Gallagher v. Evert, 3573.

• Decision Date: 25 November 2002
• Docket Number: No. 3573.,3573.
• Citation: 353 S.C. 59,577 S.E.2d 217
• Court: South Carolina Court of Appeals
• Parties: Gregg M. GALLAGHER, as Personal Representative of the Estate of Eleanor L. Evert, Appellant, v. Robert C. EVERT, as Personal Representative of the Estate of George C. Evert, Respondent.

353 S.C. 59

577 S.E.2d 217

Gregg M. GALLAGHER, as Personal Representative of the Estate of Eleanor L. Evert, Appellant, v. Robert C. EVERT, as Personal Representative of the Estate of George C. Evert, Respondent.

No. 3573.

Court of Appeals of South Carolina.

Heard October 10, 2002.

Decided November 25, 2002.

Rehearing Denied February 26, 2003.

Fredrick Scott Pfeiffer, of Greenville; and William A. Bryan, of Surfside Beach, for Appellant.

David J. Gundling, and H. Randolph Haldi, both of Pawleys Island, for Respondent.

HEARN, C.J.:

The central issue in this case is whether the estate of a surviving spouse who had filed her elective share claim may receive that share when the surviving spouse dies before the determination of her elective share. We hold that the estate is entitled to the share.

FACTS

Husband and Wife married in April of 1993. Husband died testate on January 5, 1998, survived by Wife and a son, Robert Evert, from a previous marriage. Husband's will dated June 26, 1990, which was admitted to probate on February 23, 1998, named his son as personal representative and sole heir. On May 1, 1998, Wife filed an Election by Surviving Spouse to take an elective share of Husband's estate. Wife died on May 18, 1999, and her son from a previous marriage, Gregg Gallagher, was appointed personal representative of her estate. Gallagher brought this action in probate court in his capacity as personal representative of her estate to recover Wife's elective share.¹

The probate court denied the elective share to Wife's estate, holding that the elective share was intended to provide for the surviving spouse during the remainder of her lifetime "so as to prevent the surviving spouse from becoming a ward of the state." It further found that the elective share "was not intended to be employed so as to augment an estate for the benefit of heirs." Finally, the probate court held that any claim for an elective share was fully satisfied by non-probate assets. However, the probate court ordered Husband's estate to pay Wife's estate $8,000 as reimbursement for a previous estate debt paid by Wife and also ordered Husband's estate to pay attorney's fees to Wife's estate. Both parties appealed to the circuit court.

On May 26, 2000, the circuit court issued an order affirming the probate court's denial of the elective share, reversing the probate court's grant of attorney's fees to Wife's estate, and reversing the probate court's decision to reimburse Wife's estate with $8,000. While the circuit court found the probate court erred in concluding the right to an elective share does not survive the death of a surviving spouse, it affirmed the denial of the elective share finding "it would be absurd to hold that the heirs of Mrs. Evert's estate should be entitled to the benefits of an elective share simply because the surviving spouse made the election during her lifetime." The circuit court found the result unjust, as well as absurd, and placed particular significance on the fact that Wife received over $219,000 in non-probate assets.

Gallagher served a motion to alter or amend the circuit court's order pursuant to Rule 59(e), SCRCP. The circuit court denied the motion and Gallagher now appeals from the circuit court's finding that Wife's estate was not entitled to her elective share of Husband's estate, that it was not entitled to an $8,000 loan repayment from Husband's estate, and that it was not entitled to attorney's fees.

DISCUSSION

I. Timeliness of Gallagher's appeal to Circuit Court

As an initial matter, we address Evert's argument that Gallagher failed to timely appeal the decision of the circuit court by failing to provide the circuit court proper notice of his motion to alter or amend judgment as required by Rule 59(g), SCRCP. Evert contends that because a copy of the Rule 59(e) motion was not provided to the circuit court within ten days of the filing of the motion, the time for appeal was not stayed, and thus this appeal is untimely under Rule 203, SCACR. We disagree.²

Although the circuit court acknowledged that it never received a copy of the motion until December 12, 2000, and "on this ground alone" it could deny the motion, the circuit court went forward and considered the matters presented in Gallagher's memorandum in support of the motion. Because the circuit court found it appropriate to hear the matter, we find no error in the circuit court's decision to decide the motion despite Gallagher's failure to comply with Rule 59(g), SCRCP. The notes to Rule 59, SCRCP, indicate that subsection (g) was added "to help insure the judge is promptly notified that the motion has been filed." There is no indication that the failure to transmit a copy of the motion to the circuit court affects the tolling provision of Rule 203(b)(1), SCACR. Therefore, the time for filing the notice of appeal did not begin to run until after the circuit court denied the motion on December 27, 2000. After the circuit court denied the motion, only twenty days passed before Gallagher filed his notice of appeal on January 16, 2001, thus Gallagher complied with Rule 203(b), SCACR.

