gardner Road residence and moved to Illinois.

After her death, Ms. Jones' will was admitted to probate. Item II.B.6 of Ms. Jones' will provided that:

I give the right for life to Lynda Frejlach to live in the house located on the 11 acres of property I own at 493 Gardner Road, Apex, NC, 27502. At her death or if Lynda Frejlach declines to exercise this right, I give this 11 acres of property to my sister, Inez [Hagaman]. This right is only for Lynda Frejlach to live in the house. The house is not to be used for a business or Bed and Breakfast and is not to be leased out by Lynda Frejlach. As indicated earlier, the personal property within the house which I currently own will belong to my sister, Inez [Hagaman], and should not be sold or disposed of by Lynda Frejlach.

As of 27 October 2008, Ms. Frejlach had not occupied the Gardner Road residence. According to Ms. Frejlach, the Gardner Road residence was in “a state of extreme clutter and disorder” at the time of Ms. Jones' death, a situation which made it difficult for Ms. Frejlach to locate and remove all of the items of her personal property which she left in the house at the time of her departure for Illinois and which rendered the house “not fit to live in at present.” In addition, Ms. Frejlach contended that she “could not occupy the Gardner Road residence until many items of [Ms. Jones'] personal property-to which [she] has no claim-are removed from the residence.”

B. Procedural Facts

On 27 October 2008, Charlene Nelson, as Executrix of Ms. Jones' estate, filed a declaratory judgment action in the Superior Court of Chatham County against Gerry Bennett, Ms. Hagaman, Ms. Frejlach, Brian Eanes, Stacey Eanes Angstadt, William Holt, and Delores Holt seeking, among other things, a determination of whether Ms. Frejlach had a license, rather than a life estate, in the Gardner Road property and whether Ms. Frejlach had implicitly renounced her right to live there. On 24 December 2008, Ms. Frejlach filed an answer and cross-claim in which she asked the court to declare that Ms. Jones' will had granted her a life estate in the Gardner Road property and that she had not renounced her interest in the property in question. On 23 January 2009, Ms. Hagaman filed an answer in which she asserted that Ms. Jones' will devised a defeasible life estate in the Gardner Road property to Ms. Frejlach and that Ms. Frejlach had declined to accept this life estate, effectively making Ms. Hagaman the owner of the Gardner Road property.

On 26 March 2009, the trial court entered an order interpreting Ms. Jones' will to devise Ms. Frejlach a defeasible life estate in the Gardner Road property, with this life estate terminable in the event that Ms. Frejlach (1) expressly declined the life estate in writing; ¹ (2) failed to reside in the Gardner Road residence beginning on or before 27 April 2009; (3) used the Gardner Road house or property for business purposes or as a bed and breakfast inn; (4) leased the house or property; or (5) ceased to reside in the Gardner Road residence. In its order, the trial court certified the issue of the proper interpretation of Item II.B.6 of Ms. Jones' will for immediate appellate review pursuant to N.C. Gen.Stat. § 1A-1, Rule 54(b). Ms. Frejlach gave notice of appeal to this Court from the trial court's order on 27 April 2009.

II. Legal Analysis

A. Jurisdiction

The trial court's order did not resolve all of the issues raised by the estate's request for declaratory relief and is, for that reason, not a final decision. The Court of Appeals has jurisdiction over appeals from orders that represent a final judgment as to one or more, but not all, of the claims or parties involved in a particular civil action and the trial court certifies, as it has done in this instance, that there is no just reason for delay. N.C. Gen.Stat. § 1A-1, Rule 54(b); see First Atl. Mgmt., Corp. v. Dunlea Realty, Co., 131 N.C.App. 242, 507 S.E.2d 56 (1998). The trial court's order finally disposes of the claims involving Ms. Frejlach's interest in the Gardner Road property. As a result, this Court has jurisdiction over Ms. Frejlach's challenge to the trial court's order.

B. Standard of Review

“The Declaratory Judgment Act, [N.C. Gen.Stat. § ] 1-253 et seq., affords an appropriate procedure for alleviating uncertainty in the interpretation of written instruments....” Hejl v. Hood, Hargett & Associates, Inc., 196 N.C.App. 299, 302, 674 S.E.2d 425, 427 (2009) (citation omitted). “ ‘The standard of review in declaratory judgment actions where the trial court decides questions of fact is whether the trial court's findings are supported by any competent evidence. Where the findings are supported by competent evidence, the trial court's findings of fact are conclusive on appeal.’ ” Cross v. Capital Transaction Grp., Inc., 191 N.C.App. 115, 117, 661 S.E.2d 778, 780 (2008) (citation omitted) disc. review denied, 363 N.C. 124, 672 S.E.2d 687 (2009). “ ‘However, the trial court's conclusions of law are reviewable de novo.’ ” Id. (quoting Browning v. Helff, 136 N.C.App. 420, 423, 524 S.E.2d 95, 98 (2000)). As a result of the fact that there are no factual disputes between the parties, the ultimate issue that we must resolve is the appropriate construction of Item II.B.6 of Ms. Jones' will.

C. Construction of Ms. Jones' Will

“An estate in fee simple determinable is created by a limitation in a fee simple conveyance which provides that the estate shall automatically expire upon the occurrence of a certain subsequent event.” Station Assoc., Inc. v. Dare County, 350 N.C. 367, 370, 513 S.E.2d 789, 792 (1999) (citing Elmore v. Austin, 232 N.C. 13, 20-21, 59 S.E.2d 205, 211 (1950)). “Like a fee, a life estate may be defeasible if its continued existence is conditional.” Brinkley v. Day, 88 N.C.App. 101, 106, 362 S.E.2d 587, 590 (1987) (citing Blackwood v. Blackwood, 237 N.C. 726, 76 S.E.2d 122 (1953)). “The law does not favor a construction of the language in a deed which will constitute a condition subsequent unless the intention of the parties to create such a restriction upon the title is clearly manifested.” Washington City Board of Education v. Edgerton, 244 N.C. 576, 578, 94 S.E.2d 661, 664, (1956). For that reason, the Supreme Court “has declined to recognize reversionary interests in deeds that do not contain express and unambiguous language of reversion or termination upon condition broken” and has “stated repeatedly that a mere expression of the purpose for which the property is to be used without provision for forfeiture or reentry is insufficient to create an estate on condition....” Station Assoc., 350 N.C. at 370, 371, 513 S.E.2d at 792, 793. However, “in those cases in which the deed contained express and unambiguous language of reversion or termination, we have construed a deed to convey a determinable fee or fee on condition subsequent.” Id., 350 N.C. at 371-72, 513 S.E.2d at 793. “The language of termination necessary to create a fee simple determinable need not conform to any ‘set formula’ ” as long as “ ‘any words expressive of the grantor's intent that the estate shall terminate on the occurrence of the event’ or that ‘on the cessation of [a specified] use, the estate shall end,’ ” are used. Id., 350 N.C. at 373-74, 513 S.E.2d at 794 (quoting Lackey v. Hamlet City Board of Education, 258 N.C. 460, 464, 128 S.E.2d 806, 809 (1963), and Charlotte Park and Recreation Commission v. Barringer, 242 N.C. 311, 317, 88 S.E.2d 114, 120 (1955) cert. denied sub nom., 350 U.S. 983, 76 S.Ct. 469, 100 L.Ed. 851 (1956)). As a result, the fundamental question that we must resolve in construing Item II.B.6 of Ms. Jones' will is determining whether it clearly expresses an intent that the life estate granted to Ms. Frejlach would automatically terminate upon the occurrence of one or more of the events described there.

It is an elementary rule ... that the intention of the testat[rix] is

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