11 At issue in this cause is whether the estate 'of a deceased grantor of mortgaged properties ' conveyed by transfer-on-death deed is liable for the underlying debt, when the grantor's will contained express instructions for the payment of all debts secured by mortgages. We determine that it is.
I.
FACTS AND PROCEDURAL HISTORY
T2 Carol Jean Carlson (Decedent) learned she was terminally ill in 2011, and retained an attorney to assist her in planning the disposition of her estate (Estate). On August 24, 2011, Decedent . executed three transfer-on-death deeds (TODDs) pursuant to the Nontestamentary Transfer of Property Act (NTPA), 58 0.8. 2011 §§ 1251-1258 for real property she owned, as well as a Last Will and Testament. . One of the pieces of real property transferred via TODD went to Debra Glover-who was later appointed Personal Representative of the Estate-and is not at issue in this appeal. The first of the other two TODDs named Appellee Clifford Cornish (Cornish) as grantee and the second named Eldin Lewis (Lewis). For purposes of this opinion, Appellees Cornish and Lewis will be collectively referred to as Grantees. Decedent died on August 29, 2011, five days after executing the TODDs and her Last Will and Testament.
T3 The TODD to Lewis concerns the following parcel: _
[al] tract of land being a part of the South Half (§/2) of the Northeast Quarter (NE/4) of Section Five (5), Township Twelve (12) North, Range One (1) West of the Indian Meridian,, Oklahoma - County, Okla homa. ...
TODD to Eldin B. Lewis, R. 285.
Prior to Decedent's estate planning and the execution of the TODD, Decedent executed a promissory note in the amount of $140,224.85 on December 19, 2006, in favor of The Mar-gee and Robert W. Minter Living Trust (Trust). R. 241. This note was secured by a mortgage, filed December 21, 2006, which encumbered the property conveyed to Lewis via the TODD. Mortgage of Real Estate, R. 242. Lewis timely accepted the TODD. On December 7, 2011, Lewis filed a proof of claim with the Personal Representative. for the remaining debt in the amount of $123,530.09. The Personal Representative rejected Lewis' claim on December 16, 2011. Notice of Rejection of Creditor's Claim, R. 74
T4 The TODD to Cornish concerns a 31-acre parcel of real property in Oklahoma County described as:
[alll that part of the West Half (W/2) of Section Thirty-Three (88), Township Fourteen (14) North, Range One (1) East of the Indian Meridian, Oklahoma County, Oklahoma, that lies West of the S.L. & SF. Railroad right-of-way and South of Hogback road (sometimes referred to as Jones Spencer road). +
Transfer on Death Deed to Clifford Earl Cornish, R. 59. _
Previously, on May 27, 2007, Decedent executed a note and security agreeiment in favor of Appellee Farm Credit Services (FCS) in the amount of $96,000.00. The note is secured by a mortgage in favor of FCS éxecut-ed on the same day and filed on May 29, 2007, A second note and security agree'ment, amending the first, were executed on September 16, 2010 for the amount of $88,778.60. ©
15 The record contains a letter from the Personal. Representative's attorney dated November 2, 2011, advising Cornish that the property he was to receive through the TODD was subject to a mortgage. The letter noted the language of 58 O.8, 2011 § 1255(B), stated that the mortgage remained attached to the land, that the owner of the land remains responsible for paying it, and provided an enclosed disclaimer for Cornish to sign if he desired not to accept ownership of the property. Letter to Clifford Earl Cornish, R. 72-78.
T6 Cornish instead decided to accept ownership of the parcel conveyed by the TODD, and signed an affidavit to that effect on December 4, 2011. During probate of the Estate, Cornish filed a creditor's claim against the Estate arguing that the note, security agreement, and mortgage were all executed by Decedent and the debt is the Estate's alone, citing a pay all debts provision in Decedent's Last Will and Testament. Claim of Clifford Earl Cornish, R. 79. The Personal Representative rejected Cornish's claim on December 16, 2011. FCS also filed a creditor's claim with the Personal Representative, for the amount of the note secured by the mortgage on the property granted to Cornish, FCS asserted that the full amount was due and payable under the terms of the note. The Personal Representative rejected this claim on December 22, 2011. 'The record indicates FCS has begun foreclosure proceedings. on the property securing the note, taken by- Cornish pursuant to the TODD.
