Smith v. Lawton

435 S.C. 179

865 S.E.2d 782

Mary P. SMITH, Maezell Mitchell Jefferson, Individually and as personal representative of the Estate of Annabelle Thornton, Shirrese B. Brockington, as special administrator of the Estate of Janine Gourdine, Emma Smalls, Viola Pringle, Cephus Thornton, Arthur Graddick, III, an imprisoned person, Venetra Watson, and any known or unknown persons or entities claiming any interest in the Estates of Lucinda Pringle, Odessa Graddick, Arthur Graddick, Jr., Annabelle Thornton, and Janine Gourdine, Appellants,

v.Angus M. LAWTON, personal representative of the Estate of Lucinda Pringle, Evelina Brown Moses, Thomas P. Brown, Jr., and Unknown PR Rebecca Patricia Brown, Respondents.

Appellate Case No. 2018-000562

Opinion No. 5859

Court of Appeals of South Carolina.

Heard January 12, 2021

Filed September 1, 2021

Thomas Jefferson Goodwyn, Jr., of Goodwyn Law Firm, LLC, of Columbia, for Appellants.

Jonathan Scott Altman, of Derfner & Altman, LLC, of Charleston, and Stephen Michael Slotchiver, of Slotchiver & Slotchiver, LLP, of Mount Pleasant, both for Respondents.

LOCKEMY, C.J.:

In this probate action, the estates of Mary Smith, Annabelle Thornton, Emma Smalls, and Janine Gourdine (collectively, Children) appeal the circuit court's order affirming the probate court's order probating the will of Lucinda Pringle (Decedent), which devised property to Decedent's grandchildren: Evelina Moses, Thomas Brown, and Rebecca Brown (collectively, Grandchildren). On appeal, Children argue the probate court erred in probating the will because (1) there was no evidence the will was properly executed, (2) the will was altered, and (3) the reopening of Decedent's estate (the Estate) was not timely. We affirm in part, reverse in part, and remand for an evidentiary hearing on whether there was proper execution of the will.

FACTS/PROCEDURAL HISTORY

This case has a lengthy procedural history. Decedent died on October 11, 1989. At her death, Decedent owned a fifty-percent interest in a 10.5-acre parcel of real estate (the Property) located off Highway 17 in Mount Pleasant, South Carolina. The Property was Decedent's sole asset and the focus of this litigation. Decedent had five children: Annabelle Thorton, Mary Smith, Janine Gourdine, Emma Smalls, and Evelina Brown. All of Decedent's children had passed by the time of this appeal. Evelina Brown, who was Grandchildren's mother, predeceased Decedent.

In the wake of Hurricane Hugo in late 1989, Smalls submitted an insurance claim for damage to the house located on the Property. The insurance company issued a check in January 1990, naming Smalls and Grandchildren as "executors of the [E]state." Both Grandchildren and Children have asserted at different stages of this litigation that Smalls altered the will and added herself so that she could receive insurance proceeds to repair the home on the Property, where she lived.

In 1999, the probate court administered the Estate through intestacy, and on August 16, 2000, the probate court closed the Estate. A deed of distribution conveyed a one-fifth interest to Grandchildren who took instead of Brown, their predeceased mother, and a one-fifth interest to each of Decedent's surviving daughters. Administration of the Estate was completed on June 26, 2001.

On August 4, 2005, Evelina Moses filed the will with the probate court. On October 20, 2005, Grandchildren filed a petition for subsequent administration and for recovery of improper distribution, arguing Decedent died testate. They alleged that at the time of Decedent's death, Children possessed the will but concealed it so that the Estate would be distributed through intestacy and they could live out their lives out on the Property.

In early 2006, Thomas Brown, Moses, and Smalls were deposed. In his deposition, Thomas Brown stated he saw a document that purported to be Decedent's will soon after her death, but Thornton and Smalls refused to provide him with the will. He stated that in 2005, he received a copy of the will from Thornton's daughter, Viola Pringle, but the probate court refused to accept a copy of the will. In Smalls's deposition, she denied knowledge of a will and stated she never discussed a will with Moses. In Moses's deposition, she stated she received the original will from Smalls in June 2005.

