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Home / Courts / Trusts & Estates – Wills – Real Property – Direction to Sell – Upset Bid Procedure – Inapplicable

Trusts & Estates – Wills – Real Property – Direction to Sell – Upset Bid Procedure – Inapplicable

Riggs v. Burns (Lawyers Weekly No. 12-16-0504, 6 pp.) (Sanford L. Steelman Jr., J.) Appealed from Currituck County Superior Court. (Marvin K. Blount III, J.) N.C. App. Unpub. Click here for the full-text opinion.

Holding: Since the testator’s will directed that his land be sold and the proceeds divided among his beneficiaries, the will vested title in the testator’s heirs – not the executrix – pending the sale. Therefore, G.S. § 28A-17-10 does not apply, and there was no requirement that the executrix’s private sale of the land be subject to the upset bid provisions of G.S. Chapter 1, Article 29A.

We affirm judgment on the pleadings for defendants.

G.S. § 28-A-17-10 applies only where “property is conveyed to a personal representative for the benefit of the estate the personal representative represents….”

Here, the executrix did not acquire the property by way of conveyance in the will. Item Four of the will directs the personal representative, in the event that the testator’s wife does not survive him, to “sell all of my real estate, execute a deed for the same and divide the proceeds” among the listed beneficiaries.   Based on the express language of the will, the executrix did not acquire the property by conveyance but was only given a power of sale. Thus, in accordance with the rule set forth in Ferebee v. Procter, 19 N.C. 439 (1837), title vested in the identified beneficiaries, and not the executor, pending the sale. Therefore, the upset bid provisions of G.S. Chapter 1, Article 29A do not apply.

 


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