North Carolina Case Law Update

North Carolina Land Title Association

35th Annual Convention

September 13-15, 2012

By Chris Burti, Vice President and Senior Legal Counsel, Statewide Title, Inc.

Contents

North Carolina Supreme Court Cases ......................................................................................... 5 Reformation of a Deed ............................................................................................................ 5 Clerk of Superior Court – No Authority to Limit Attorney’s Fees in Foreclosure................. 5

North Carolina Court of Appeals Cases ...................................................................................... 6 Assessments of Pre PCA Homeowners Association Enforceable Under the Act .................. 6

Chapter 44A Liens - Implied Amendment of Pleadings; Agency; Interest ............................ 6 Summary Judgment Determining Property Line Boundary Proper ........................................ 7 Out of State Service of Process ............................................................................................... 7 Foreclosure; No Jurisdiction to Order Arbitration, Appeal Moot without Bond .................... 7

Foreclosure - Merger as Evidence Petitioner is Holder .......................................................... 8 Foreclosure - Sufficiency of Evidence of Holder Status ........................................................ 8 Foreclosure Sale 10% below FMV - No Defense to Deficiency Action ................................ 8

Foreclosure - No Judicial Notice as to Holder by Merger on Summary Judgment ................ 9 Foreclosure – Compulsory Counterclaim ............................................................................... 9

Reformation of Deed of Trust Not Permitted Against BFP .................................................... 9 Landowner Not Liable for Dangerous Condition on Adjacent Property .............................. 10 Restrictive Covenants - Enforcement Denied for Alleged Violation ................................... 10

Connor Act, Rule against Perpetuities .................................................................................. 11 Executors - No Standing to Appeal Trial Court Asset Distribution Order ........................... 12

Executors - Power of Sale ..................................................................................................... 12

North Carolina Supreme Court Cases

Reformation of a Deed

Willis v Willis, (10-1338), September 20, 2011

Gift of real property to son had unintended consequences in that it did not go to the grantee’s brother

at the grantee’s death and instead went to the grantee’s children. The mother of the two brothers was

the grantor and sought reformation.

Ordinarily, fraud or some inequitable conduct must be shown to support reformation of a deed based

upon a unilateral mistake. However, The Court of Appeals in the divided opinion of Willis v Willis,

(10-1338), September 20, 2011, relying upon language in Nelson v. Harris, 32 N.C. App. 375, disc.

rev. denied, 292 N.C. 641, (1977), ruled that when a gift is made, all that must be shown is that the

deed failed to express the actual intent of the donor. However, the Court also ruled that there was not

a scintilla of evidence of an actual mistake, reformation was not available stating: “a party’s

‘mistake[] as to the legal consequences of the deed . . . will not support reformation.’ Mims v. Mims,

48 N.C. App. 216, 218, 268 S.E.2d 544, 546 (1980)”.

The North Carolina Supreme Court stated that “the quoted statement from Nelson is nonbinding

dictum and is actually contrary to North Carolina law.” Nelson resulted from a party seeking

reformation of a deed based on mutual mistake of the parties and the court stated that the dictum was

“unsupported by precedent” and would be “of quite limited value even if it did not conflict with

previous decisions of this Court.” The Court noted that it had previously described the possible

grounds for reformation of a deed in the case of Crawford v. Willoughby, 192 N.C. 269, 134 S.E.

494 (1926). “(1) mutual mistake of the parties; (2) mistake of one party induced by fraud of the

other; and (3) mistake of the draftsman.” In Crawford, the Supreme Court explained that “mistake

of one party to the deed, or instrument, alone, not induced by the fraud of the other, affords no

ground for relief by reformation.” In this opinion the Supreme Court notes that “Crawford related to

a mistake by the draftsman, and reform was allowed on that basis, id. at 271, 134 S.E. at 495, the

three bases for reformation identified by that opinion have been cited and reaffirmed in this state

many times in various situations since 1926. E.g., Mason v. Brevoort, 254 N.C. 619, 622, 119 S.E.2d

453, 455 (1961) (citing Crawford to affirm nonsuit in a reform action when there was no evidence of

mutual mistake, unilateral mistake induced by fraud, or a mistake of the draftsman); Smith v.

