Smith v. Central Carolina Bank & Trust Co. , 59 N.C. App. 712 ( 1982 )

HILL, Judge.

The plaintiff argues on appeal that the defendant bank’s method of selling the property of Raymond Foster’s estate denied her the right of first refusal as granted under her father’s will. Our examination of the record, including Raymond Foster’s will, reveals that the defendant bank was granted all the powers of an executor to arrange for and sell the property of Raymond Foster. Section 32-27 of the North Carolina General Statutes was also incorporated by reference into Raymond Foster’s will. The applicable portion of that statute, G.S. § 32-27(2), reads:

(2) Sell and Exchange Property. — To sell, exchange, give options upon, partition or otherwise dispose of any property or interest therein which the fiduciary may hold from time to time, with or without order of court, at public or private sale or otherwise, upon such terms and conditions, including credit, and for such consideration as the fiduciary shall deem advisable, and to transfer and convey the property or interest therein which is at the disposal of the fiduciary, in fee simple absolute or otherwise, free of all trust; and the party dealing with the fiduciary shall not be under a duty to follow the proceeds or other consideration received by the fiduciary from such sale or exchange.

In establishing a bidding process, whereby the surviving children of Raymond Foster could bid for and buy the property of their father’s estate before it was offered for public sale, the defendant bank was clearly within the bounds of its power under the will and the North Carolina General Statutes. We find no irregularities in the bidding method or in the sale of the property which in any way indicates the defendant bank exceeded or abused its power as executor.

Furthermore, plaintiffs right of first refusal was fulfilled through the defendant bank’s appraising the property, offering the property to the surviving children through numerous letters, and allowing the children to bid privately on the property. When the plaintiff and defendant, Virgil Foster, placed bids on the 383 acre parcel in question they exercised their right of first refusal. By selling the land to the higher bidder, Virgil Foster, the bank did nothing to interfere with that right. It simply carried out its duties under the provisions of the will. Upon the uncontroverted facts disclosed by the record, the trial court correctly entered summary judgment for the defendants.

Affirmed.

Judges Webb and Becton concur.