IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-1287
Filed: 5 September 2017
Jackson County, No. 14 CVS 687
LINNIE PRICE RUTLEDGE and husband CHARLES RUTLEDGE, Plaintiffs,
v.
LISA VIELE FEHER, MARSHA VIELE, DAVID VIELE JR., and wife RACHEL
VIELE, BEAU SKINNER and wife, JOSEFINA SKINNER, BRIDGETT SKINNER
OTERO and husband, JEHIELL OTERO and HELEN VIELE PRICE and husband,
GEORGE PRICE, LISA A. ADAMS and husband, CHRISTOPHER ADAMS,
PRANTAWAN JUSEE, and BOB J. HOWELL, Successor Trustee of the Dwight A
Viele, Sr. Revocable Trust U/A/D July 28, 2010, Defendants.
Appeal by Defendants David Viele, Jr. and wife, Rachel Viele; Beau Skinner
and wife, Josefina Skinner; and Bridgett Skinner Otero from judgment entered 21
September 2016 by Judge Alan Z. Thornburg in Jackson County Superior Court.
Heard in the Court of Appeals 24 May 2017.
McLean Law Firm, P.A., by Russell L. McLean, III, for Defendants-Appellants.
Scott Taylor, PLLC, by J. Scott Taylor, for Plaintiffs-Appellees.
MURPHY, Judge.
This case involves a general warranty deed conveying a life estate to the
grantors’ children and a future interest to certain of the grantors’ grandchildren. One
of the grantors’ grandchildren, Linnie Price Rutledge, and her husband, brought this
action, seeking a declaratory judgment as to their rights and interest in the subject
RUTLEDGE V. FEHER
Opinion of the Court
property and an injunction prohibiting Defendants from transferring any ownership
interest they have in the property.
Based on the language of the deed at issue, the trial court concluded that
Plaintiff Linnie Price Rutledge and Defendant Lisa Viele Feher both hold a
contingent remainder interest in the property. Further, the trial court concluded
that the class of grandchildren will not close and cannot be determined until the death
of Helen Viele Price, nor can the individuals in which the remainder interest vests be
determined until the death of Helen Viele Price.1 After careful review, we affirm the
trial court’s decision.
Background
C.E. Viele and his wife Margaret Viele (collectively, the “Vieles”) owned land
in Jackson County (the “Property”). They had four children together: Dwight Allen
Viele (“Dwight”), Charles E. Viele, Jr. (“Charles”),2 Richard E. Viele (“Richard”), and
Helen Viele Price (“Ms. Price”). The Vieles also had several grandchildren. Dwight
had four children: Dwight Viele, Jr., David Viele, Sr., Terry Viele Skinner, and Lisa
1 Helen Viele Price passed away between the entry of the trial court’s judgment and the filing
of the briefs to this Court.
2 Charles died in 1989 without marrying or having children.
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Opinion of the Court
Viele Feher (“Lisa”).3 Richard had two children: Debra Viele and Richard Viele, Jr.4
Ms. Price had one child: Linnie Price Rutledge (“Linnie”).
On 12 October 1983, the Vieles executed a North Carolina General Warranty
Deed (the “Deed”) to the Property in which they retained a life estate for themselves
and conveyed a life estate to their four children as well as a fee simple remainder
interest to their grandchildren. In pertinent part, the precise language of the Deed
reads:
That [the Vieles] . . . have given, granted, bargained, sold
and conveyed and by these presents do hereby give, grant,
bargain, sell and convey unto [Dwight, Ms. Price, Charles,
and Richard], subject to the exceptions, reservations and
restrictions, if any, and together with any rights-of-way, if
any, hereinafter state, a life estate, said life estate to
continue until the death of the last survivor of the four
above-named children; and upon the death of the last of the
four above-named children, fee simple title is to vest in our
grandchildren, the living issue of the four above-named
children, all of that certain piece, parcel or tract of land,
situate[d], lying and being in Jackson County, North
Carolina, but reserving, however, unto Grantors, a Life
Estate in said lands . . . .
(Emphasis added).
3
Dwight died in 2011, and he was preceded in death by his son, Dwight Viele, Jr., who passed
away in 1996 with no surviving spouse or children. David Viele, Sr., has since passed away and was
survived by his wife, Marsha Viele, and his two children – David Viele, Jr., and Lisa Viele Adams.