II. Elective Share

Gallagher argues the circuit court erred in refusing to allow Wife's estate to recover her elective share of Husband's estate. We agree.

The issue of whether the heirs of a surviving spouse are entitled to the surviving spouse's elective share where the spouse applies for the share, but dies prior to its determination, is an issue of first impression in this state. We begin our analysis by considering the language of the statute governing the elective share. Section 62-2-201 provides that "if a married person domiciled in this State dies, the surviving spouse has a right of election to take an elective share of one-third of the decedent's probate estate." S.C.Code Ann. § 62-2-201(a) (Supp.2001). Additionally, Section 62-2-203 provides that "the right of election of the surviving spouse may be exercised only during his lifetime by him or by his duly appointed attorney in fact."³ S.C.Code Ann. § 62-2-203 (Supp.2001).

The cardinal rule of statutory construction is to ascertain and effectuate the intent of the legislature. Mid-State Auto Auction of Lexington, Inc. v. Altman, 324 S.C. 65, 69, 476 S.E.2d 690, 692 (1996). "Unless there is something in a statute requiring a different interpretation, the words used in the statute must be given their ordinary meaning." Mullinax v. J.M. Brown Amusement, Co., 326 S.C. 453, 458, 485 S.E.2d 103, 106 (Ct.App.1997). "Statutes, as a whole, must receive practical, reasonable, and fair interpretation, consonant with the purpose, design, and policy of lawmakers." TNS Mills, Inc. v. South Carolina Dep't of Revenue, 331 S.C. 611, 624, 503 S.E.2d 471, 478 (1998). If a statute's language is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion for employing rules of statutory interpretation and the court has no right to look for or impose another meaning. Miller v. Doe, 312 S.C. 444, 447, 441 S.E.2d 319, 321 (1994). "On the other hand, where a statute is ambiguous, the Court must construe the terms of the statute." Lester v. South Carolina Workers' Compensation Comm'n, 334 S.C. 557, 561, 514 S.E.2d 751, 752-53 (1999).

When confronted with this question, other jurisdictions with similar elective share statutes have determined that when a surviving spouse has validly exercised her right to the elective share, her personal representative may file a petition for the elective share determination for the benefit of the surviving spouse's estate. In Smail v. Hutchins, 491 So.2d 301, 302 (Fla.App.1986), the court found that "the right to share in the decedent's estate is not lost if the surviving spouse dies after the election but before the court determines the amount of the elective share." The Florida court rejected the argument that the heirs and not the surviving spouse would benefit:

While this argument has been recognized to prevent a personal representative from exercising a deceased "surviving" spouse's election, the reasoning is unavailing here. That heirs of a surviving spouse may benefit from an election is not determinative. What is determinative is whether the surviving spouse validly exercised the election. Merely because a surviving spouse's heirs may benefit from an election is no reason to deny the surviving spouse's statutory right to choose the elective share. If a surviving spouse dies shortly after receiving the elective share the heirs will most certainly be the primary beneficiaries of the election.

Id. at 303 (emphasis added) (internal citations omitted).

Pennsylvania addressed a similar situation in Trezak v. Jierski 443 Pa.Super. 276, 661 A.2d 412 (1995), and determined that a surviving spouse's heirs could pursue her elected but undetermined share. The Pennsylvania Superior Court found "there was no reason in law or equity why the claims of a surviving spouse, now deceased, being pursued by her heirs, should be weakened by death." Id. at 413. Similarly, the Nebraska Supreme Court has held that once a surviving spouse petitions for her elective share that right becomes vested.

When a surviving spouse has petitioned for an elective share, the right to pursue an elective share is no longer a surviving spouse's potential personal right subject to abatement, but has become a right vested in the surviving spouse. Therefore, if a surviving spouse dies after filing a petition for an elective share ..., the proceeding to enforce the spouse's election as a vested right may be revived by the personal representative of the estate of the spouse who has made the election but who has died before distribution of property pursuant to the elective share.

In re Estate of Stephenson, 243 Neb. 890, 503 N.W.2d 540, 545 (1993).

Significantly, Pennsylvania, Florida, and Nebraska's elective share statutes are similar to our elective share statute in that the right of...