Holcombe-Burdette v. Bank of America

• Decision Date: 27 November 2006
• Docket Number: No. 4180.,4180.
• Citation: 640 S.E.2d 480
• Court: South Carolina Court of Appeals
• Parties: Donna L. HOLCOMBE-BURDETTE, as Personal Representative of the Estate of Charles A. Burdette, Appellant, v. BANK OF AMERICA, successor by merger to Farmer's Bank of Simpsonville, and Bertha B. Bozeman, as Co-Trustees of Trust, Bernie W. Burdette, Helen B. Peters, Bertha B. Bozeman, Individually, Robert McPherson Burdette, Alice Diane Kervin, and George Benjamin Peters, Respondents. In re Last Will and Testament of Bennie W. Burdette.

640 S.E.2d 480

Donna L. HOLCOMBE-BURDETTE, as Personal Representative of the Estate of Charles A. Burdette, Appellant, v. BANK OF AMERICA, successor by merger to Farmer's Bank of Simpsonville, and Bertha B. Bozeman, as Co-Trustees of Trust, Bernie W. Burdette, Helen B. Peters, Bertha B. Bozeman, Individually, Robert McPherson Burdette, Alice Diane Kervin, and George Benjamin Peters, Respondents.

In re Last Will and Testament of Bennie W. Burdette.

No. 4180.

Court of Appeals of South Carolina.

Heard November 9, 2006.

Decided November 27, 2006.

Rehearing Denied January 29, 2007.

James B. Drennan, III, of Spartanburg, for Appellant.

Bertha Bozeman, of Lexington and Laurel R.S. Blair and R. O'Neil Rabon, Jr., both of Greenville, for Respondents.

ANDERSON, J.:

Donna L. Holcome-Burdette, as the personal representative of the estate of Charles A. Burdette (Personal Representative), appeals the circuit court's order affirming the order of the probate court finding the testamentary trust (Trust) contained in the last will and testament (Will) of Bennie W. Burdette (Testator) requires a devisee to be living at the time the trust terminates in order to inherit trust assets. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

Testator died in 1965 leaving his Will dated February 8, 1955. Testator was predeceased by his wife, Ella, and survived by his five children: Bennie E. Burdette; Helen B. Peters; Bertha B. Bozeman; Claude M. Burdette; and Zelene B. Adams.

Under Item VIII of his Will, Testator bequeathed the residue of his estate in trust, naming The Farmer's Bank of Simpsonville (now Bank of America) and Bertha B. Bozeman as co-trustees. Item VIII(2)(c) directs the trustees, in the event of the death of Testator's wife, to apply the entire balance of Testator's residuary estate to the benefit of his daughter, Helen B. Peters, for her lifetime. Item VIII(2)(d) provides that upon the death of Peters and when her youngest natural child reaches the age of twenty-one, the trust shall cease and be divided as follows:

One share to the natural child or children per stirpes of my daughter, Helen B. Peters; one share to each of my children, Claude M. Burdette, Zelene B. Adams and Bertha B. Bozeman, living at the time of the termination of said trust. If either of my said three children shall have died before the termination of this trust, leaving a child or children surviving, the child or children of said deceased child of mine shall take per stirpes the share of the corpus and accumulated net income of which his, her or their parent would have taken if living. If any of my four children Helen B. Peters, Claude M. Burdette, Zelene B. Adams and Bertha B. Bozeman, should die without leaving a surviving child or children, the share of the corpus and accumulated net income which the child or children of Helen B. Peters, and the share which my other child or children would have taken if living, shall be divided among my surviving children, Claude M. Burdette, Zelene B. Adams, and Bertha B. Bozeman, and the child or children per stirpes of any of my said three deceased children who shall have died leaving a surviving child or children, as the case may be.

Peters died on July 3, 2003 and was survived by one son who was over the age of twenty-one. Claude M. Burdette died in 1970, predeceasing Peters, but was survived by two sons, one of whom was Charles A. Burdette. Charles A. Burdette also predeceased Peters and was not living at the time the trust terminated.

In December 2003, Personal Representative filed this action requesting the probate court to find, pursuant to Item VIII(2)(d), Charles A. Burdette had a vested remainder interest in the Trust based on having survived his father, Claude M. Burdette. The probate court held the plain language of Testator's Will "clearly articulates the Settlor's intention that the assets pass lineally, per stirpes, to heirs surviving Helen B. Peters and living at the time of Trust termination, or to their surviving children." On appeal the circuit court affirmed the ruling of the probate court.

STANDARD OF REVIEW

An appellate court's determination of the standard of review for matters originating in the probate court is controlled by whether the cause of action is at law or in equity. Golini v. Bolton, 326 S.C. 333, 338, 482 S.E.2d 784, 787 (Ct.App.1997); Univ. of S. Cal. v. Moran, 365 S.C. 270, 274, 617 S.E.2d 135, 137 (Ct.App.2005).