T7 FCS filed its Ancillary Petition on Claim on January 9, 2012. Grantee Cornish filed his Ancillary Petition on Claim on January 10, 2012. On January 10, 2012, the Personal Representative filed an Application for Order Determining the Extent of the Estate's Liability concerning the claims of Grantee Cornish and FCS. On January 27, 2012, Grantee Lewis filed his own Ancillary Petition on Claim,. The Personal Representative filed a second Application for Order Determining Extent of Estate's Liability on February 3, 2012 concerning Grantee Lewis' claim.
T8 On April 6, 2012, the trial court entered an order granting the Appellees' petitions, approving the ancillary claims, and finding the mortgages and notes to be liabilities of the Estate. The Personal Representative filed a Petition in Error on May 25, 2012. On appeal, Personal Representative contends the trial court erred as a matter of law by allowing the creditors' claims of, Grantees and FCS because: 1) allowing the claims was contrary to the express language of
[ 9 The Court of Civil Appeals, in an opinion filed on June 11, 2015, reversed the decision of the trial court and remanded for further proceedings. The Court of Civil Appeals determined that Grantees did not have standing to pursue creditors' claims against the Estate to satisfy the notes and mortgages on their respective properties, Further, the Court of Civil Appeals determined that while FCS possessed standing as the holder of a note and mortgage, the trial court prematurely granted FCS' claim because FCS was required to foreclose on the property, obtain a deficiency judgment, and only then present a claim to the Estate for payment,
10 Grantees filed their Petition for Cer-tiorari on June 24, 2015, asserting the Court
HL
STANDARD OF REVIEW
$11 Probate proceedings are of equitable cognizance. In re Estate of Holcomb,
IV.
ANALYSIS
-A. The Trial Court Correctly Determined Appellees' Claims Are Liabilities of the Estate
112 The first question we must answer is whether the trial court erred when it determined the notes, secured by mortgages on the land transferred to Grantees, are la-bilities of the Decedent's estate. We hold that it did not.
1, Decedent's'intent, as expressed by her Last Will and Testament and the TODDs, was for her estate to pay all of her debts, including those secured by mortgages on the properties transferred to Grantees via TODD. |
113 Of paramount importance in a probate proceeding is discerning and implementing a decedent's intent. Title $4 0.8. 2011 § 151 provides: "[a] will is to be construed according to the intention of the testator. Where his intention cannot have effect. to its full extent, it must have.effect as far as possible." Amongst other provisions, Decedent's Last Will and Testament contains the following directive concerning her debts:
2. PAYMENT OF DEBTS: I hereby direct that all my debts, including the expenses of my last iliness and burial and the expenses of administration of my estate, be paid by my executor except that the payment of any debts secured by mortgage or pledge of real or personal. property may be postponed until payable by its terms.
Last Will and Testament of Carol Jean Carlson R.L | C
It is undisputed in this cause that the TODDs and Decedent's Last Will and Testament were executed on the same day and conceived as a smgle estate plan. Pursuant to 84 0.98. 2011 § 154, "[sleveral testamentary instruments, executed by the same testator, are, to be taken and construed together as one mstrumen #00 C
14 The TODDs at issue in thls cause are nontestamentary instruments, authorized by the Nontestamentary Transfer 'of Property Act (NTPA), 58 0.8. §§ 1251-1258; Specifically, 58 0.8. 2011 $ 1258 provides: "[a] deed in transfer-on—death form, executed in con-form1ty 'with the Nontestamentary Transfer of Property Act, shall not be considered a testamentary dlsposmon and shall not be invalidated due to nonconformity with other provisions in Title 58 or Title 84 of the Oklahoma Statutes." Even so, though the TODDs are nontestamentary in that they need not comply with other prowsxons of Title 58 or Title 84, nothlng in the NTPA prevents the TODDs’from being examined with Decedent's simultaneously executed testamentary instruments to determine Decedent's intent in this instance. Because all of the instruments in «question were executed on the same day and as part of a comprehensive plan, this Court will interpret them together in order to discern Decedent's intent.
