Folsom v. Rowell

640 S.E.2d 5 (2007)

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Nature of the Case

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Facts

Howard died in 1960, and was survived by six adult children. His will bequeathed a life estate in all of his property to Alma, who was his mentally handicapped youngest child. Under paragraph 4, the remainder was to be given to any of his children who took care of Alma during her lifetime. If none of his children took care of Alma, the remainder was to go to the person who did take care of her even if that person was an outsider. From 1960 until 1973, Alma lived in the home of her sister Lillian, now deceased, along with her children (Rowell heirs). From 1973 until 1994, Alma resided with Mitchell who was the widow of one of Testator's sons. From 1994, when Alma suffered a stroke, until her death in 2001, she resided with Linda Smith, a granddaughter of Testator, and was cared for by Ms. Smith and Mitchell. Certain grandsons of Testator (Folsom heirs), who are brothers, allegedly performed house maintenance and repairs for Alma's benefit, but they did not live with her or provide personal care. One of the Rowell heirs was appointed administrator and filed a motion for construction of the paragraph. The Rowell heirs and Ms. Smith, individually and in her capacity as executrix of the will of Mitchell, now deceased, entered into a settlement with several other heirs, whose claims were subsequently dismissed with prejudice. The Folsom heirs did not settle their claims and filed their own motion for construction of the will. Ms. Smith filed a motion for partial summary judgment, which was joined in part by the administrator. The court held that the Rowell heirs could take under Paragraph 4. It denied summary judgment as to Ms. Smith and denied the Folsom heirs' motion for construction. The court held that the remainder interest was initially contingent, and became vested in Lillian when she took Alma into her home, subject to partial divestment in favor of any other children of Testator who provided the requisite care; that such interest was not contingent upon the remaindermen surviving the life tenant, and could descend to their heirs at the death of Alma; that the remainder interest of those other than Testator's children could no longer vest once any of the children provided care; and, that the term “children” in Paragraph 4 did not include grandchildren such as Ms. Smith. The Folsom heirs appealed. Ms. Smith appealed.