Dean v. Kilgore, 2073

• Citation: 313 S.C. 257,437 S.E.2d 154
• Decision Date: 14 June 1993
• Docket Number: No. 2073,2073
• Court: Court of Appeals of South Carolina
• Parties: Clarence DEAN and Dyann D. Collins, Appellants, v. Macie KILGORE, Respondent. . Heard

Page 154

437 S.E.2d 154

313 S.C. 257

Clarence DEAN and Dyann D. Collins, Appellants, v. Macie KILGORE, Respondent.

No. 2073.

Court of Appeals of South Carolina.

Heard June 14, 1993.

Decided Sept. 20, 1993.

Richard E. Thompson, Jr., of Lowery, Thompson and King, Anderson, for appellant.

James S. Belk, Anderson, for respondent.

HOWELL, Chief Judge:

This is an action to remove a personal representative appointed pursuant to the terms of a will. Appellants Clarence Dean and Dyann Collins are son and daughter of the deceased, Sam Dean. They sought the removal of respondent, Macie Kilgore, as personal representative of their father's estate. The probate court denied the petition to remove Kilgore and Judge Drew, sitting as a Special Circuit Judge for Anderson County, affirmed the decision of the probate court. Appellants now appeal to this court. We affirm.

This court and the Supreme Court, in a line of recent cases, have clearly addressed the important rules concerning the standard of review of cases appealed from the probate court. Howard v. Mutz, 434 S.E.2d 254 (S.C.Sup.Ct.1993) (Davis Adv.Sh. No. 19); Eagles v. South Carolina Nat'l Bank, 301 S.C. 402, 392 S.E.2d 187 (Ct.App.1990). These cases hold that the determination of the standard of review by an appellate court of matters originating in the probate court is controlled by whether the cause of action is at law or in equity. Id. To make this determination, the appellate court must look to the essential character of the cause of action alleged by the petitioners in the court below. If the essential character of the petitioner's cause of action is grounded on equitable rights and equitable relief is sought, the case is regarded as equitable and the appellate court has jurisdiction to make findings in accordance with its own view of the preponderance of the evidence. Eagles, 301 S.C. at 408, 392 S.E.2d at 191.

On the other hand, if the essential nature of the cause of action is legal, the action to be taken by the circuit court is controlled by its determination of whether or not there is any evidence to support the factual findings of the court below. The appellants in this case have sought to remove the personal representative of their father's estate. This affirmative relief sought clearly lies in equity. The circuit court sitting as an appellate court affirmed the findings of the probate court. See S.C.Code Ann. § 62-1-308 (1987 & Supp.1992).

This raises the question of whether or not this court should apply the two-judge rule. See Townes Assoc., Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976) (an action at equity first tried by master or special referee subsequently affirmed or concurred in by circuit court will not be disturbed on appeal unless found to be without evidentiary support).

Although Townes sets forth the two-judge rule for equity cases first tried by a master or special referee and subsequently affirmed or concurred in by the circuit court, we see no reason not to apply the same rule to an affirmance or concurrence of the circuit court with the probate court. See Eagles, 301 S.C. at 408, 392 S.E.2d at 191 (in an appeal from the circuit court of an equity case originating in the probate court, we make findings in accordance with our own view of the preponderance or greater weight of the evidence where the probate court and the circuit court ... have disagreed on the material issue in the case) (emphasis added)). The court in Eagles adopted the conclusions of Price v. Derrick and Talbot v. James that when a Master and Circuit Judge disagree in an equity case regarding material issues in the case, the Supreme Court may make...