Smith, 249 N.C. 669, 674, 107 S.E.2d 530, 533-34 (1959) (remaining citations omitted). There being

no record of evidence of mutual mistake, of unilateral mistake induced by fraud, or of a mistake of

the draftsman, the matter was resolved as matter of law without further discussion of evidentiary

findings by affirming and modifying the Court of Appeals.

Clerk of Superior Court – No Authority to Limit Attorney’s Fees in Foreclosure

In re Foreclosure of Vogler Realty, Inc., (11A11), January 27, 2012

The authority of the Clerk of Superior Court to determine the reasonableness of attorney's fees that

trustee-attorney in foreclosure proceeding pays to himself in addition to trustee's commission was at

issue. The Attorney/Trustee charged a trustee‘s commission of $16,813.12 (5% of the highest upset

bid) and a trustee‘s attorney‘s fee of $33,573.82 (15% of the outstanding balance on the promissory

note). There was a surplus that the fees substantially affected resulting in this litigation. The majority ruled that the foreclosure statute does not expressly authorize the clerk to review the distribution of

attorney‘s fees for reasonableness and prior opinions of the Court have consistently emphasized that

the Clerk of Superior Court has limited jurisdictional authority, having only such authority as is

given by statute.

The Supreme Court then goes on to opine that junior lien holders do not haves standing to complain

in such matters. The majority makes absolutely no recognition of its own substantial body of law

concerning the status of a trustee of a deed of trust being the legal titleholder and totally ignores its

own recognition of the U.S. Supreme Court opinion of Mennonite Bd. of Missions v. Adams, 462

U.S. 791 (1983) which held that junior lien holders have due process rights. The statutes and cases

that the opinion cites in support of this view clearly run afoul of the both the doctrine and governing

law on the subject.

The dissenting opinions are better reasoned, but also off the mark with respect to the controlling law.

North Carolina Court of Appeals Cases

Assessments of Pre PCA Homeowners Association Enforceable Under the Act

In re Five Oaks Recreational Ass'n, Inc., (11-1053) March 6, 2012

“We note the Act generally applies only to homeowners associations created on or after 1 January

1999, see id., and, according to the Declaration, Petitioner was created on or about 9 December

1975. However, some of the Act’s provisions—and the only provisions relevant to the matter sub

judice—apply regardless of the association’s date of inception.”

Chapter 44A Liens - Implied Amendment of Pleadings; Agency; Interest

Young & McQueen Grading Co. v Mar-Comm & Assocs., COA (11-1450), June 5, 2012

This was a lien enforcement case and the lender attempted to eliminate or minimize the claims of

the contractor. There were variations between the pleadings, the contract and the claim documents

arising from the fact that the LLC owned by the corporate owner of the property dealt with the

contractor. As no objection was raised at trial the pleadings were deemed implicitly amended. The

LLC was also deemed to be the agent for the owner and as the acts of an agent are the acts of the

principal, the agent’s act of contracting with the plaintiff was the owner’s act and the claim of lien

properly lists the owner as such.

The lender also contended that interest was improperly included in the judgment because “there is no

contract of any kind between [the contractors] and [the lender Defendants].” The Court of Appeals

stated that this argument was sophistic because Paving Equip. of the Carolinas, Inc. v. Waters, 122

N.C. App. 502, (1996) opined that while a judgment enforcing a lien may “generally be entered only

for the principal amount shown to be due, ‘[i]f [] there is an agreement between the parties with

regard to interest, that interest due pursuant to the agreement will be included as part of the

principal.’” The Court by reference to the Chapter 44A ruled stated the requirement of an agreement

for interest between the parties clearly refers to the agreement between the lien claimant and the

owner of the property.

Summary Judgment Determining Property Line Boundary Proper

Williamson v Long Leaf Pine, LLC, (11-634) January 17, 2012

The questioned boundary line was established in 1955 and was tied to a physical monument. The

same line was used by the North Carolina General Assembly to establish the boundary of the Town

of Sunset Beach in 1963. The line was resurveyed at least six times subsequently between 1964 and

2000 and its location was confirmed each time by being tied to the same monument. The respondent

acquired the adjoining property by deed referencing one of these surveys and acquired property

within the petitioner’s deeded property description by non-warranty deed. The sole reported

evidence presented by the respondent was an affidavit by a surveyor who had not surveyed the

property stating an opinion that the prior surveys were all in error. The trial court’s Summary