Terry Viele Skinner passed away in 2014, and she was survived by two children – Beau Skinner and
Bridgett Skinner.
4 Before Richard died, he and his two children executed and recorded a quitclaim deed
conveying any potential interest he had in the Property to his remaining siblings.
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Opinion of the Court
At the time of execution of the Deed, all seven of the named children and
grandchildren were alive. According to Appellants’ brief, C.E. Viele died in 1987 and
Margaret Viele died in 2002.
Linnie and her husband, Charles Rutledge, (collectively, “Plaintiffs”)
commenced this action on 24 November 2014, seeking declaratory judgment and
injunctive relief. Specifically, Plaintiffs sought a declaration of the parties’ respective
rights and obligations in the Property pursuant to the Deed, and they contended that
“they are the persons with who[m] title vests upon the passing of Helen Viele Price.”
Accordingly, they requested that the trial court enjoin Defendants from transferring
any ownership rights or interest in the Property. At the time, Ms. Price was the only
living child of the Vieles, and Linnie and Lisa were their only living grandchildren.
David Viele, Jr., Lisa Viele Adams, Beau Skinner, and Bridgett Skinner Otero were
living great-grandchildren of the Vieles.
Plaintiffs filed an amended complaint on 18 February 2015, adding several
parties not involved in the instant appeal.5 In March of 2015, Ms. Price conveyed her
life estate interest to Linnie. On 15 October 2015, Defendants David Viele, Jr., and
5 Plaintiff brought this action against:
“Lisa Viele Feher, Marsha Viele, David Viele, Jr. and wife, Rachel
Viele, Beau Skinner and wife, Josefina Skinner, Bridgett Skinner
Otero and husband, Jehiell Otero, Helen Viele Price and husband,
George Price, Lisa A. Adams and husband, Christopher Adams,
Prantawan Jusee, and Bob J. Howell, Successor Trustee of the Dwight
A. Viele, Sr. Revocable Trust U/A/D July 28, 2010 [collectively,
“Defendants”].”
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Opinion of the Court
his wife, Rachel Viele, Beau Skinner and his wife, Josefina Skinner, and Bridgett
Skinner Otero (collectively, “Appellants”) and husband, Jehiell Otero, filed an
answer. The remaining Defendants did not respond and default judgments were
entered against them.
The matter was scheduled for a non-jury trial and the participating parties
entered 20 stipulations of fact to narrow the issues before the trial court. After
considering the pleadings, stipulations, and the Deed, the trial court concluded:
1. Lisa Viele Feher and Linnie Price Rutledge each
hold a contingent remainder interest in the subject
property.
2. The class of grandchildren will not close and cannot
be determined until the death of Helen Viele Price.
3. The individuals in which the remainder interest
vests cannot be established until the death of Helen Viele
Price.
Appellants timely appealed.
Analysis
Appellants raise three issues on appeal: (1) whether the trial court erred in
determining Linnie and Lisa hold a contingent remainder interest in the Property
rather than a vested remainder subject to open or partial divesture; (2) whether the
trial court erred in determining that the class of grandchildren cannot be determined
until the death of Ms. Price; and (3) whether the trial court erred in determining that
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Opinion of the Court
the individuals in which the remainder interest vests cannot be determined until the
death of Ms. Price. As each of these issues overlap, we discuss them collectively.
We review a judgment entered after a non-jury trial to determine “whether
there is competent evidence to support the trial court’s findings of fact and whether
the findings support the conclusions of law and ensuing judgment.” Sessler v. Marsh,
144 N.C. App. 623, 628, 551 S.E.2d 160, 163, disc. review denied, 354 N.C. 365, 556
S.E.2d 577 (2001)). In the instant case, neither party disputes the findings of fact
made by the trial court, and, accordingly, they are binding on appeal. Cape Fear
River Watch v. N. Carolina Envntl. Mgmt. Cmm’n, 368 N.C. 92, 99, 772 S.E.2d 445,
450 (2015) (quotation omitted). “Conclusions of law are reviewed de novo and are
subject to full review.” State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011);
see also Carolina Power & Light Co. v. City of Asheville, 358 N.C. 512, 517, 597 S.E.2d
717, 721 (2004) (“Conclusions of law drawn by the trial court from its findings of fact
are reviewable de novo on appeal.” (emphasis omitted)).
