              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
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                                        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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(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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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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