Judgment order for the petitioners was upheld in that the respondent was affirmed because: “‘When

a motion for summary judgment is made and supported as provided in this rule, an adverse party

may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as

otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for

trial.’ N.C. Gen.Stat. § 1A–1, Rule 56(e) (2011). ‘[A]n issue is genuine if it is supported by

substantial evidence, which is that amount of relevant evidence necessary to persuade a reasonable

mind to accept a conclusion.’ Liberty Mut. Ins. Co. v. Pennington, 356 N.C. 571, 579, 573 S.E.2d

118, 124 (2002) (quotations and citations omitted). It means ‘more than a scintilla or a permissible

inference.” DeWitt v. Eveready Battery Co., 355 N.C. 672, 681, 565 S.E.2d 140, 146 (2002)

quotations and citation omitted).”

Out of State Service of Process

Beatty v Greenfield, (11-1086), March 20, 2012

This was a paternity case, but the opinion is important in title litigation. When the title to real

property results from a judicial decree, the title examiner will be required to review the court file in

order to determine whether the proceeding was proper. Adequate service on all necessary parties is

absolutely necessary to establish one of the jurisdictional elements required for the decree to be

effective. Rule 4(a) of the NCRCP states that when service is made outside of North Carolina, the

process server must be (1) “anyone who is not a party and is not less than 21 years of age” or (2)

“anyone duly authorized to serve summons by the law of the place where service is to be made.”

N.C.G.S. Section 1-75.10(a)(1)(b) that when a defendant is personally served out of state, proof of

service may be established by an affidavit executed by the process server. That affidavit must

Show the process server’s “qualifications to make service under Rule 4(a) or Rule 4(j3) of the Rules

of Civil Procedure.” And these qualifications may be established according to the proof of service

rules of the jurisdiction where service was made. It may be necessary to review those rules if service

is by someone other than a state official of that jurisdiction. Fortunately, this information is now

readily available on line.

Foreclosure; No Jurisdiction to Order Arbitration, Appeal Moot without Bond

In re Foreclosure of Cornblum, (11-534) April 17, 2012

The Superior Court ordered arbitration in foreclosure proceeding on appeal from the Clerk of

Superior Court. The narrow scope of the statutory foreclosure by power of sale hearing imposes a

jurisdictional restriction on the Clerk of Superior Court and the Superior Court on appeal to making

the findings contained in N.C.G.S. Section 45-21.16(d). The Clerk’s decision may be appealed to the

Superior Court for a de novo hearing and per N.C.G.S. Section 1-292, an appeal from the Superior

Court does not stay the court’s order unless the appellant posts an appeal bond. See In re Hackley,

COA 10-757, ___ N.C. App. __, disc. review denied and review denied as moot, __ N.C. __, (2011).

Foreclosure - Merger as Evidence Petitioner is Holder

In re Carver Pond I, (11-367), December 6, 2011

Here, evidence of the note holder status of the petitioner was challenged. The record on appeal

contains three documents which evidence the merger between the final assignee, as reflected by the

record, LaSalle Bank National Association (“LaSalle”) and Bank of America. An Affidavit of

Noteholder executed by the servicer, a certified statement from the assistant secretary of Bank of

America and a letter from the Comptroller of the Currency Administrator of National Banks

officially certifying that LaSalle merged with Bank of America and authorizing Bank of America “to

operate the former main and branch offices of LaSalle” as “branches of Bank of America[.]”

The Court concluded that the three documents were sufficient evidence of the merger between

LaSalle and Bank of America. The respondent did not dispute the fact of the merger, merely the

evidence of it and the effect as to whether the Loan Documents were transferred from LaSalle to

Bank of America. Citing Econo-Travel Motor Hotel Corp. v. Taylor, 301 N.C. 200, (1980), the

Court of Appeals held that “Bank of America, as the surviving corporation after the merger,

succeeded by operation of law to LaSalle’s status as owner and holder of the Loan Documents. The

Econo-Travel Court is quoted: “if the alleged merger had occurred, then plaintiff, as the surviving

corporation, would have succeeded by operation of law to Econo-Travel Corporation’s status as

owner and holder of the promissory note”. This panel thus determined that the evidence of the

merger between LaSalle and Bank of America was competent evidence that Bank of America is the

holder of the Loan Documents.

