Jacobs v. Brewington

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-8
Filed: 20 March 2018
Cumberland County, No. 13-E-829
PEGGY BREWINGTON JACOBS, Plaintiff,
v.
EVELYN BREWINGTON, CO-EXECUTRIX OF THE ESTATE OF ERNEST
HAROLD BREWINGTON, SR., AND SABRINA BREWINGTON, CO-EXECUTRIX
OF THE ESTATE OF ERNEST HAROLD BREWINGTON, SR., Defendants.
Appeal by defendants from judgment entered 5 August 2016 by Judge James
M. Webb in Superior, Court, Cumberland County. Heard in the Court of Appeals 16
May 2017.
Ray Law Firm PLLC, by Steven J. O’Connor, for plaintiff-appellee.
McCoy Wiggins Cleveland & McLean PLLC, by Richard M. Wiggins, for
defendant-appellant.
STROUD, Judge.
Plaintiff’s brother, Ernest Harold Brewington, Sr., died on 19 May 2013,
leaving a holographic will. The holographic will provided in relevant part, “All
insurance proceeds will go in a trust account after the following . . . 5. Pay the note
@ BB&T that’s in my sister Peggy’s name[.]” On 21 June 2013, letters testamentary
were issued to defendants to serve as co-executrixes of the decedent’s estate. On 26
September 2013, plaintiff presented her claim under the will to defendants,
JACOBS V. BREWINGTON
Opinion of the Court
requesting payment of the BB&T loan, which she specifically identified by loan
number, principal balance, and per diem interest owed. On 25 November 2013,
defendants rejected plaintiff’s claim “in full” “pursuant to N.C. Gen. Stat. § 28A-19-1
et seq.” North Carolina General Statute § 28A-19-1 et seq. is in Article 19 of our
General Statutes entitled, “CLAIMS AGAINST THE ESTATE” which is in Chapter
28A entitled, “ADMINISTRATION OF DECEDENTS’ ESTATES[.]” See generally
N.C. Gen. Stat. Chap. 28A, Art. 19 (2013).
On 13 August 2015, plaintiff filed a “COMPLAINT BY LEGATEE TO
RECOVER LEGACY[.]” Plaintiff alleged that she was entitled to receive payment
under the her brother’s will of the sum required to pay off the BB&T loan. Plaintiff
requested the trial court to compel payment from defendants, the co-executrixes of
her brother’s estate. Defendants answered plaintiff’s complaint, alleging plaintiff
was a creditor of the estate and had received “$38,593.07 in life insurance proceeds[.]”
Defendants’ implicit position was that plaintiff’s only possible claim was as a creditor
under the estate and not as a legatee, and payment of the debt had been fulfilled in
part with the $38,593.07 payment. Defendants also requested dismissal under North
Carolina Rule of Civil Procedure 12(b)(6) and argued plaintiff’s claim was barred by
the “[a]pplicable” statute of limitations because “Plaintiff’s claim is properly treated
as that of a creditor[,]” although the answer did not cite a particular statute.
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Opinion of the Court
On 7 October 2015, the trial court denied defendant’s motion to dismiss. After
a bench trial, on 5 August 2016, the trial court entered an order with many findings
of fact, none of which are challenged on appeal. Relevant to the issue on appeal, the
trial court found “[t]he only note at BB&T that plaintiff had at the time of decedent’s
death . . . had a balance at or about . . . $86,230.48 with interest at 4.1% per annum[.]”
The trial court concluded that “[t]he will of the decedent in Section 5.E. made an
indirect devise to the plaintiff by directing that decedent’s funds were to be used to
pay a debt owned by the plaintiff to a third party, Branch Banking and Trust
Company, which debt was Branch Banking & Trust Company Loan . . . in the name
of the plaintiff.” The trial court found:
Defendants filed an Affidavit of Notice to Creditors on
September 25, 2013 which stated that no copy of the Notice
to Creditors required by G.S. 28A-14-1 had been mailed or
personally delivered because, after making a reasonable
effort, within the time allowed by law, they were satisfied
that there were no persons, firms or corporations having
unsatisfied claims against the estate of the decedent. The
defendants did not mail or deliver to plaintiff a Notice to
Creditors as is described in N.C Gen. Stat. §28A-14-1.