{15 The unambiguous debt-payment provision of Decedent's Last Will and Testament, along with the TODDs, indicate Decedent's intent was that the notes secured by the mortgages on the properties conveyed to Grantees by TODD be paid by Decedent's estate. ' This determination is further supported by the affidavit of Jeff A. Eulberg, Decedént's friend and the attorney who assisted Decedent with the planning of her estate, including the preparation of her Last Will and Testament and the TODDs. Attorney Eulberg's affidawt provides in pertment part:
3. She contacted me to help her with distributing her property at her death through her will and using transfer-on-death-deeds. She told me that she wanted to give her friends some property. She told me that she intended to sell her mobile home park and use that money to pay off what she owed on her other property. Unfortunately her cancer progressed too rapidly. She died before she could sell the mobile home park.
4. By August 24, 2011 she believed that she didn't have much time left. On August 24th, 2011 I prepared her will and some remaining transfer-on-death deeds. Her will and transfer-on-death deeds were read to her. I also explamed the will and transfer-on-death deeds to her. The documents were then executed, witnessed and notarized as required by law. The will which I prepared and she signed is the same will admitted into probate in this case
5. At no time did she tell me that she did not want all of her debts paid. The will I prepared; which she signed, complied with her wishes.
Affidavit of Jeff A. Eulberg, R. 295.
116 Decedent's Last Will and Testament contains an explicit provision for payment of debts, including those secured by mortgages on real property, which she intended cover the notes secured by the properties transferred to Grantees. Title 58 0.8. 2011 § 461 concerns will provisions for payment of debts, and states:
lf the testator makes provisions by his will or designates the estate to be appropriated for the payment of his debts, the expenses of administration, or family expenses, they must be paid according to such provisions or designation, out of the estate thus appropriated, so far as the same is sufficient.
Normally, when a decedent's real property secured by mortgage passes to successors,
[wlhen real property, subject to a mortgage, passes by succession or will, the successor or devisee must satisfy the mortgage out of his own property, without resorting to the executor or administrator of the mortgagor, unless there is an express direction in the will of the mortgagor that the mortgage shall be otherwise paid.
When real property subJect to a mortgage passes by succession or W111 so does responsibility for satisfying the mortgage-pursuant to 46 O.S. § 2011 5-unless, in accordance with 58 0.8. 2011 § 461, the testator made specific provisions in the will for payment to be made some other way.
[glrantee beneficiaries of a transfer-on-death deed take the interest of the record owner in the real estate at the death of the grantor owner, free and clear of any claims or interest under Section 44 of Title 84 of the Oklahoma Statutes as to a person who became the spouse of the grantor subsequent to the execution of the transfer-on-death deed, subject to all recorded conveyances, assignments, contracts, mortgages, liens and security pledges made by the record owner or to which the record owner was subject during the lifetime of the ree-ord owner including, but not limited to, any recorded executory contract of sale, option to purchase, lease, license, casement, mortgage, deed of trust or lien, and to any interest conveyed by the record owner that is less than all of the record owner's interest in the property, provided however, a non-consensual lien against the grantee beneficiary shall not attach to the property until the recording of the affidavit described in Section 1252 of this title,
Appellant asserts
2. The NTPA does not conflict with or defeat Decedent's intent that the' debts represented by Appellees' claims be paid by the Estate.