On January 18, 2007, Grandchildren filed a motion to vacate the probate court's 2001 order closing the Estate. Children filed a motion to dismiss, arguing the ten-year limitations period prevented the probate of any will. On April 8, 2008, the probate court held a hearing on Grandchildren's motion to vacate the probate court's previous order, the petition for improper distribution, and Children's motion to dismiss. At the hearing, Children asserted they were not addressing the will's validity because the will was not in evidence at that stage of the litigation. However, they stated they were not waiving the right to challenge the validity of the will. Grandchildren agreed that at some future date, Children would have the opportunity to challenge the will.

The probate court dismissed Grandchildren's motion to vacate and petition to reopen the Estate. The probate court ruled that there was good cause to reopen the estate but because more than ten years had passed, section 62-3-108 of the South Carolina Code (Supp. 2020)¹ prevented the probate court from reopening the Estate. The probate court found the copy of the will attached to the petition did not comply with the requirements of section 62-3-402 of the South Carolina Code (Supp. 2020).² Grandchildren appealed to the circuit court, which affirmed. Grandchildren appealed to this court, and we reversed and remanded. Moses v. Haile-Howard ex rel. Estate of Smith , Op. No. 2011-UP-386, 2011 WL 11735040 (S.C. Ct. App. filed Aug. 9, 2011). We held the probate court's finding that there was good cause to reopen the Estate based on Smalls's concealment of the will was the law of the case. Id. Thus, the concealment of the will meant section 62-3-108 did not prohibit the probate court from admitting the will into probate. Id. This court further stated, "Decedent intended [Grandchildren] to inherit from her last will and testament," and ruled the probate court could reopen the Estate. Id. The parties did not seek a writ of certiorari as to this opinion.

On March 13, 2012, Children again moved to dismiss, arguing the limitation period found in section 62-3-108 prohibited the probate court from probating the will. Thereafter, the probate court held a final hearing. On March 24, 2013, the probate court ordered that the will could be probated and that Grandchildren "shall submit a Form 300 Application^{[3 ]} to open the Estate (either formally or informally) with this Court."⁴

On February 20, 2015, Children moved to dismiss this probate of the will, arguing the probate court lacked subject matter jurisdiction, Grandchildren's petition was untimely, and Grandchildren never filed a petition for formal or informal testacy. The probate court denied Children's motion to dismiss. On September 4, 2015, Grandchildren filed a Form 300 Application for informal probate of the will. On February 4, 2016, Children petitioned for formal testacy, asserting the will was invalid and could not be probated and was barred by the ten-year limitations period of section 62-3-108.

At the November 9, 2016 hearing, Children argued that because Grandchildren had finally offered the will for probate, it was the proper time to challenge the validity of the will. Children challenged the will on the grounds that (1) it was not self-proving and Grandchildren had offered no testimony from witnesses to the will regarding its execution; (2) the beneficiary section of the will was whited out and typed over; and (3) the witnesses had attested that Lucinda Springer, not Lucinda Pringle, signed the will. Grandchildren argued this was the first time Children tried to challenge the validity of the will even after the probate court accepted the will to probate on March 24, 2013. Grandchildren therefore argued the court's order accepting the will to probate was the law of the case.

On January 18, 2017, the probate court denied Children's petition for formal testacy. The probate court held the alteration did not preclude the will from being probated because Grandchildren "[did] not question[ ] Emma Smalls'[s] status as an heir, any such alteration by Ms. Smalls d[id] not preclude Decedent's will from being probated and that further inquiry [wa]s unwarranted." Next, the probate court determined that because the witnesses to the will were dead, no further inquiry into the attesting witnesses was required. Finally, the probate court concluded the appearance of the name "Lucinda Springer" instead of "Lucinda Pringle" was a scrivener's error.

Children appealed to the circuit court, arguing the probate court erred in failing to make findings related to the will's validity and in finding the will was properly proved and could be admitted to probate. Specifically, Children argued the probate court erred in probating the will because the witnesses to attestation did not testify and the probate court received no evidence of proper execution. Children averred Grandchildren should have acquired an affidavit from one of the attesting witnesses during the pendency of this litigation.

Children also argued the attesting witnesses saw Lucinda Springer and not Lucinda Pringle sign the will.

The circuit court affirmed the probate court's order. Specifically, the circuit court ruled the attestation clause was sufficient because section 62-3-406 of the South Carolina Code (Supp. 2020) required witnesses to testify only "if" they were able and, here, the witnesses' deaths rendered them unavailable. The circuit court held "Springer" was a scrivener's error. Further, the circuit court ruled the probate court did not err in accepting the will to probate. This appeal followed.

ISSUES ON APPEAL

1. Did the circuit court...