Opinion
No. COA11–1306.
2012-05-1
Marian I. RIGGS, Plaintiff, v. Martha L. BURNS, Executrix of the Estate of William Colin Doxey; Bryan D. Irving; and Paul D. Irving and wife, Joesey M. Irving, Defendant.
Trimpi & Nash, LLP, by John G. Trimpi, for the plaintiff-appellant. C. Everett Thompson, II, for the defendant-appellees.
Appeal by plaintiff from orders entered 25 August 2011 and 6 September 2011 by Judge Marvin K. Blount, III in Currituck County Superior Court. Heard in the Court of Appeals 23 February 2012. Trimpi & Nash, LLP, by John G. Trimpi, for the plaintiff-appellant. C. Everett Thompson, II, for the defendant-appellees.
STEELMAN, Judge.
Where the testator's will did not convey real estate to the executor, but only provided for a power of sale, the sale by the executor was not subject to the upset bid procedures contained in Article 29A of Chapter 1 of the General Statutes.
I. Factual and Procedural Background
On 31 January 2011, Marian I. Riggs (“plaintiff”) filed a complaint requesting the trial court to enter a declaratory judgment as to whether the upset bid procedures of N.C. Gen.Stat. §§ 28A–17–10, 1–339.36(a), and 1–339.25 (2011) apply to a private sale of real estate by the executor of an estate. William Colin Doxey (“testator”) died seized of 2.10 acres of real estate located in Currituck County. Martha L. Burns was appointed personal representative of the estate. The will left all of testator's property to his wife. However, the wife predeceased testator, and the will directed that the executor sell all real and personal property, and distribute the net proceeds to Clara D. Irving, Louise D. Falconer, Juanita W. Lepp, Margaret W. Trout, and Louise W. Heath. Apparently the named beneficiaries also predeceased testator. Plaintiff, Bryan D. Irving, and Paul D. Irving (collectively the “Irving defendants”) are the children of Clara D. Irving.
The named defendants in this case are referred to as “defendants.”
Burns began marketing the property, and on 18 May 2010, she informed the beneficiaries of the estate that she was lowering the sales price of the property. On 25 August 2010, Burns entered into a contract to sell the land to the Irving defendants for $258,500. On 31 January 2011, plaintiff filed this action, asserting that she is willing to pay a substantially higher purchase price for the real estate and asserting that Burns was required under N.C. Gen.Stat. §§ 28A–17–10, 1–339.36(a), and 1–339.25 to allow a ten-day period for an upset bid, in the event of a private sale.
Defendants filed a motion to dismiss pursuant to Rule 12(b)(6) and a motion for judgment on the pleadings pursuant to Rule 12(c) of the North Carolina Rules of Civil Procedure. The trial court granted defendants' motion for judgment on the pleadings and dismissed plaintiff's complaint with prejudice.
Plaintiff appeals.
II. Judgment on the Pleadings
Plaintiff contends that the trial court erred in granting defendants' motion to dismiss under Rule 12(c). We disagree.
A. Standard of Review
On appeal, a trial court's ruling on a motion for judgment on the pleadings is reviewed de novo. Toomer v. Branch Banking & Trust. Co., 171 N.C.App. 58, 66, 614 S.E.2d 328, 335 (2005). “Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the [trial court].” Peninsula Prop. Owners Ass'n v. Crescent Res., LLC, 171 N.C.App. 89, 92, 614 S.E.2d 351, 353 (2005) (citations omitted) (internal quotation marks omitted).
B. Analysis
The plaintiff contends that Burns, as personal representative of the estate, acquired the property by way of conveyance, pursuant to N.C. Gen.Stat. § 28A–17–10, thus requiring a ten-day period for an upset bid upon a private sale.
This question is controlled by the case of Ferebee v. Procter, 19 N.C. 439, 446–47 (1837), where Chief Justice Ruffin held that a will directing the sale of land and the division of its proceeds vests title in its heirs, and not the executor, pending that sale:
If the will does not devise the land, but creates a power to sell it, then, upon the execution of the power, the purchaser is in under the will, as if his name had been inserted in it as devisee. But, in the mean time, the land descends, and the estate is in the heir. The power is not the estate, but only an authority over it, and a legal capacity to convey it. These are elementary maxims. But it is supposed, that the testator has disposed of his land, by directing a sale of it absolutely, and a division of the proceeds, so as to turn it out and out, as it is called, into personalty; and that this defeated the descent. When sold, the estate of the heir will certainly be divested; but such a provision in the will is only the creation of a power: it is a disposition of the proceeds of the land, but not a disposition of the land itself; and that consequently descends.
This rule has since been affirmed in Floyd v. Herring, 64 N.C. 409, 410–11 (1870) (holding a personal representative's authority to sell land is one that “confers no title or interest in the estate”) and Jones v. Warren, 213 N.C. 730, 197 S.E. 599 (1938) (holding until a power of sale which is conferred in a will is executed, the title to land remains vested in the heirs).
N.C. Gen.Stat. § 28–A–17–10 applies only where “property is conveyed to a personal representative for the benefit of the estate the personal representative represents....” Burns did not acquire the property by way of conveyance in the will. Item Four directs the personal representative, in the event that the testator's wife does not survive him, to “sell all of my real estate, execute a deed for the same and divide the proceeds” among the listed beneficiaries. Based on the express language of the will, Burns did not acquire the property by conveyance but was only given a power of sale. Thus, in accordance with the rule set forth in Ferebee, title vested in the identified beneficiaries, and not the executor, pending the sale.
We are bound by the above-referenced decisions of our Supreme Court. See Kinlaw v. Long Mfg., 40 N.C.App. 641, 643, 253 S.E.2d 629, 630,rev'd on other grounds, 298 N.C. 494, 259 S.E.2d 552 (1979) (holding it is not the prerogative of this Court “to overrule or ignore clearly written decisions of our Supreme Court”). Because N.C. Gen.Stat. § 28A–17–10 is not applicable, there was no requirement that the private sale be subject to the upset bid provisions of Article 29A of Chapter 1 of the General Statutes. The trial court properly granted defendants' motion for judgment on the pleadings.
AFFIRMED. Judges ELMORE and STROUD concur.
Report per Rule 30(e).