Foreclosure - Sufficiency of Evidence of Holder Status

In Re Foreclosure of Yopp, (11-753), December 20, 2011

This opinion was the mirror image of the outcome of In re Adams, __ N.C. App. __, 693 S.E.2d

705 (2010) with this panel of the Court of Appeals determining that the non-challenged evidence

was sufficient to support the trial court’s foreclosure order. Here, merger evidence was again

challenged and internet printouts of merger were ruled inadmissible, however an unchallenged

document also stated the merger history and the court found that sufficient.

Foreclosure Sale 10% below FMV - No Defense to Deficiency Action

Blue Ridge Sav. Bank, Inc. v Mitchell, (11-289) February 7, 2012

The admissible evidence in this case suggested that the lender’s bid at the foreclosure sale might

have been approximately 10 percent below FMV. The Court of Appeals notes that North Carolina

appellate courts have not set out particular guidelines as to what “substantially less” than the

property’s true value means entitling an owner to the deficiency defense set out in N.C.G.S. Section

45-21.36. However, First Citizens Bank & Trust Co. v. Cannon, 138 N.C. App. 153, (2000) affirmed

a judgment that a bid that was twenty percent less than the appraised value of the property was

“substantially less” than the property’s true value and that the debtors in that case were entitled to

the defense.

The Court of Appeals stated that although “the twenty percent mark is not a bright line rule or

cut-off by any interpretation, defendants offer no authority (including any reference to Cannon)

supporting their assertion that the bid was substantially less than the true value or fair market value

of the property; indeed, the argument is based merely on the fact that both the appraised value and

the subsequent sale price were more than the bid.” As the statutory requirement is that the “bid be

“substantially less” than true value, not just “less” than true value, and because defendants have

offered no authority or cogent argument supporting their claim that plaintiff’s bid was substantially

less than the property’s true value, we affirm the order of the trial court.”

Foreclosure - No Judicial Notice as to Holder by Merger on Summary Judgment

TD Bank, N.A. v Mirabella, (11-1178), March 20, 2012

Note holder was alleged to be owner of note as the result of a merger. The Court of Appeals ruled

that the bank was not so well known as to provide judicial notice, nor were copies of South Carolina

Secretary of State online records sufficient for judicial notice. Summary Judgment was not proper

and the case was remanded for proper proof and findings.

Foreclosure – Compulsory Counterclaim

In re Draffen, (11-1403), August 7, 2012

The respondent and numerous other plaintiffs initiated a civil action seeking damages against several

of lenders, developers, marketing firms, appraisers, and others in the United States District Court for

the Eastern District of North Carolina alleging participation a fraudulent scheme in connection with

the Cannonsgate development and the petitioner was one of the defendants. The respondent

defaulted in payment and the petitioner foreclosed. A stay of the foreclosure was granted and

subsequently lifted and the respondent appealed the order lifting the stay.

The Court of Appeals determined that under the federal rules of procedure, the petitioner was not

required to pursue the foreclosure action as a compulsory counterclaim in the federal action, that

N.C. Gen. Stat. § 1A-1, Rule 13(a) does not control and that the foreclosure could not be stayed on

that basis. The superior court properly lifted the stay, dismissed respondent’s appeal of the Clerk’s

order, and allowed the foreclosure to proceed.

Reformation of Deed of Trust Not Permitted Against BFP

Branch Banking & Trust Co. v Teague, (11-787), March 20, 2012

The lender plaintiff refinanced existing mortgage loans and the deed of trust only secured a small

vacant portion of the two tracts composing the debtor’s residence property. The debtors deeded both

tracts to the defendant judgment creditors subject to the deed of trust in exchange for a reduction in

the judgment debt. The lender sought reformation and an equitable lien superior to the interest of the

defendant creditors. The reduction in the amount of the judgment “constituted the provision of

valuable consideration in return for the underlying transfer, since a grantor who cancels or reduces a

grantee’s preexisting debt in exchange for a deed is a bona fide purchaser for value. See Sansom v.