(18 Pursuant to 58 0.8. 2011 § 1255(A), Grantees took the interest of Decedent in the respective properties at the time of Decedent's death, They took this interest "subject to all recorded conveyances, assignments, contracts, mortgages, lens and security pledges made by the record owner." Title 58 0.8. 2011 § 1255(A). By the plain terms of the statute, Grantees each took the properties subject to the mortgages attached to them. Those mortgages serve as ' security for the notes originally executed between Decedent and her lenders, Farm Credit Services and The Margee and Robert W. Minter Living Trust, Title 58 0.8. 2011 § 1255(A) does not, by its own terms, prov1de that Grantees assumed liability for any of Decedent's underlying debt. Rather, Grantees took the property subject to the security for that debt: the mortgages.
119 In Oklahoma, a mortgage does not operate as a conveyance vesting in the mortgagee any estate in realty. First Mustang State Bank v. Garland Bloodworth, Inc.,
€20 Where a mortgagor conveys mortgaged land to a grantee who assumes and agrees to pay the mortgage debt, the grantee becomes the principal obligor of the mortgage debt and mortgagor his surety. Stalcup v. Easterly,
121 The NTPA.is a comparative, ly new pigce of legislation, and there is therefore little precedent concerning TODDs, However,, conveyance of property by TODD shares important similarities with property held in joint tenancy. As this Court previously noted:
__ [It is well-settled law that a joint tenancy, in either real or personal property, "creates a present estate which, absent severance during the life of the joint tenants, assures the surviving tenant absolute ownership of the whole subject matter of the joint tenancy.". Toma [v. Toma],2007 OK 52 , ¶ 11, 163 P.3d [540] at 544. Upon a joint tenant's death, the decedent's interest terminates and the surviving tenant's interest simply continues. Clovis v. Clovis,1969 OK 170 , ¶ 16,460 P.2d 878 , 881. By operation of law, the surviving tenant becomes. immediately vested with the property as a whole, and the joint tenancy property is excluded from the decedent's estate. Toma,2007 OK 52 , ¶ 11,163 P.3d at 544 . Therefore, there is no property interest remaining that a decedent's benefi-clary may inherit. See Draughon [v. Wright],1948 OK 81 , ¶ 9,200 Okla. 198 , 191 P.2d [921] at 923.
In re Estate of Metz,
[a] TOD deed has many of the same sm-. vivorship characteristics as a joint tenancy deed. These characteristics are as follows: (a) that the record owner's interest automatically transfers to the grantee benefi-clary upon the death of the record owner, KSA. 59-3501(a) and K.S.A. 59-3504(a); (b) that no other action or procedure is required to transfer full title to the grantee beneficiary, K.S.A. 59-8501(a) and K.S.A. 59-3504; (c) that any attempt by the record owner to revoke or convey the record owner's interest in real estate subject to a TOD deed by the record owner's will is invalid, K.S.A. 59-8508(c); (d) that because title in the real estate vests immediately in the grantee beneficiary upon the death of the record owner under K.S.A. 59-83501(a) and K.S.A, 59-3504(a), the real estate is not included in the record owner's probate estate; and (e) that the transfer of the real 'estate by a TOD deed is not testamentary in nature under K.S.A. 59-8507, and is not subject to the provisions of- the probate code.
In re Estate of Roloff,
[ 22 Given the similarities, cases from other jurisdictions with similar facts are illustrative. In In re Estate of Charles A. Zahn,
23 Similarly, the California Court of Appeals found that, where the deceased held a property in joint tenancy with another, his direction in his will to pay his "just debts" was not sufficient to indicate the intention that the mortgage be a liability of the estate. In re Estate of Roy P. Dolley,
124 These cases indicate that where a will clearly and unambiguously provides for the payment of a debt secured by mortgage, such direction should be followed, despite the transfer of property ownership occurring outside of probate. Personal Representative points to the above cases as support for the contention that the debt is not a Hability of the estate, arguing that Decedent's will "did not contain express language to require the payment of the mortgages transferred under the Non-Testamentary Transfer on Death Deed statutes." - However, this case is distinguishable factually from the cases discussed above, as Decedent's will did not merely refer to "just debts" and, in fact, did specify the payment of debts secured by mortgages: "I hereby direct that all my debts ... be paid by my executor, except that the payment of any debt secured by mortgage or pledge or real or personal property may be postponed until payable by its terms." This language specifically addresses debts secured by mortgages and provides unambiguous direction for payment. Thus, these directions should be followed, even if the underlying property subject to the mortgages as security for the debt was transferred outside of probate by TODD.
