NO. COA06-323
NORTH CAROLINA COURT OF APPEALS
Filed: 17 October 2006
PATRICIA SUSIE CHURCH, DWIGHT
TIMOTHY BARE, and JACQUELINE
ATWOOD, DAVID RAY BARE,
Plaintiffs,
v. Ashe County
No. 04 CVS 430
RICHARD R. BARE, JERRY L. BARE,
DONALD BARE, JR., DANNY JOE BARE,
and GLORIA VOSS,
Defendants.
Appeal by defendants from a declaratory judgment entered 1
November 2005 by Judge L. Todd Burke in Ashe County Superior Court.
Heard in the Court of Appeals 20 September 2006.
Sherrill and Cameron, Attorneys at Law, by Carlyle Sherrill
for plaintiff-appellees.
Sherrie R. Hodges, Attorney at Law, PLLC, for defendant-
appellants.
BRYANT, Judge.
Richard R. Bare, Jerry L. Bare, Donald Bare, Jr., Danny Joe
Bare, and Gloria Voss (defendants) appeal from a declaratory
judgment entered 1 November 2005, which detailed the manner in
which certain real estate was to be partitioned between defendants
and Patricia Susie Church, Dwight Timothy Bare, Jacqueline
Atwood, and David Ray Bare (plaintiffs). For the reasons stated
herein, we affirm the trial court's order.
Facts
Dessie Raye Bare (the testatrix) died on 6 February 2002,leaving a will that provided, in pertinent part:
I will and devise all of my real property,
subject to the conditions here and after set
out, in equal share, in fee simple, to Donald
Carl Bare, Richard Raye Bare, and Jerry Lewis
Bare. This devise of my real property as set
out above is subject to the condition that the
following payments be made by the said
Devisees of my real property, said payments to
be made on or before two (2) years after my
death:
1. The sum of ten thousand ($10,000.00)
Dollars in cash to my daughter, Gloria Irene
Voss.
2. The sum of ten thousand ($10,000.00)
Dollars in cash to my daughter, Peggy
Jacqueline Bare Atwood.
3. The sum of two thousand five hundred
($2,500.00) Dollars in cash to my
granddaughter, Susie Bare Church.
4. The sum of two thousand five hundred
($2,500.00) Dollars in cash to my grandson,
Danny Joe Bare.
5. The sum of two thousand five hundred
($2,500.00) Dollars in cash to my grandson,
David Ray Bare.
6. The sum of two thousand five hundred
($2,500.00) Dollars in cash to my grandson,
Dwight Timothy Bare.
On 25 August 2004, a Complaint for Declaratory Judgment was filed
in Ashe County Superior Court on behalf of plaintiffs. Plaintiffs
sought a declaration from the trial court as to their own rights
and the rights of defendants in the real property named in the
testatrix's will. On 1 November 2005, the trial court entered an
order instructing the Clerk of Superior Court of Ashe County to
partition the realty in question among the parties in accordancewith the rules of intestate succession. It is from this order that
defendants appeal.
_________________________
Defendants present a single issue on appeal: whether
conclusions of law made by the trial court were supported by the
court's findings of fact or by the evidence presented at trial.
We note at the outset that defendants fail to make specific
exceptions to any of the trial court's findings of fact, choosing
instead to make a general exception to several of the court's
conclusions of law. Absent specific exceptions to findings of
fact, this Court's review is limited to a determination of whether
the trial court's findings of fact support its conclusions of law.
Woodring v. Woodring, 164 N.C. App. 588, 590, 596 S.E.2d 370, 372
(2004). We therefore need look no further than the findings of
fact in determining whether the trial court's conclusions of law
were proper.
The declaratory judgment at issue here may be reviewed in the
same manner as other judgments.
Cumberland Homes, Inc. v. Carolina
Lakes Prop. Owners' Ass'n, 158 N.C. App. 518, 520, 581 S.E.2d 94,
96 (2003). In all actions tried upon the facts without a jury[,]
. . . the court shall find the facts specially and state separately
its conclusions of law thereon and direct the entry of the
appropriate judgment. N.C. Gen. Stat. § 1A-1, Rule 52(a)(1)
(2005). When a trial court fails to make the required findings of
fact or conclusions of law, this Court 'may order a new trial or
allow additional evidence to be heard by the trial court or leaveit to the trial court to decide whether further findings should be
on the basis of the existing record or on the record as
supplemented.'
Harris v. N.C. Farm Bureau Mut. Ins. Co., 91 N.C.
App. 147, 150, 370 S.E.2d 700, 702 (1988) (citation omitted).
Remand is unnecessary, however, where the facts of the case are
undisputed and those facts lead to only one inference.
Cumberland
Homes, 158 N.C. App. at 520-21, 581 S.E.2d at 96.
Defendants contend that the trial court's judgment should be
reversed, or alternatively that this case should be remanded,
because the trial court did not make findings of fact regarding the
intent of the testatrix. Reversal or remand would be unjustified
in the instant case, however, because the facts lead to only one
inference in this regard. The only reasonable interpretation of
the testatrix's intent was to create a condition precedent to the
devise of her real property: namely, that the specified sums be
paid as directed on or before two years after the testatrix's
death. It was therefore unnecessary for the trial court to make
findings of fact regarding the testatrix's intent. Accordingly, we
uphold the trial court's conclusion that the language of the
paragraph created a condition precedent.
Defendants also challenge two additional conclusions of law
made by the trial court based on the court's failure to make
findings as to the testatrix's intent. These arguments are
likewise without merit. The trial court found, and it is
uncontested, that none of the payments required by the will were
made within the designated time period. This finding supports thetrial court's conclusion that the condition precedent was not
satisfied and that the devise therefore failed. Also uncontested
is the trial court's finding that the will contained no residuary
clause. Where a devise lapses for failure to satisfy a condition
precedent, and the will contains no residuary clause, the property
at issue passes to the testator's heirs by intestate succession.
See N.C. Gen. Stat. § 31-42(b) (2005). The trial court therefore
properly concluded that the testatrix's real property should pass
by intestacy.
Lastly, defendants argue that satisfaction of the condition
precedent was impossible because of the uncertainty regarding the
property interest at issue. It was this uncertainty that gave rise
to the declaratory judgment action below. We note in response that
the supposed uncertainty of which defendants complain has no
bearing upon the express terms of the will, and also that there is
no evidence in the record to demonstrate that it was not feasible
for defendants to satisfy the condition precedent. Furthermore,
the declaratory judgment made by the trial court contains no
findings or conclusions on this issue. We reiterate that this
appeal is limited to a determination of whether the trial court's
findings of fact support its conclusions of law.
Woodring v.
Woodring, 164 N.C. App. 588, 590, 596 S.E.2d 370, 372 (2004).
For all the reasons stated herein, defendants' assignment of
error is overruled.
Affirmed.
Judges TYSON
and
LEVINSON
concur.
Report per Rule 30(e).
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