Warren, 215 N.C. 432, 436, 2 S.E.2d 459, 461 (1939).” In a divided opinion the Court of Appeals

affirmed that “reformation of a deed of trust based upon a mutual mistake or the imposition of an

equitable lien or parol trust will not be allowed to prejudice the rights of a bona fide purchaser for

value…” However, the Court remanded directing the trial court to determine “whether Defendants

would be prejudiced by reformation of the deed” as a genuine issue of precluding summary

judgment on the issue. The majority opined that if the defendants accounted for the mortgage

balance in determining the value assigned to the reduction in the judgment debt, there might be no

‘prejudice’. Implicit in the remand is that reformation would be allowed to relate back if found

appropriate and if not prejudicial to the defendants. The dissenting opinion disagreed with the

remand and considered any reformation prejudicial to the interest. “This argument, which the Court

obviously accepts, does not rest upon a comparison between the nature and extent of Defendants’

legal rights with or without reformation of the deed of trust. Instead, the Court appears to compare

the economic effect of reformation with Defendants’ subjective expectations regarding the economic

value of the bargain they made with the [Defendant Owners]. Put another way, the Court,

consistently with Plaintiff’s argument, assumes that, if the amount of the debt owed by the

[Defendant Owners] to [Plaintiff] was utilized in calculating the amount of credit which the

[Defendant Owners] were entitled to receive against the [Defendant Creditors] judgment in return

for deeding the entire parcel to the [Defendant Creditors], then the [Defendant Creditors] would be

unable to show the necessary prejudice.

Landowner Not Liable for Dangerous Condition on Adjacent Property

Lampkin v Hous. Mgmt. Res., Inc., (11-1062), May 15, 2012

A four-year old child was playing on an apartment complex common area playground when she

passed through a broken portion of a chain-link fence owned by the apartment complex to play on a

frozen pond on adjacent property. The ice broke; the child fell into the water and sustained

permanent brain injury. It was also alleged that the owner of the adjacent property previously

notified the complex that “children were coming through the fence onto her property” and that she

“was concerned someone would get hurt,” that an apartment complex employee told her that “they

would look into the matter.”

The Court with appropriate citation stated: “In our view, the foregoing authority clearly establishes

that a landowner’s duty to keep property safe (1) does not extend to guarding against injuries caused

by dangerous conditions located off of the landowner’s property, and (2) coincides exactly with the

extent of the landowner’s control of his property. As such, because Defendants did not control the

pond on the adjacent property, their duty to keep their premises safe did not include an obligation to

make the pond safe by preventing children on their land from accessing the pond. Rather, the

adjacent landowner, with exclusive control over the pond, had the sole duty to keep the pond safe,

the only obligation to act, and the only possible liability.”

Restrictive Covenants - Enforcement Denied for Alleged Violation

Sanford v Williams, COA (11-1066) June 5, 2012

Restrictive covenants included a provision stating:

4. All lots in said subdivision as shown on said plat shall be used for residential purposes. No

buildings shall be erected, altered, placed or permitted to remain on any lot other than one detached

single family dwelling not to exceed two and one-half stories in height and a private garage which

may have as a part of said garage, a storage room.

Defendant built a carport and built it within the side minimum setback. The plaintiff contended that

the carport is not a “garage” as described in paragraph 4 and is prohibited by the restrictive

covenants unless it is part of the “single family dwelling[.]” The defendants contended that the

carport is a “garage”, or that it is a permitted auxiliary structure and the Court of Appeals agreed.

“In interpreting ambiguous terms in restrictive covenants, the intentions of the parties at the time the

covenants were executed ordinarily control, and evidence of the situation of the parties and the

circumstances surrounding the transaction is admissible to determine intent.” Angel v. Truitt, 108

N.C. App. 679, 681, 424 S.E.2d 660, 662 (1993) (citation and quotation marks omitted).”

The Court observed that the restrictive covenants did not define the terms “carport” or “garage”;

however, both terms are listed as types of auxiliary structures to the single family Residence in

Paragraph 8 which provides as follows:

8. That no single-family residence having less than 1,400 square feet of heated floor space exclusive

of garage, carport, basement, or other auxiliary structure shall be erected on the lot. Any residence

having living quarters of more than one floor must contain at least 1,000 square feet of heated floor

space on the principal floor and a total of not less than 1,800 square feet of heated floor space

exclusive of garage, carport, basement, or other auxiliary structure.

The Court went on to support the interpretation of the covenant with an extensive dictionary analysis

of the term. Thought it would seem that the Paragraph 8 creates its own definition without

ambiguity. The plaintiff also contended that the carport violates the restriction tin Paragraph 9 that

all homes constructed shall be at least “ten (10) feet from either side property line. The defendants

contended that the term “home” in Paragraph 9 refers only to the “dwelling place” and does not

include the carport and again, the Court of Appeals agreed with them.

