in the Court of Appeals 16 May 2017.
by defendants from judgment entered 5 August 2016 by Judge
James M. Webb in Superior, Court, Cumberland County, No.
Law Firm PLLC, by Steven J. O'Connor, for
Wiggins Cleveland & McLean PLLC, by Richard M. Wiggins,
brother, Ernest Harold Brewington, Sr., died on 19 May 2013,
leaving a holographic will. The holographic will provided in
relevant part, "All insurance proceeds will go in a
trust account after the following . . . 5. Pay the note @
BB&T that's in my sister Peggy's name[.]" On
21 June 2013, letters testamentary were issued to defendants
to serve as co-executrixes of the decedent's estate. On
26 September 2013, plaintiff presented her claim under the
will to defendants, requesting payment of the BB&T loan,
which she specifically identified by loan number, principal
balance, and per diem interest owed. On 25 November 2013,
defendants rejected plaintiff's claim "in full"
"pursuant to N.C. Gen. Stat. § 28A-19-1 et
seq." North Carolina General Statute § 28A-19-1
et seq. is in Article 19 of our General Statutes
entitled, "CLAIMS AGAINST THE ESTATE" which is in
Chapter 28A entitled, "ADMINISTRATION OF DECEDENTS'
ESTATES[.]" See generally N.C. Gen. Stat. Chap.
28A, Art. 19 (2013).
August 2015, plaintiff filed a "COMPLAINT BY LEGATEE TO
RECOVER LEGACY[.]" Plaintiff alleged that she was
entitled to receive payment under the her brother's will
of the sum required to pay off the BB&T loan. Plaintiff
requested the trial court to compel payment from defendants,
the co-executrixes of her brother's estate. Defendants
answered plaintiff's complaint, alleging plaintiff was a
creditor of the estate and had received "$38,
593.07 in life insurance proceeds[.]" Defendants'
implicit position was that plaintiff's only possible
claim was as a creditor under the estate and not as a
legatee, and payment of the debt had been fulfilled in part
with the $38, 593.07 payment. Defendants also requested
dismissal under North Carolina Rule of Civil Procedure
12(b)(6) and argued plaintiff's claim was barred by the
"[a]pplicable" statute of limitations because
"Plaintiff's claim is properly treated as that of a
creditor[, ]" although the answer did not cite a
October 2015, the trial court denied defendant's motion
to dismiss. After a bench trial, on 5 August 2016, the trial
court entered an order with many findings of fact, none of
which are challenged on appeal. Relevant to the issue on
appeal, the trial court found "[t]he only note at
BB&T that plaintiff had at the time of decedent's
death . . . had a balance at or about . . . $86, 230.48 with
interest at 4.1% per annum[.]" The trial court concluded
that "[t]he will of the decedent in Section 5.E. made an
indirect devise to the plaintiff by directing that
decedent's funds were to be used to pay a debt owned by
the plaintiff to a third party, Branch Banking and Trust
Company, which debt was Branch Banking & Trust Company
Loan . . . in the name of the plaintiff." The trial
Defendants filed an Affidavit of Notice to Creditors on
September 25, 2013 which stated that no copy of the Notice to
Creditors required by G.S. 28A-14-1 had been mailed or
personally delivered because, after making a reasonable
effort, within the time allowed by law, they were satisfied
that there were no persons, firms or corporations having
unsatisfied claims against the estate of the decedent. The
defendants did not mail or deliver to plaintiff a Notice to
Creditors as is described in N.C Gen. Stat. §28A-14-1.
trial court concluded that "[t]he rejection of the
creditor's claim filed by the plaintiff and the statute
of limitations applicable to such claim, N.C. Gen. Stat.
§ 28A-19-3, does not bar the claim of an heir or devisee
to their respective shares or interests in a decedent's
estate." The trial court entered judgment for plaintiff
and ordered defendants, the co-executrixes of the estate, to
pay $91, 949.07 with interest. Defendants appeal.
argue that the trial court erred in determining plaintiff
"was entitled to indirect devise" because she was a
creditor of the estate. Whether plaintiff was a creditor of
the estate is a question of law we review de novo on
appeal. Spears v. Betsy Johnson Mem'l Hosp., 210
N.C.App. 716, 719, 708 S.E.2d 315, 318 (2011) ("[I]ssues
involving statutory interpretation are questions of law,
which are reviewed de novo by an appellate
court." (citation and quotation marks omitted)).
Defendants have not challenged any of the trial court's
findings of fact supporting its conclusion of law that
plaintiff was not a creditor of the estate, and we agree with
the trial court's conclusion.
unaware of any North Carolina authority which discusses or
interprets what constitutes an "indirect devise." A
devise would usually be classified as a specific devise, a
general devise, or a residuary devise. See N.C. Gen.
Stat. § 28A-15-5 (2013).
The general rules for determining whether a bequest is
general or specific in nature are relatively clear, but their
proper application to the innumerable variations in wording
and circumstances presented by testators to the courts is
much less certain. A specific legacy is defined as a gift of
a particular fund or object -- a particular thing or money
specified and distinguished from all of the same kind, as of
a horse, a piece of plate, money in a purse, stock in the
public funds, a security for money, which would immediately
vest with the assent of the executor. In order to avoid
having to apply the principle of ademption, courts usually
presume that the testator intended to create a general legacy
when he fails to make his intention clear. The tendency of
the courts is to hold that a bequest is not specific unless
the intent clearly appears in the will.
A general bequest is defined as a gift of property which does
not specify the exact unit of property which the ...