The construction of a will is an action at law. Epworth Children's Home v. Beasley, 365 S.C. 157, 165, 616 S.E.2d 710, 714 (2005); Estate of Stevens v. Lutch, 365 S.C. 427, 430, 617 S.E.2d 736, 737 (Ct.App. 2005); NationsBank of S.C. v. Greenwood, 321 S.C. 386, 392, 468 S.E.2d 658, 662 (Ct. App.1996). "On appeal from an action at law that was tried without a jury, the appellate court can correct errors of law, but the findings of fact will not be disturbed unless found to be without evidence which reasonably supports the judge's findings." Blackmon v. Weaver, 366 S.C. 245, 249, 621 S.E.2d 42, 44 (Ct.App.2005). Because Personal Representative has admitted that no facts are in dispute in this case, this court can review conclusions of law based on those facts. See Coakley v. Horace Mann Ins. Co., 363 S.C. 147, 152, 609 S.E.2d 537, 540 (Ct.App.2005).

In the case sub judice, a trust is encapsulated within the four corners of a will. An action to construe or interpret a testamentary trust is equitable in nature. Waddell v. Kahdy, 309 S.C. 1, 4-5, 419 S.E.2d 783, 785-86 (1992). A declaration of rights arising in the administration of a trust generally lies in equity. See First-Citizens Bank and Trust Co. of S.C. v. Hucks, 305 S.C. 296, 298, 408 S.E.2d 222, 223 (1991).

It is not necessary for this Court to resolve the obvious conundrum as to whether the standard of review in this case is at law or in equity. Applying either standard, the result will be the same.

LAW/ANALYSIS

Personal Representative argues the trial court erred in finding any interest Charles A. Burdette had in the residuary of Testator's estate (to be distributed at the dissolution of the trust) was conditioned upon Charles A. Burdette surviving Helen B. Peters. Specifically, Personal Representative avers Charles A. Burdette's interest in the Trust assets vested at the time Claude M. Burdette died in 1970 because no condition precedent remained—the only condition precedent was that Charles survive his father, Claude. It is Personal Representative's contention that, while Testator intended to require that his three named children survive their sister Helen in order to take a share of the Trust principal at her death, he did not desire this same requirement be placed on their children, i.e. his grandchildren. We disagree.

1. Construction of Wills

The paramount rule of will construction is to determine and give effect to the testator's intent. S.C.Code Ann. § 62-1-102(b)(2) ("The underlying purposes and policies of this Code are ... (2) to discover and make effective the intent of a decedent in the distribution of his property."); Epworth Children's Home v. Beasley, 365 S.C. 157, 165, 616 S.E.2d 710, 714 (2005); Bob Jones Univ. v. Strandell, 344 S.C. 224, 230, 543 S.E.2d 251, 254 (Ct.App.2001); Matter of Clark, 308 S.C. 328, 330, 417 S.E.2d 856, 857 (1992) (stating the cardinal rule of will construction, as well as the primary inquiry of the appellate court, is the determination of the testator's intent). "[A] testator's intention, as expressed in his will, governs the construction of it if not in conflict with law or public policy...." In re Estate of Prioleau, 361 S.C. 627, 631, 606 S.E.2d 769, 772 (2004); White v. White, 241 S.C. 181, 185, 127 S.E.2d 627, 629 (1962). In construing the provisions of a will, every effort must be made to determine and carry out the intentions of the testator. Prioleau, 361 S.C. at 631, 606 S.E.2d at 772; Citizens & S. Nat'l Bank v. Cleveland, 200 S.C. 373, 377, 20 S.E.2d 811, 812 (1942). Indeed, "[t]he rules of construction are subservient to the primary consideration of ascertaining what the testator meant by the terms used in the written instrument itself ...." Kemp v. Rawlings, 358 S.C. 28, 34, 594 S.E.2d 845, 849 (2004); Allison v. Wilson, 306 S.C. 274, 278, 411 S.E.2d 433, 435 (1991); see also Black v. Gettys, 238 S.C. 167, 173, 119 S.E.2d 660, 662-63 (1961) (stating while there are certain rules of construction to be followed in seeking the intention of the testator, they are all subservient to the paramount consideration of determining what the testator meant by the terms used).

In determining the intent of the deceased, a court must always look first to the language of the will itself. Pate v. Ford, 297 S.C. 294, 299, 376 S.E.2d 775, 778 (1989); Bob Jones Univ., 344 S.C. at 230, 543 S.E.2d at 254 ("In construing a will, a court's first reference is always to the will's language itself."). The primary rule of ascertaining intent is that "[r]esort is first to be had to the instrument's language, and if such is perfectly plain and capable of legal construction, such language determines the force and effect of the instrument." Chiles v. Chiles, 270 S.C. 379, 383-84, 242 S.E.2d 426, 429 (1978) (quoting Superior Auto. Ins. Co. v. Maners, 261 S.C. 257, 263, 199 S.E.2d 719, 722 (1973)). The court must be guided by the words which the testator has used, reading them in the light of established principles of law. White, 241 S.C. at 186, 127 S.E.2d at 629.

"In construing the language of a will, the appellate court must give words their ordinary, plain meaning unless it is clear the testator intended a different sense, or unless such a meaning would lead to an inconsistency with the testator's declared intention." Epworth Children's Home, 365 S.C. at 165, 616 S.E.2d at 714-15; accord Bob Jones Univ., 344 S.C. at 230, 543 S.E.2d at 254. "A will must be read in the ordinary and grammatical sense of the words employed, unless some obvious absurdity, repugnancy or...