“The restrictive covenants do not specifically define ‘home’; however, several paragraphs treat a

‘single family dwelling’ or ’residence’ separately from a ‘garage’ or ‘carport[.]’ Paragraph 4 states

that the only buildings permitted on a subdivision lot are “one detached single family dwelling” and

‘a private garage[.]’”

Connor Act, Rule against Perpetuities

New Bar P'ship v Martin, (12-64), June 19, 2012

Charlie Goodnight’s, Inc. (“CGI”) leased the property in dispute from Martin in 1988 pursuant to a

written lease agreement with a term that ran from December 1988 through December 1993 and it

included an option to renew for three additional five-year terms. The lease also provided CGI an

option to purchase during the term of the lease and a right of first refusal during any subsequent five-

year renewal term. In 1989 the parties agreed to an amendment providing for the execution of a

memorandum of the lease for the purpose of recording; however none of these or any subsequent

lease documents were recorded. CGI subsequently assigned the lease to New Bar with lessor’s

approval.

In 1999 the parties executed an amendment extending the renewal rights for two additional 5-year

terms until December 2018. In 2002 the parties executed a third amendment to the initial lease,

purporting to extend the right to renew by another two five-year terms, to run through 14 December

2028. In 2004 the lessor transferred the property to an inter vivos trust with his son as the trustee

without consideration. An LLC was formed with the son as manager and the property was

transferred to the LLC for $10 in consideration. The LLC contracted with a third party for a sale of

the property and a memorandum of contract was recorded.

The lessee sued for declaratory relief which complaint was dismissed on several grounds two are of

particular significance to property practitioners. The Court of Appeals cites Smith v. Mitchell, 301

N.C. 58, (1980) as establishing the rule that “preemptive provisions which are unreasonable are void

as imposing impermissible restraints on alienation[,]” and “The general rule is that as long as the

price provision in a preemptive right provides that the price shall be determined either by the

marketplace or by the seller’s desire to sell, a preemptive right is reasonable if its duration does not

violate the rule against perpetuities.” The Court of Appeals noted that the “Court resolved that ‘the

better rule is to limit the duration of the right to a period within the rule against perpetuities and thus

avoid lengthy litigation over what is or is not a reasonable time within the facts of any given case.’”

The Court of Appeals further ruled the provisions of N.C.G.S. Section 41-18 did not apply to non

donative transfers such as this lease. Nor did the statute’s exclusions apply to commercial leases and

further that as the statute did not apply, the common law rule was not abolished by the adoption of

the statute to the extent the statute did not apply to such transfers and that the common law is still in

effect. The Court’s analysis is a bit circuitous, but likely correct in this context.

The Court also ruled that the protections of the recording acts were afforded the vendee. While the

transfers to the trust and to the LLC may not have been protected by the Connor Act, there was no

forecast of evidence in the facts as reported to suggest that the vendee participated in wrongful acts

that would give rise to findings of fraud or estoppel. On that narrow point the case appears to have

been properly decided.

Executors - No Standing to Appeal Trial Court Asset Distribution Order

Bigger v. Arnold, COA (11-1604) July 17, 2012

Question arose as to the pre death distribution of the bulk of the decedent’s assets into a joint and

survivor account with surviving spouse which essentially excluded the charitable trust beneficiary.

Executor sought guidance from the court as to the validity of the transfer, the charitable beneficiary

did not contest and the court ruled in favor of the spouse. As the Personal Representative has no

interest in the outcome of a controversy regarding the distribution of the assets. “Where there is a

controversy between legatees under a will, in which controversy the executor, as such, has no

interest, such executor is not a party aggrieved by a decree of distribution and may not appeal

therefrom.” Dickey v. Herbin, 250 N.C. 321, 326, 108 S.E.2d 632, 636 (1959); see also Ferrell v.

Basnight, 257 N.C. 643, 645, 127 S.E.2d 219, 221 (1962) (ruling that an executor cannot appeal

from a decision affecting the rights of the beneficiaries).

Executors - Power of Sale

Collier v Bryant, (10-1579), November 1, 2011

Where the testator’s Will first directs the Personal Representative to sell property and then provides

that the devisees may take in fee if they can unanimously agree, there is not a devise to the heirs and

the Personal Representative has the power to sell although the deed is voidable if in derogation of

the Personal Representative’s fiduciary duty.