An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 17 October 2006
THELMA COSTON MASON, And her
children, ROBERT M. MASON, JR.
CHERYL MASON and CYNTHIA MASON
No. 04 CVS 307
TURNER DAVIS COSTON (SENIOR) and his
daughter, RACHEL Y. COSTON,
Appeal by defendants from order entered 14 July 2005 by Judge
W. Allen Cobb, Jr., in Duplin County Superior Court. Heard in the
Court of Appeals 21 September 2006.
Ingram & Ingram, by Charles M. Ingram, for plaintiff
Hale and Harrell, by R. Kent Harrell, for defendant
Defendants appeal from an order entered granting summary
judgment declaring defendants' quitclaim deed void ab initio and
determining that defendant Rachel Coston breached her fiduciary
duty to Samuel Bert Coston pursuant to a power-of-attorney and
determining that there was no genuine issue of material fact. We
affirm the order of the superior court.
Samuel Coston drafted a will executed on 20 December 2002
containing his intentions to divide his estate after his death by
devising a 9.82-acre tract of land in Duplin County, North
Carolina, to Thelma Coston Mason and her children (hereinafter
plaintiffs). Defendant Rachel Coston was named as executor of the
On 4 September 2003, Samuel Coston appointed Rachel Coston as
his attorney-in-fact and the documents conferring such powers were
recorded with the Duplin County Register of Deeds. The power-of-
attorney generally conferred on Rachel Coston the power to act in
Samuel Coston's name and stead in matters regarding real property
and personal property transactions along with other named affairs.
Thereafter, on 8 September 2003, Rachel Coston, as attorney-in-fact
for Samuel Coston, transferred a 9.82-acre tract located in
Teachey, North Carolina, to her father, defendant Turner Davis
Coston, Sr., by quitclaim deed for the recited consideration of
$10.00 and other good and valuable consideration[.] The day
after the quitclaim deed was drafted pursuant to the power-of-
attorney, Samuel Coston passed away. Thereafter, Rachel Coston
recorded the deed to the 9.82-acre tract of land with the Duplin
County Register of Deeds on 15 September 2003. At the time of
recordation, there were no real estate excise tax stamps affixed;
however, the property records indicated that the land had a value
of $73,500.00. On 14 April 2004, plaintiffs filed suit against Turner Davis
Coston and Rachel Coston alleging breach of fiduciary duties,
fraud, constructive fraud, civil conspiracy, and seeking a
declaratory judgment to have the quitclaim deed drafted by Rachel
Coston through her power-of-attorney declared void. Subsequently,
on 31 May 2005, plaintiffs brought forth a motion for partial
summary judgment on the issues of breach of fiduciary duty and the
issuance of a declaratory judgment deeming the deed void.
On 24 August 2005 the superior court entered an order granting
plaintiff's motion for partial summary judgment as to plaintiff's
first two claims for relief, declaring the quitclaim deed void and
Rachel Coston to have breached her fiduciary duty.
Defendants now appeal.
Defendants contend on appeal that the trial court erred in
granting summary judgment in favor of plaintiffs where there was a
genuine issue of fact and plaintiffs were not entitled to judgment
as a matter of law. Specifically, defendants contend that the trial
court erred in declaring the quitclaim deed void ab initio and
declaring that defendant Rachel Coston breached her fiduciary duty
to Samuel Coston. We disagree.
We first note that on an appeal from a grant of summary
judgment, this Court reviews the trial court's decision de novo.
Falk Integrated Tech., Inc. v. Stack, 132 N.C. App. 807, 809, 513
S.E.2d 572, 574 (1999). Granting summary judgment is appropriate
only if the pleadings, depositions, answers to interrogatories,and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that any
party is entitled to a judgment as a matter of law. N.C. Gen.
Stat. § 1A-1, Rule 56(c) (2005); Petty v. Owen, 140 N.C. App. 494,
497, 537 S.E.2d 216, 218 (2000).
Defendants contend on appeal that the trial court erred in
voiding the deed executed by Rachel Coston as attorney-in-fact,
conveying the 9.82-acre tract of land and home thereon to Turner
Coston where there was a genuine issue of material fact as to
whether the deed was supported by valuable consideration. We
It is well settled that 'an attorney-in-fact acting pursuant
to a broad general power of attorney lacks the authority to make a
gift of the principal's real property unless that power is
expressly conferred . . . .' Estate of Graham v. Morrison, 156
N.C. App. 154, 158, 576 S.E.2d 355, 358 (2003)(quoting Whitford v.