B. Appellees Possess Standing to Assert Their Claims
125 Having determined that the trial court correctly ruled the debts set out in Appeliees' creditors' claims are liabilities of the Estate, this Court must now consider whether Appellees possessed standing to assert those elaims.
[wle interpret the will's language to mean that satisfaction of "any debts secured by mortgage or pledge of real or personal property" need not be immediate. Rather, satisfication "may be postponed until payable by its terms." This means a secured debt may be collected by a creditor or mortgage holder entitled to collect that debt from the Estate using any remedies available to that creditor by law 'or under the terms of that secured. debt,. However, those remedies are not available to Grantees because they are neither parties; to the debt, creditors of the Estate, nor proper parties to enforce payment .of the debt secured by their real property which had been formerly owned by. Estate. Grantees may not use the terms of Decedent's will to - eompel Estate to act to satisfy the debt on their properties.. That right belongs to the actual owners' of those secured debts, who alone have standing to present a creditor's claim. |
Op1mon of the Court of Civil Appeals, 29.
The Court of Civil appeals further concluded that even the actual creditors of the estate, such as FCS, must obtain a deficiency judgment post-foreclosure, first, and only then submit a claim, to the estate for payment. Opinion of the Court of Civil Appeals, ¶ 30. We disagree.
1, FCS was not required to foreclose and only afterwards filé a creditor's claim limited to the amount of any defic1en-cy Judgment
126 Concerning the timeliness and nature of FCS' claim, 58 O.8. 2011 § 461 requires that debt-related provisions in
"27 Further, nothing in the relevant statutes or this Court's prior jurisprudence requires the holder of a note secured by mortgage on real property to initiate foreclosure proceedings prior to filing a claim against the estate for underlying debt. Title 58 0.8. 2011 $ 888 (emphasis added) provides:
[alll claims arising upon contracts entered into prior to the decedent's death, whether the same be due, not due or contingent, must be presented on or before the presentment date as provided in the notice, and any claim not so presented is barred forever; provided, however, that when it is made to appear by the affidavit of the claimant, to the satisfaction of the personal representative and the judge of the district court, as duly noted on the claim, that the claimant had no notice by reason of being out of the state and that a copy of the notice to creditors was not mailed to said claimant, the claim may be presented at any time before a final decree of distribution is entered; provided, further, that nothing in this section, nor in this chapter contained, shall be construed to prohibit the right or limit the time of foreclosure of mortgages upon real property of decedents, but every such mortgage may be foreclosed within the time and in the mode prescribed in civil procedure, except that no balance of the debt secured by such mortgage remaining unpaid after foreclosure shall be a claim against the estate, unless such debt was presented as required by this code.
