Nelson v. Bennett

HUNTER, JR., Robert N., Judge,

concurring in part and dissenting in part.

Although I agree with my colleagues that the language suggesting that Ms. Frejlach may not use the home as a business is precatory, our opinions differ with regard to whether Ms. Frejlach is required to live in the devised home as a condition subsequent. After reviewing the language of Item 11(B)(6), I do not find a significant distinction between the language of desire that Ms. Frejlach not use the home as a business and the language desiring that Ms. Frejlach live on the premises. The majority opinion does not provide such a distinction.

For instance, the pertinent language in dispute provides: “I give the right for life to Lynda Frejlach to live in the house located on the 11 acres of property I own .... At her death or if Lynda Frejlach declines to exercise this right, I give this 11 acres of property to my sister, Inez Hageman.” This devise does not contain definite language of reversion or re-entry based on a condition that Ms. Frejlach live in the home, but rather provides for clear and definite events of defeasance only in the event of death or renunciation. With regard to this language, N.C. Gen. Stat. § 31B-2 (2009) provides a methodology for renouncing or declining a devise, and the death of the tenant always results in the end of a life estate. Thus, the testator’s own words would lose their meaning if the majority’s interpretation of the will is employed.

*476When interpreting a will, “every word and clause must, if possible, be given effect and apparent conflicts reconciled.” Slater v. Lineberry, 89 N.C. App. 558, 559, 366 S.E.2d 608, 610 (1988). It has been long held that “ ‘[o]rdinarily a clause in [an instrument] will not be construed as a condition subsequent, unless it contains language sufficient to qualify the estate conveyed and provides that in case of a breach the estate will be defeated, and this must appear in appropriate language sufficiently clear to indicate that this was the intent of the parties.’ ” Station Assoc. Inc. v. Dare County, 350 N.C. 367, 370, 513 S.E.2d 789, 792 (1999) (quoting Ange v. Ange, 235 N.C. 506, 508, 71 S.E.2d 19, 20 (1952); see also Church v. Refining Co., 200 N.C. 469, 473, 157 S.E. 438, 440 (1931); Braddy v. Elliott, 146 N.C. 578, 580-81, 60 S.E. 507, 508 (1908).

A condition subsequent will not be recognized unless the language of the instrument contains “express and unambiguous language of reversion or termination upon condition broken.” Station Assoc., 350 N.C. at 370, 513 S.E.2d at 792. In Station Assoc., the Court notes a plethora of cases which support the aforementioned proposition:

Washington City, 244 N.C. at 577, 578, 94 S.E.2d at 662, 663 (habendum clause contained expression of intended purpose— “for school purposes”; held fee simple because no power of termination or right of reentry was expressed); Ange, 235 N.C. at 508, 71 S.E.2d at 20 (habendum clause contained the language “for church purposes only”; nevertheless held to be an indefeasible fee since there was “no language which provides for a reversion of the property to the grantors or any other person in case it ceases to be used as church property”); Shaw Univ. v. Durham Life Ins. Co., 230 N.C. 526, 529-30, 53 S.E.2d 656, 658 (1949) (property and the proceeds therefrom were to be “perpetually devoted to educational purposes”; held fee simple absolute since there was “nothing in the . . . deed to indicate the grantor intended to convey a conditional estate,” and there was “no clause of re-entry, no limitation over or other provision which was to become effective upon condition broken”); Lassiter v. Jones, 215 N.C. 298, 300-01, 1 S.E.2d 845, 846 (1939) (deed conveyed property “for the exclusive use of the Polenta Male and Female Academy; it shall be used exclusively for school purposes”; held to have conveyed a fee simple “for the reason that nowhere in the deed is there a reverter or reentry clause”); First Presbyterian, 200 N.C. at 470-71, 473, 157 S.E. at 438-39, 440 *477(habendum clause indicated that the property was to be used for church purposes only; held to be an indefeasible fee simple, notwithstanding the language in the habendum clause, since there was “no language showing an intent that the property shall revert to the grantor... or that the grantor... shall have the right to reenter.”); Hall v. Quinn, 190 N.C. 326, 328-29, 130 S.E. 18, 19-20 (1925) (granting clause and habendum clause both indicated that the property was “to be used for the purposes of education” only; held to be an estate in fee simple because there was “no clause of re-entry; no forfeiture of the estate upon condition broken”); Braddy, 146 N.C. at 580-81, 60 S.E. at 508 (recitals that the grantor was to improve the property did not create an estate upon condition since there was an absence of an express reservation in the deed of a right of reentry).

Id. at 370-71, 513 S.E.2d at 792-93. On the other hand, the Court also provided that an estate has been recognized by courts as defeasible or subject to condition subsequent where the habendum clause “con-taints] express and unambiguous language of reversion or termination ....” Id. at 371, 513 S.E.2d at 793. The following cases were recognized by the Court in support:

Mattox v. State, 280 N.C. 471, 472, 186 S.E.2d 378, 380 (1972) (habendum clause contained condition that if the grantee failed to continuously and perpetually use the property as a Highway Patrol Radio Station and Patrol Headquarters, the land “shall revert to, and title shall vest in the Grantor”); City of Charlotte v. Charlotte Park & Rec. Comm’n, 278 N.C. 26, 28, 178 S.E.2d 601, 603 (1971) (habendum clause contained language that “upon condition that whenever the said property shall cease to be used as a park..., then the same shall revert to the party of the first part”); Lackey v. Hamlet City Bd. of Educ., 258 N.C. 460, 461, 128 S.E.2d 806, 807 (1963) (deed contained paragraph providing, “It is also made a part of this deed that in the event of the school’s disabandonment (failure) . . . this lot of land shall revert to the original owners”); Charlotte Park & Rec. Comm’n v. Barringer, 242 N.C. 311, 313, 88 S.E.2d 114, 117 (1955) (deed indicated that in the event the lands were not used solely for parks and playgrounds, the “said lands shall revert in fee simple to the undersigned donors”), cert. denied, 350 U.S. 983, 100 L. Ed. 851 (1956); Pugh v. Allen, 179 N.C. 307, 308, 102 S.E. 394, 394 (1920) (deed contained provision that “in case the said James H. Pugh should die without an heir the following gift shall revert to the sole use and *478benefit of my son”); Smith v. Parks, 176 N.C. 406, 407, 97 S.E. 209, 209 (1918) (deed indicated that “should [grantor] die without leaving such heir or heirs, then the same is to revert back to her nearest kin”); Methodist Protestant Church of Henderson v. Young, 130 N.C. 8, 8-9, 40 S.E. 691, 691 (1902) (deed expressed that if the church shall “discontinue the occupancy of said lot in manner as aforesaid, then this deed shall be null and void and the said lot or parcel of ground shall revert to [the grantor]”).

Id. at 372, 513 S.E.2d at 793.

Applying the aforementioned case law to the present case, the testatrix’s use of the words “live in the house” and the statement that the house is not to be used for certain purposes are not clear expressions that the property shall revert to the grantor or that the estate will automatically terminate upon the happening of those stated events. Standing alone these provisions are “precatory”8 and therefore not recognized as valid to create conditions subsequent by our Court, and considered mere surplusage, without effect. See id. at 370, 513 S.E.2d at 792-93.

The problem presented by precatory words is not new and has been employed in an endless variety of legal disputes. Brinn v. Brinn, 213 N.C. 282, 287, 195 S.E. 793, 796 (1938) suggests the following method of analysis:

Where, however, a limited estate is devised to the first taker, words of recommendation, request, entreaty, wish, or expectation addressed to the legatee or devisee will ordinarily make the first taker a trustee for the person or persons in whose favor such expressions are used, provided the testator has pointed out with sufficient clearness and certainty both the subject matter and the objects of the intended trust. Such words of recommendation or request when used in direct reference to the estate are held to be prima facie testamentary and imperative and not precatory. When accompanying a limited gift or bequest, words of request or desire or recommendation that a particular application be made of such bequest will be deemed to impose a trust upon these conditions: (a) That they are so used to exclude all option or discretion in the party who is to act, as to his acting according to them *479or not; (b) the subject is certain; and (c) the objects expressed are not too vague or indefinite to be enforced. This is particularly true when those in behalf of whom the requests are made are natural objects of the bounty of the testator and no other disposition of the remainder of the estate after the limited estate is made.

Id. (citations omitted).

Using this analysis, a directive that the life tenant must, “live” on the property is simply too vague and indefinite to be enforced. When does someone “live” on the property. Must it be her domicile? Must she register to vote there? Can she “live” in more than one place at the same time? If she lists the property for taxes or cuts standing timber, is she living on the property? The majority’s decision would seem to allow Ms. Frejlach the ability to rent the property or use it for a business and that these terms would not cause a reversion. In my opinion, the drafter of the will and the testatrix intended “living” and the incidents of “life estate” as identical in meaning and effect.

As the law does not favor restrictions on the title to land unless clearly manifested in the instrument, pursuant to long held precedent, this language should be construed to provide that Inez Hagaman has a remainder, fee simple absolute interest in the home at Ms. Frejlach’s death or if Ms. Frejlach declines to accept the devise, at which-point her interest in the home would lapse and vest in Ms. Hagaman. See Board of Education v. Edgerton, 244 N.C. 576, 94 S.E.2d 661, 664 (1956) (stating that the law does not favor restrictions on the title to land; therefore, the intention of the party to create a condition subsequent must be clearly manifested through the language of the instrument).

Finally, our Courts presume that the person drafting the will, whether an attorney or layman, knows the law and will apply the law correctly while drafting the will. Austin v. Austin, 160 N.C. 367, 368, 76 S.E. 272, 272 (1912). This will was clearly drafted by an attorney who would know how to draft a will with a reversionary clause in it.

Reading the devise in the sequence transcribed by the testatrix, it appears that Ms. Jones’s intent was merely to devise appellant Frejlach a life estate in which the testatrix desired her to live in the house. At best, the devise to appellant in Item II, paragraph (B)(6) would be defeasible only upon appellant Frejlach’s death or her declining to exercise her right to the devised property, at which point the property would vest in appellee Hagaman. As such, this language *480would essentially create a “plain vanilla” life estate, because any life estate devised is only defeasible upon the death of the life tenant or upon a devisee’s decision to renounce the estate. See N.C. Gen. Stat. § 31B-1 (2009).

The trial court’s order and the majority opinion, in lieu of declaring the rights of the parties, has the legal effect of creating right of entry language based on precatory conditions. A right of entry or reversionary language must be shown by the testator’s language in the document and cannot be inferred by the court when interpreting the document. As there is no express and unambiguous language of reversion or termination upon the breach of the stated conditions, I would reverse the trial court and hold that Ms. Jones’s will devised appellant Frejlach a life estate, and therefore I dissent from the majority opinion on this issue.

. Precatory words are those which express a request or wish rather than a positive command. In the absence of a contrary intention manifested by the testator in the will, precatory words will not be made imperative. 1 Wiggins, Wills and Administration of Estates in North Carolina § 12.6 (4th ed. 2005).