The outcome of the instant matter hinges on interpreting the language of the
Deed, and therefore our analysis is rooted in the canons of construction outlined by
our state’s jurisprudence. In construing written conveyances of property, the court
ultimately endeavors to determine and effectuate the intent of the parties based on
the written language they used. Strickland v. Jackson, 259 N.C. 81, 83, 130 S.E.2d
22, 24 (1963); see also Mercer v. Downs, 191 N.C. 203, 205, 131 S.E. 575, 576 (1926)
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Opinion of the Court
(holding that “the intent of the testator is paramount”). Explained more broadly by
our Supreme Court nearly a century ago:
Whatever the technicalities of the law may formerly have
required in the construction of deeds, the modern doctrine
does not favor the application of such technical rules as will
defeat the obvious intention of the grantor—not the
unexpressed purpose which may have existed in his mind,
of course, but his intention as expressed in the language he
has employed; for it is an elementary rule of construction
that the intention of the parties shall prevail, unless it is
in conflict with some unyielding canon of construction or
settled rule of property, or is repugnant to the terms of the
grant. Such intention as a general rule must be sought in
the terms of the instrument; but if the words used leave the
intention in doubt, resort may be had to the circumstances
attending the execution of the instrument and the
situation of the parties at that time . . . .
Seawell v. Hall, 185 N.C. 80, 82, 116 S.E. 189, 190 (1923) (emphasis added). Our
Supreme Court also guided that, ordinarily, to construe a deed and determine the
parties’ intention, a court gathers the intention “from the language of the deed itself
when its terms are unambiguous. However, there are instances in which
consideration should be given to the instruments made contemporaneously
therewith, the circumstances attending the execution of the deed, and to the situation
of the parties at the time.” Smith v. Smith, 249 N.C. 669, 675, 107 S.E.2d 530, 534
(1959)
On that basis, if “[t]he language of the deed [at issue is] clear and unequivocal,
it must be given effect according to its terms, and we may not speculate that the
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Opinion of the Court
grantor intended otherwise.” Cty. of Moore v. Humane Soc’y of Moore Cty., Inc., 157
N.C. App. 293, 298, 578 S.E.2d 682, 685 (2003) (citations and internal quotation
marks omitted). “We must, if possible without resorting to parol evidence, determine
the grantors’ intent based on the four corners of the deed.” Simmons v. Waddell, 241
N.C. App. 512, 524, 775 S.E.2d 661, 674 (2015) (citation omitted). Language that is
otherwise clear will not be disturbed by punctuation; however, punctuation may be
considered in deriving the intent of the parties. Stephens Co. v. Lisk, 240 N.C. 289,
293, 82 S.E.2d 99, 102 (1954) (citations omitted).
Appellants contend that, as heirs of the Vieles’ son Dwight, the Deed conveyed
to them a vested remainder subject to partial divestment by after-born children
rather than a contingent remainder interest at the moment of its creation. Their
argument rests on Buchanan v. Buchanan, 207 N.C. App. 112, 698 S.E.2d 485 (2010),
in which this Court stated,
[A] remainder is vested, when, throughout its continuance,
the remainderman and his heirs have the right to the
immediate possession whenever and however the
preceding estate is determined; or, in other words, a
remainder is vested if, so long as it lasts, the only obstacle
to the right of immediate possession by the remainderman
is the existence of the preceding estate; or, again, a
remainder is vested if it is subject to no condition precedent
save the determination of the preceding estate.
Id. at 118, 698 S.E.2d at 489 (citation omitted). Accordingly, Appellants claim that
the Vieles’ seven then-living grandchildren obtained a vested remainder subject to
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Opinion of the Court
open or partial divesture at the moment of the Deed’s execution and that the class of
grandchildren intended to take pursuant to the Deed was therefore immediately
ascertainable.
Plaintiffs counter that the plain language of the Deed instructs that title shall
not vest in any grandchildren until the death of the last of the Vieles’ children. To
conclude that title vests at any point prior to the death of the last of the Vieles’ living
children would blatantly disregard the grantors’ intent as expressed in the Deed.
Furthermore, because title cannot vest until the last of the Vieles’ children dies, the
Vieles’ living grandchildren have only a contingent remainder interest in the
Property as they must outlive the last of the living children in order for their title to
the Property to vest.
Hence, the dispute is whether the grandchildren’s interest is vested or
contingent.
