Montgomery v. Hinton , 45 N.C. App. 271 ( 1980 )

262 S.E.2d 697 (1980)

Charles H. MONTGOMERY, Guardian ad Litem for Thomas Richard Hinton
v.
Odell HINTON.

No. 7910SC244.

Court of Appeals of North Carolina.

February 19, 1980.

Wake-Johnston-Harnett Legal Services by Gregory C. Malhoit, Raleigh, for plaintiff-appellee.

Charles H. Montgomery, Cary, for Guardian Ad Litem for Thomas Richard Hinton.

Fellers & Link by Carlton E. Fellers, Raleigh, for defendant-appellant.

MORRIS, Chief Judge.

It has been established that summary judgment is an appropriate procedure in a declaratory judgment action. Frank H. Connor Co. v. Spanish Inns Charlotte, 294 N.C. 661, 242 S.E.2d 785 (1978); Blades v. City of Raleigh, 280 N.C. 531, 187 S.E.2d 35 (1972).

The will of Nehemiah Hinton first directed his executor to pay all of his debts, funeral expenses, costs of administration, and estate and inheritance taxes. The will by Article II provided that:

After the payment of all such debts, expenses, taxes and obligations, I give, bequeath, devise and appoint unto my son, THOMAS RICHARD HINTON, all of my property of every sort, kind and description, whether real or personal and wheresoever situated, and all other property of whatsoever nature or kind over which I shall have any power of appointment exercisable by will, whether the same be known to me or not, to have and to hold the same absolutely and in fee simple forever, including, but not by limitation, my savings account at First Citizens Bank and Trust Company of Raleigh, XXX-XXXXXXX, a savings account at First Citizens Bank and Trust (S/ N.H.)

Page Two

Company of Raleigh for the benefit of THOMAS RICHARD HINTON 0862076064, real property located on Bloodworth Street, Raleigh Township, Wake County, North Carolina, and all my interest in Evans Used Cars.

Article III provided for the appointment of testator's brother, Odell Hinton, as guardian "to have custody of my minor child and to have full guardian powers over the property passing to my minor child both within and without this Will." Article IV appointed Odell Hinton as executor, to serve without bond, and further provided: "By way of illustration and not limitation and in addition to all powers otherwise granted by law, I hereby grant to my Executrix (sic) and any successor hereunder all the powers set forth in North Carolina General Statutes, Section 32-27, and these powers are hereby incorporated by reference and made a part of this instrument."

Defendant contends that the question for decision is whether the testator intended that the executor, his brother, have the right to exercise the power to sell, without prior court approval, real property devised under the terms of his will to his son and that that intention is clearly spelled out in Item IV.

Appellee contends that the testator's will only empowers the executor to sell real property if it is necessary to carry out the purposes of the will, pay debts of the estate, or make distribution of the estate.

Appellant concedes that the executor has no power to sell the land without court approval except when authorized to do so by the will, but contends the will grants that power.

It is elementary that when a person dies testate, title to his real estate vests in his devisees. Moore v. Jones, 226 N.C. 149, 36 S.E.2d 920 (1946). This rule is codified in G.S. 28A-15-2(b) which provides:

The title to real property of a decedent is vested in his heirs as of the time of his death; but the title to real property of a decedent devised under a valid probated will becomes vested in the devisees and shall relate back to the decedent's death, subject to the provisions of G.S. 31-39.

Under G.S. 28A-13-3(a)(1) (Supp. 1979), an executor has the "power to take possession, custody or control of the real property of the decedent if he determines [that] such possession, custody or control is in the best interest of the administration of the estate." However, prior to exercising control of the real property, he must follow the provisions of G.S. 28A-13-3(c) which require that he obtain a court order after filing a petition and making the devisees parties to the proceeding and having them served with summons.

Here defendant has not followed this procedure.

G.S. 28A-15-1 makes all of the real and personal property of a decedent available for the payment of debts of the decedent, and G.S. 28A-17-1 provides that the personal representative may apply to the Clerk of Superior Court for an order requiring the sale of realty for the payment of debts and other claims against the estate. Here it is stipulated that there are no debts of the estate which would require the sale of realty.

G.S. 32-27 enumerates powers which may be incorporated by reference in a will pursuant to the authority of G.S. 32-26. The statute in its entirety was incorporated by reference in Item IV of testator's will. Section (2) entitled "Sell and Exchange Property" is the portion of the statute upon which defendant relies. It provides:

To sell, exchange, give options upon, partition or otherwise dispose of any property or interest therein which the fiduciary may hold from time to time, with or without order of court, at public or private sale or otherwise, upon such terms and conditions, including credit, and for such consideration as the fiduciary shall deem advisable, and to transfer and convey the property or interest therein which is at the disposal of the fiduciary, in fee simple absolute or otherwise, free of all trust; and the party dealing with the fiduciary shall not be under a duty to follow the proceeds or other consideration received by the fiduciary from such sale or exchange. (Emphasis supplied.)

This statute availeth defendant nothing for it is clear that he does not "hold the property," nor is it at his "disposal." To allow an executor to rely on this statute, and nothing more, to justify the sale of property devised under a will would be to grant to all executors unbridled discretion to dispose of devised real estate without showing any reason or necessity therefor and without the knowledge of the devisee. This would obviously be a ridiculous result and just as obviously not the intent of the Legislature.

Here, the testator's intent is clear. He first directs the executor to pay his debts, the costs of administration, and all death taxes. After the payment of those obligations, he gives everything he owns to his son, Thomas Richard Hinton, specifically including in the devise the real estate which is the subject of this lawsuit. We read nothing in the will which gives the executor the power to sell the real estate without the authority given by order of the court.

Because we conclude the executor has no power of sale granted by the will, we do not discuss the doctrine of reconversion.

The portion of the order of the trial court, holding that the powers and authority given defendant under the will and G.S. 32-27 do not allow defendant to sell the real property in question without court approval, from which defendant appeals, is

Affirmed.

PARKER and HILL, JJ., concur.