Gaskill, 345 N.C. 475, 478, 480 S.E.2d 690, 692, amended on
allowance of reh'g, 345 N.C. 762, 489 S.E.2d 177 (1997)). The North
Carolina Supreme Court noted in Whitford, that while a general
power-of-attorney authorizes an agent to sell and convey property
at a price and on terms that he or she may deem proper, it also
'implies a sale for the benefit of the principal, and does not
authorize the agent to make a gift of the property, or to convey or
transfer it without a present consideration inuring to the
principal.' Whitford, 345 N.C. at 477, 480 S.E.2d at 691 (citationomitted). Such a notion is founded on the principle that an
attorney-in-fact is presumed to act in the best interest of the
principal and that gifting is inherently adverse to the interest of
such principal. Estate of Graham, 156 N.C. App. at 158-59, 576
S.E.2d at 358.
While it is true that the recital of valuable consideration
within a deed creates a presumption that such recital is correct,
the presumption is rebuttable and therefore the inquiry does not
end there. Patterson v. Wachovia Bank & Trust Co., 68 N.C. App.
609, 613-14, 315 S.E.2d 781, 784 (1984). For instance, a party may
rebut such a presumption by offering evidence which tends to show
a great disparity between the nominal amount of stated
consideration and the actual value of the property. See id.
Moreover, a presumption of consideration paid may be overcome by
the showing of an absence of revenue stamps affixed to the deed at
the time of recordation. See Burnett v. Burnett, 122 N.C. App. 712,
715, 471 S.E.2d 649, 651 (1996) (stating that evidence of a lack of
payment of excise tax is indicative of a donative intent); see also
Patterson, 68 N.C. App. at 612-14, 315 S.E.2d at 783-84 (holding
that evidence showing no revenue stamps affixed to a deed coupled
with a large disparity between the stated consideration and the
actual value of the property enough to overcome the presumption
that matters stated in the deed are true). Further, it is a long-
standing and well-recognized rule that past performance is not
valuable consideration. Estate of Graham, 156 N.C. App. at 159, 576
S.E.2d at 359. In the instant case, the document appointing Rachel Coston as
attorney-in-fact for Samuel Coston was a short-form power-of-
attorney which did not grant the specific power to gift out of the
estate. The quitclaim deed which purported to transfer title to
Turner Coston recited as consideration $10.00 and other good and
valuable consideration. A review of the depositions of Rachel and
Turner Coston reveals that Turner had, in the past, helped Samuel
with a number of things including farming, cooking and helping care
for him. The record further reveals that there were no revenue
stamps affixed to the deed at the time of recordation; however, the
property value was assessed at $73,500.00.
Where the record reveals that $10.00 and the past performance
of services by Turner Coston were relied upon as consideration for
the quitclaim deed drafted and executed by Rachel Coston, such
recitations do not convert the gift into a transfer for value. See
Patterson, 68 N.C. App. at 614, 315 S.E.2d at 784. Thus, the deed
from Rachel Coston conveying the property of Samuel Coston to
Turner Coston was a gift deed and therefore void where Rachel
Coston, as attorney-in-fact, did not possess the authority to gift
property out of the estate of Samuel Coston. See Estate of Graham,
156 N.C. App. at 159, 576 S.E.2d at 358-59.
We also note that defendants point to conversations between
Samuel Coston, the deceased, and defendants as evidence that the
deed is supported by valuable consideration. However, these
statements are barred by the Dead Man's Statute. [T]estimony of a witness is incompetent under
the provisions of the Dead Man's Statute when
it appears (1) that such witness is a party,
or interested in the event, (2) that his
testimony relates to a personal transaction or
communication with the deceased person, (3)
that the action is against the personal
representative of the deceased or a person
deriving title or interest from, through or
under the deceased, and (4) that the witness
is testifying in his own behalf or interest.
In re Will of Lamparter, 348 N.C. 45, 51, 497 S.E.2d 692, 695
(1998) (citation omitted). Where these statements are not competent
evidence, we decline to review them as supporting defendants'
contention that there was a genuine issue of material fact as to
whether there was valuable consideration for the quitclaim deed.
This assignment of error is therefore overruled.
Breach of fiduciary duty
Defendants further contend that there was a genuine issue of
material fact as to whether defendant Rachel Coston breached her
fiduciary duties imposed upon her as attorney-in-fact. We disagree.
As stated infra
, one acting as an attorney-in-fact has a
fiduciary obligation to act in the best interest of the principal
and the act of gifting out of the estate by the attorney-in-fact is
inopposite to the best interest of the principal. Whitford
N.C. at 478, 480 S.E.2d at 691-92; see also Estate of Graham
N.C. App. at 158-59, 576 S.E.2d at 358. Where we have held that the
purported deed drafted by Rachel as attorney-in-fact lacked
valuable consideration and was in fact a deed of gift, it therefore
follows that she breached her fiduciary duties imposed by the
power-of-attorney. Therefore, this assignment of error is overruled.
Accordingly, we affirm the decision of the lower court in
granting partial summary judgment, declaring the quitclaim deed
void and finding that Rachel Coston breached her fiduciary duty as
Judges WYNN and McGEE concur.
Report per Rule 30(e)
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