The distinction between a vested and a contingent
remainder is the capacity to take upon the termination of
the preceding estate. Where those who are to take in
remainder cannot be determined until the happening of a
stated event, the remainder is contingent. Only those who
can answer the roll immediately upon the happening of the
event acquire any estate in the properties granted.
Strickland, 259 N.C. at 84, 130 S.E.2d at 25 (citing Wimberly v. Parrish, 253 N.C.
536, 117 S.E.2d 472 (1960); Parker v. Parker, 252 N.C. 399, 113 S.E.2d 899 (1960);
Wachovia Bank & Trust Co. v. Schneider, 235 N.C. 446, 70 S.E.2d 578 (1952))
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Opinion of the Court
(citations omitted); see also Hollowell v. Hollowell, 107 N.C. App. 166, 174, 420 S.E.2d
827, 832 (1992) (“The triggering event for the passage or vesting of the contingent
remainder in this case is the death of each of the two life tenants.” (citation omitted)).
As outlined at length above, our ultimate objective in construing a deed is to
effectuate the intent of the grantor as expressed through the language of the deed
itself, and, in this case, the Vieles plainly stated their desire that “upon the death of
the last of the four above-named children, fee simple title is to vest in our
grandchildren, the living issue of the four above-named children.” Based on this
language, it is clear that this is the type of case “[w]here those who are to take in
remainder cannot be determined until the happening of a stated event” – the death
of the last of the Vieles’ children.6 If a particular grandchild fails to survive the last
of the Viele children, he does not take of the Property according to the express terms
of the Deed. For that reason, the trial court correctly determined that Linnie and
Lisa have contingent remainders, and we therefore affirm as to this issue.
6 We acknowledge our state Supreme Court’s long-held precedent that, “where an estate is
granted to one for life, and to such of his children as should be living after his death, a present right
to future possession vests at once in such as are living, subject to open and let in after-born children,
and to be divested as to those who shall die without issue.” Starnes v. Hill, 112 N.C. 1, 12, 16 S.E.
1011, 1014 (1893) (citation omitted). However, the Deed in this case is distinguishable as it did not
simply convey the Property to the Viele’s children for life, and then to such of the Vieles’ grandchildren
as should be living after the death of the last Viele child. Instead, as we have explained, the explicit
language chosen by the Vieles declares that title is not to vest until the specified triggering event.
Therefore, Starnes is inapplicable as it is in contravention of the Vieles’ intent. See Croxall v. Shererd,
72 U.S. (5 Wall.) 268, 287, 18 L. Ed. 572, 579 (1866) (holding that a remainder will not be deemed
contingent “when, consistently with the intention, it can be held to be vested” (emphasis added)).
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Opinion of the Court
In regard to the overlapping second and third issues, our conclusion as to
Linnie’s and Lisa’s contingent remainders dictates the outcomes of those issues as
well. As Linnie’s and Lisa’s remainders are contingent, they do not vest until the
happening of a triggering event. See Strickland, 259 N.C. at 84, 130 S.E.2d at 25
(recognizing that remainders are contingent if the remaindermen cannot be
determined until the happening of a specified event). In this case, the language of
the Deed specifies both when the class of remaindermen is to be identified and when
title to the Property vests in those remaindermen. Specifically, the Deed pronounces,
“and upon the death of the last of the four above-named children, fee simple title is to
vest in our grandchildren, the living issue of the four above-named children[.]”
(Emphasis added).
A plain reading of this text requires that the class of remaindermen will consist
of the then-living grandchildren upon the death of the last surviving child, who we
now know was Ms. Price, and that title to the Property vests in those grandchildren
“upon the death” of that last surviving child. As such, we cannot conclude, as
Appellants urge, that the trial court erroneously concluded “[t]he class of
grandchildren will not close and cannot be determined until the death of Helen Viele
Price,” and “[t]he individuals in which the remainder interest vests cannot be
established until the death of Helen Viele Price.” Accordingly, we also affirm as to
these issues.
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Opinion of the Court
Conclusion
For the reasons stated above, the trial court correctly concluded: (1) Lisa Viele
Feher and Linnie Price Rutledge each hold a contingent remainder interest in the
subject property; (2) the class of grandchildren will not close and cannot be
determined until the death of Ms. Price; and (3) the individuals in which the
remainder interest vests cannot be established until the death of Ms. Price.
Accordingly, we affirm the trial court’s ruling.
AFFIRMED.
Chief Judge McGEE and Judge DIETZ concur.
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