The emphasized portion of
1 28 This Court explained the relevant portion of 58 0.8. 2011 § 388 in Cahill v. Kilgore,
[ulnder the above quoted exception, plaintiff clearly had the right to foreclose the mortgage in controversy without first presenting to defendant in her representative capacity a claim based upon the note securing the mortgage or the mortgage. In her brief plaintiff makes this statement and concession: 'There is no question here about a deficiency judgment in this case. It could only arise if presented to the County Court after the foreclosure, Under the above proviso we had the right to proceed by foreclosure without presenting claim to administrator. We waived that right and chose to rely on our mortgage. In view of the fact that an action to foreclose a mortgage may be maintained without seeking a personal judgment (Irwin v. Sands, Okl.[1953],265 P.2d 1097 ) and in view of the further fact that plaintiff is not here asserting the right to recover a deficiency from Dick Cahill's estate, we are of the opinion that defendant's first contention is not well taken.5
2. Grantees possessed standing to assert their claims before the trial court
129 Standing refers to a person's legal right to seek relief in a judicial forum. Fent v. Contingency Review Bd.,
1830 Grantees both possess interests in real property encumbered by mortgages. Those mortgages secure debt that is a Hability of Decedent's Estate. Failure of the Estate to pay that debt will subject Grantees to foreclosure of their respective properties, an action for which has already been filed concerning Grantee Cornish's property. The injury to- Grantees if the Estate's lability for the debt. is not recognized is concrete, not conjectural. Grantees' injury is a direct result of the Personal Representative's denial of their claims, and is- capable of being redressed by the court's decision that the debts secured by their properties must be paid by Decedent's estate. . This Court has also stated that a litigant must have a personal stake in the outcome. Hendrick v. Walters,
<1 81 The claim of Grantee Cornish specifically states it was filed to protect his right to be equitably subrogated and potentially recover against the estate because of the threat of foreclosure on his property arising directly from the Estate's prior refusal to recognize its obligation to pay the note. Claim of Clifford Earl Cornish, R. 79. Likewise, the claim of Grantee Lewis was made to protect his ownership of his property by obtaining confirmation from the court of the estate's obligation to pay the note secured by mortgage on his property. Proof of Claim, R. 76.
182 The doctrine of equitable subrogation is a creature of equity intended to achieve the natural justice of placing the burden where it ought to rest. In re Estate of MacFarline,
CONCLUSION:
T83 The emphasis of the entire probate process is to discern and effectuate a decedent's dispositive intentions. Matter of Estate of Sneed,
Notes
. See Title 15 O0.S.2011 § 158 ("Several contracts relating to the same matters, between the
This Court's interpretation of 15 0.8. 2011 § 158 also allows for situations in which the contracts were not executed at substantially the same time and/or do not reference each other. In Pauly v. Pauly, this Court construed together a deed to real estate and an agreement regarding the reservation of oil and stating: .
Where several instruments are made a part of one transaction, they will be read together, and each will be construed with reference to the other. This is true, although the instruments do not in terms refer to each other. So if two or more agreements are executed at different times as parts of the same transaction they will be taken and construed '
. This cause concerns Hability for notes secured by mortgaged real property after the real property has been transferred, and is therefore distinct from situations where the note itself has changed hands. Assignment of the note itself necessarily carries with it assignment of the mortgage, and assignment of the mortgage without the note is a nullity. CPT Asset Backed Certificates, Series 2004-EC1 v. Cin Kham,
. With regard to Appellant's point of error concerning jurisdiction: the trial court was within its probate jurisdiction to consider Appellees' claims, regardless of the nontestamentary status of TODDs. Appellees' claims concern Decedent's Last Will and Testament and whether it requires Decedent's Estate to pay certain of Decedent's debts. Such claims are squarely within the probate jurisdiction of the trial court. 58 ©.S. 2011 § 1.
. Standing, very much like jurisdiction, must be inquired into sua sponte. Fent v. Contingency Review Bd.,
. The Court in Cahill examined
. A contingent claim and subsequent suit based upon a note not yet due is also permitted. In Anderson v. Merriott,
[58 O.S. § 339] recognizes an unimatured debt is entitled to the same protection and remedies as one which is due before the death of the debtor. A claim against the estate of a deceased person for an unmatured debt is sufficient if it fully advises the administrator the nature and amount of the demand and sets forth the particulars of such claim. If the claim is properly presented and is rejected, the holder thereof may bring suit thereon in the proper court. Commercial Inv. Trust v. Harsha,116 Okla. 140 ,243 P. 955 (1926). Also see In re Travis' Estate,186 Okla. 223 ,97 P.2d 50 (1939).