Bynum v. Sharpe

• Decision Date: 12 December 1983
• Docket Number: No. 0022,0022
• Court: South Carolina Court of Appeals
• Parties: W.E. BYNUM, Jr., individually and as Co-Executor and Co-Trustee of the Estate of W.E. Bynum, Respondent-Appellant, v. May Clarke Bynum SHARPE, Henry Clarke Bynum, Alvis J. Bynum and the National Bank of South Carolina as Co-Executor and Co-Trustee of the Estate of W.E. Bynum, of whom The National Bank of South Carolina is a Respondent, and May Clarke Bynum Sharpe, Henry Clarke Bynum and Alvis J. Bynum are Appellants-Respondents.

Page 662

310 S.E.2d 662

279 S.C. 586

W.E. BYNUM, Jr., individually and as Co-Executor and Co-Trustee of the Estate of W.E. Bynum, Respondent-Appellant, v. May Clarke Bynum SHARPE, Henry Clarke Bynum, Alvis J. Bynum and the National Bank of South Carolina as Co-Executor and Co-Trustee of the Estate of W.E. Bynum, of whom The National Bank of South Carolina is a Respondent and May Clarke Bynum Sharpe, Henry Clarke Bynum and Alvis J Bynum are Appellants-Respondents.

No. 0022.

Court of Appeals of South Carolina.

Dec. 12, 1983.

Weinberg, Brown & McDougall, Sumter, and Boyd, Knowlton, Tate & Finlay, Columbia, for appellants-respondents.

Whaley, McCutchen, Blanton & Rhodes, Columbia for respondent-appellant.

Schwartz & DuRant, Sumter, for respondent.

GARDNER, Judge:

This is a cross-appeal; we affirm in part and reverse in part.

Involved here are questions pertaining to the distribution of estate assets. W.E. Bynum, Sr. died testate in 1975, leaving his wife, Esther, and his four children, W.E. Bynum, Jr., May Clarke Bynum Sharpe, Henry Clarke Bynum and Alvis J. Bynum as the main beneficiaries of his estate. After certain lifetime bequests of monthly income to relatives and certain charitable bequests, he devised the bulk of his estate by the will's residuary clause as follows:

"All the rest, and the residue of my estate, both real, personal and mixed, wheresoever situate, I give, devise and bequeath to my oldest son, William E. Bynum, Jr. and to the National Bank of South Carolina, of Sumter, as Trustees, IN TRUST to collect the income therefrom and to pay over to my said wife, Esther C. Bynum, semi-annually or more often, for and during the term of her natural life the income from said trust, and upon and after her death, the trustees shall distribute the same in equal shares to my beloved children in fee simple, the child or children of a predeceased child to take the share the parent would have taken if living. In the distribution of my estate, I desire that my son, William E. Bynum, Jr., if he shall so elect, shall have set off to him the stock owned by me at my death in the W.E. Bynum Company, at a fair market valuation. If he shall elect to have a sufficient amount of said stock set off to him to give him a majority interest in said corporation, he shall have this right, at a fair market value of said stock based on equitable principles between him and his sister and brothers."

The wife and children in 1976 for tax purposes disclaimed their interest under the will, but the I.R.S. insisted and did tax the estate without benefit of a spouse's exemption (a life estate doesn't qualify). Thereafter in 1977 the children effectively by Court Order withdrew their disclaimer. The widow, having not withdrawn her disclaimer, now, of her own choice, has no interest in the estate.

Among the assets of the estate are six hundred shares of a family corporation, the W.E. Bynum & Company, Inc. The balance of the stock is owned by the children equally, each owning one hundred shares. The genesis of this litigation is dispute about the evaluation and purchase of this stock.

Bynum, Jr. brought this action against his sister and two brothers; he has elected to have set off to him so much of the company stock as amounts to one-fourth of the total estate assets and asserts the right under the will to purchase the remaining outstanding shares of the company.

After several hearings, the learned and esteemed trial judge issued an order on the 5th of September, 1980, from which Bynum, Jr. and the other Bynum children appealed. Numerous issues were before the trial court. We concur in all conclusions reached by the trial judge except three. We therefore affirm in part and reverse in so far as it was held: (1) that the evaluation of the estate assets for purposes of distribution be pegged as of July, 1978; (2) that a deduction for anticipated capital gain taxes be allowed Bynum, Jr. in the purchase of the company stock and; (3) that under the will Bynum, Jr. has the option to purchase, after exercising his right of set-off, the remaining company stock.

In answering these questions the intent of the testator is controlling if from the will answers can be gleaned.

The cardinal rule in the construction of any will is to determine the intent of the testator as gleaned from the entire written instrument. Echols v. Graham, 256 S.C. 202, 182 S.E.2d 69 (1971). Hays v. Adair, 267 S.C. 291, 227 S.E.2d 665 (1976).

In this case the testator obviously intended a delay in the distribution. The will provided a life estate for the widow and directed the trustees (so termed rather than executors) to pay her the income for life and at her death directed distribution. Having disclaimed her interest, the widow forfeited the life estate. The devisees have since disputed the time for evaluating the stock of the company, thus delaying distribution of the estate assets by this litigation. Bynum, Jr. has insisted that the evaluation be back-dated to 1975 when the stock was first appraised in the administration of the estate and that when purchased credit be given him for anticipated capital gains tax.

This delay, brought about by Bynum, Jr. was not envisioned by the testator and the will gives no hint of the intent or desire of the testator in resolving the situation presented in this court.

We hold that...