The trial court concluded that “[t]he rejection of the creditor’s claim filed by the
plaintiff and the statute of limitations applicable to such claim, N.C. Gen. Stat. § 28A-
19-3, does not bar the claim of an heir or devisee to their respective shares or interests
in a decedent’s estate.” The trial court entered judgment for plaintiff and ordered
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Opinion of the Court
defendants, the co-executrixes of the estate, to pay $91,949.07 with interest.
Defendants appeal.
Defendants argue that the trial court erred in determining plaintiff “was
entitled to indirect devise” because she was a creditor of the estate. Whether plaintiff
was a creditor of the estate is a question of law we review de novo on appeal. Spears
v. Betsy Johnson Mem’l Hosp., 210 N.C. App. 716, 719, 708 S.E.2d 315, 318 (2011)
(“[I]ssues involving statutory interpretation are questions of law, which are reviewed
de novo by an appellate court.” (citation and quotation marks omitted)). Defendants
have not challenged any of the trial court’s findings of fact supporting its conclusion
of law that plaintiff was not a creditor of the estate, and we agree with the trial court’s
conclusion.
We are unaware of any North Carolina authority which discusses or interprets
what constitutes an “indirect devise.” A devise would usually be classified as a
specific devise, a general devise, or a residuary devise. See N.C. Gen. Stat. § 28A-15-
5 (2013).
The general rules for determining whether a bequest
is general or specific in nature are relatively clear, but their
proper application to the innumerable variations in
wording and circumstances presented by testators to the
courts is much less certain. A specific legacy is defined as a
gift of a particular fund or object -- a particular thing or
money specified and distinguished from all of the same
kind, as of a horse, a piece of plate, money in a purse, stock
in the public funds, a security for money, which would
immediately vest with the assent of the executor. In order
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Opinion of the Court
to avoid having to apply the principle of ademption, courts
usually presume that the testator intended to create a
general legacy when he fails to make his intention clear.
The tendency of the courts is to hold that a bequest is not
specific unless the intent clearly appears in the will.
A general bequest is defined as a gift of property
which does not specify the exact unit of property which the
legatee is to receive.
Edmundson v. Morton, 332 N.C. 276, 283–84, 420 S.E.2d 106, 111 (1992) (citations
and quotation marks omitted).
The classification of a devise is normally not a disputed issue unless the estate
is not sufficient to satisfy all devises, in which case devises abate in a particular order,
depending upon the type of devise. See generally N.C. Gen. Stat. § 28A-15-5.
Abatement is not an issue here, since there is no indication that the decedent’s estate
was insufficient to satisfy all devises and debts. Whether the direction to pay the
BB&T debt owed by plaintiff was a general devise, a specific devise, or an “indirect
devise,” as the trial court described it, the issue here is only whether it was some form
of devise. Defendants have argued only plaintiff is instead a creditor.
We also note that defendants’ claim is contradicted by their own sworn
affidavit. On 25 September 2013 defendants filed an “AFFIDAVIT OF NOTICE TO
CREDITORS” -- Form AOC-E-307, Rev. 3/07 under North Carolina General Statutes
§§ 28A-14-1, -14-2, averring the estate had no creditors. “Our Courts have
continuously recognized that a party may not assert a particular position in an action,
and then assert a contrary position in subsequent proceedings after having accepted
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the benefits.” Meehan v. Meehan, 116 N.C. App. 622, 626, 448 S.E.2d 851, 853 (1994).
“[J]udicial estoppel forbids a party from asserting a legal position inconsistent with
one taken earlier in the same or related litigation.” Price v. Price, 169 N.C. App. 187,
191, 609 S.E.2d 450, 452 (2005) (citation and quotation marks omitted). Because
defendants’ affidavit averred the estate had no creditors, and the trial court so found,
they are now estopped from claiming plaintiff is a creditor in this lawsuit to recover
under the estate. See generally id.
Defendants’ only other argument on appeal is that plaintiff’s claim was barred
by the statute of limitations for creditors under North Carolina General Statute §
28A-19-16 which defendants contend was “within three months after the written
rejection of the claim.” But since plaintiff is not a creditor, any statute of limitations
applicable to creditors does not apply to her. Defendants have not alleged or argued
any other statute of limitations would bar her claim.
We affirm the trial court’s judgment.
AFFIRMED.
Judges BRYANT and CALABRIA concur.
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