GREEN EX REL. COTTRELL v. Cottrell, 3353.
Citation | 550 S.E.2d 324,346 S.C. 53 |
Decision Date | 11 June 2001 |
Docket Number | No. 3353.,3353. |
Court | South Carolina Court of Appeals |
Parties | Shirley E. J. GREEN, Personal Representative of the ESTATE OF Marilyn Anne COTTRELL, Appellant, v. Willard C. COTTRELL, Personal Representative of the ESTATE OF Martin L. COTTRELL, and National Bank of South Carolina, Trustee of the Martin L. Cottrell Trust, Dated November 21, 1997, Respondents. |
F. Craig Wilkerson, Jr., of Rock Hill; John S. Nichols, of Bluestein & Nichols, of Columbia, for appellant.
John G. Frampton, of Chellis & Frampton, of Summerville; Edward D. Buckley, Jr., Stephen P. Groves, Sr., and Stephen L. Brown, of Young, Clement, Rivers & Tisdale, of Charleston, for respondents.
Shirley E.J. Green, as Personal Representative of the Estate of Marilyn Anne Cottrell, appeals the Circuit Court's grant of summary judgment to Willard C. Cottrell, Personal Representative of the Estate of Martin L. Cottrell, and the National Bank of South Carolina, as Trustee of the Martin L. Cottrell Trust. The court held Marilyn Cottrell was not an omitted spouse pursuant to S.C.Code Ann. § 62-2-301. We affirm.
In 1996, 56-year-old Martin Cottrell, his brother Willard, and his sister-in-law met with Attorney Thomas Cothran to create Martin's estate plan.1 Martin told Cothran he wanted his assets to remain in his bloodline. Cothran drafted a will bequeathing Martin's personal property to his brother and devising his home to his father. The remainder of Martin's estate formed a residuary trust for the benefit of his niece and two nephews. Martin executed the will on April 23, 1996.
Martin returned to Cothran's office a year and a half later, this time with his girlfriend, Marilyn Anne Jackson. Martin wanted to revise his estate plan to include Marilyn and to accommodate any future marriage to her, but to keep his assets ultimately within his family bloodline. In an affidavit submitted to the Circuit Court, Cothran described this meeting as follows:
On April 4, 1998, 58-year-old Martin married 49-year-old Marilyn. Within eleven days of the marriage, both of them were dead. Martin died of an acute myocardial infarction on April 7, 1998. Marilyn died on April 15, 1998, from a cerebellar infarction due to basilar artery thrombosis. Neither Martin nor Marilyn had any surviving children.
Martin did not execute a new will after the marriage. His last will and testament was the one Cothran drafted in 1997. This will, dated November 21, 1997, provided:
I [Martin Cottrell] am not married. I have no children.
I have a special friend, MARILYN ANNE JACKSON, for whom I am making certain provisions in my estate plan (whether under this instrument or under any other instrument). Except as otherwise specifically provided, I intend for these provisions to apply for her benefit whether or not we should ever become husband and wife. (emphasis added).
In the will, Martin bequeathed his personal and household effects to Marilyn. The Revocable Trust Agreement, also dated November 21, 1997, provided:
The Settlor [Martin Cottrell] is not married. The Settlor has no children. The Settlor has a special friend, MARLYN ANNE JACKSON, for whom he is making certain provisions in his estate plan (whether under this instrument or under any other instrument). Except as otherwise specifically provided, the Settlor intends for these provisions to apply for her benefit whether or not they should ever become husband and wife.
(emphasis added).
In addition to the Trust Agreement's references to Marilyn as Martin's "special friend," the Agreement contained numerous references to Marilyn as the Settlor's "wife" or "spouse" and the Trust C provisions were only effective in the event Martin and Marilyn married.2 Martin's brother, Willard, was appointed personal representative of Martin's estate. Marilyn's sister, Shirley Green, was appointed personal representative of Marilyn's estate.
By petition dated December 3, 1998, Green filed an action claiming Marilyn was an "omitted spouse" and entitled to Martin's entire estate. The action further alleged breach of contract, unjust enrichment, and the creation of a constructive trust. Besides the entire estate, Green sought the delivery of personal property and homestead exemptions.
On January 4, 1999, Willard Cottrell moved for removal of the action to the Circuit Court. In a motion filed with the court on June 24, 1999, Green sought summary judgment. Willard later moved for summary judgment.
The Circuit Court heard the parties' cross motions on September 8, 1999. The judge subsequently ruled Marilyn was not an "omitted spouse" within the meaning of § 62-2-301 because Martin's will was made in contemplation of his marriage to Marilyn and "Marilyn Anne Cottrell was clearly provided for within the meaning of the omitted spouse statute and that there is no genuine issue of material fact in this regard." The trial judge granted summary judgment to Willard.3 Green appeals.
An action under the omitted spouse statute is an action at law. Timmerman v. Timmerman, 331 S.C. 455, 502 S.E.2d 920 (Ct.App.1998).
"Summary judgment is appropriate when `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Bruce v. Durney, 341 S.C. 563, 565, 534 S.E.2d 720, 722 (Ct.App.2000) (quoting Rule 56(c), SCRCP). This Court will review the granting of summary judgment under the same standard applied by the trial court pursuant to Rule 56, SCRCP. Murray v. Holnam, Inc., 344 S.C. 129, 542 S.E.2d 743 (Ct. App.2001).
Green argues genuine issues of material fact existed regarding whether Marilyn was an "omitted spouse" under § 62-2-301. Specifically, Green alleges the court failed to take notice of the language of the will that the parties were not married and to weigh the distribution of the assets to determine "if there was a meaningful `providing for'" of Marilyn.
Section 62-2-301 reads:
To continue reading
Request your trial-
Boone v. Sunbelt Newspapers, Inc., 3410.
...Vermeer Carolina's, Inc. v. Wood/ Chuck Chipper Corp., 336 S.C. 53, 518 S.E.2d 301 (Ct.App. 1999); see also Green v. Cottrell, 346 S.C. 53, 550 S.E.2d 324 (Ct.App.2001), cert. pending (stating that a trial court should grant motion for summary judgment when pleadings, depositions, answers t......
-
Trivelas v. South Carolina Dept. of Transp., 3421.
...to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), SCRCP; Green v. Cottrell, 346 S.C. 53, 550 S.E.2d 324 (Ct.App.2001), cert. pending; Bruce v. Durney, 341 S.C. 563, 534 S.E.2d 720 (Ct.App.2000); see also Tupper v. Dorchester County, 32......
-
Murphy v. Owens-Corning Fiberglas Corp., 3354.
....... The respondents rely upon State ex rel. McLeod v. C & L Corp., 280 S.C. 519, 313 S.E.2d 334 ......
-
Bell v. Estate of Bell
...out the decedent's probable intent and protecting the still-surviving spouse." Green ex rel. Estate of Cottrell v. Cottrell ex rel. Estate of Cottrell, 346 S.C. 53, 550 S.E.2d 324, 329 (Ct.App.2001) (internal quotation marks and citation omitted). Our legislature has chosen to balance these......