In re Estate of Boynton, 3662.

• Court: Court of Appeals of South Carolina
• Citation: 355 S.C. 299,584 S.E.2d 154
• Decision Date: 21 July 2003
• Docket Number: No. 3662.,3662.
• Parties: In the Matter of the ESTATE OF Gordon S. BOYNTON. Ervin Mathias, as Co-Personal Representative of the Estate of Gordon S. Boynton; Gordon Benjamin Kearse; Loraine K. Clark; James G. Kearse; Esther S. Kearse, as Personal Representative of the Estate of Henry A. Kearse; and June Kearse, as Personal Representative of the Estate of Richard M. Kearse, Respondents, v. Janice Taylor Clark, Individually and as Co-Personal Representative of the Estate of Gordon S. Boynton, Appellant.

355 S.C. 299
584 S.E.2d 154

In the Matter of the ESTATE OF Gordon S. BOYNTON.
Ervin Mathias, as Co-Personal Representative of the Estate of Gordon S. Boynton; Gordon Benjamin Kearse; Loraine K. Clark; James G. Kearse; Esther S. Kearse, as Personal Representative of the Estate of Henry A. Kearse; and June Kearse, as Personal Representative of the Estate of Richard M. Kearse, Respondents,
v.
Janice Taylor Clark, Individually and as Co-Personal Representative of the Estate of Gordon S. Boynton, Appellant

No. 3662.

Court of Appeals of South Carolina.

Heard March 12, 2003.

Decided July 21, 2003.

355 S.C. 301

James D. Mosteller, of Columbia, for Appellant

B. Michael Brackett, of Columbia, for Respondents.

STILWELL, J.:

Janice Taylor Clark, the illegitimate daughter of Henry Taylor, appeals the circuit court's decision that the remainder devise to the "child or children" of Taylor in Item I of Gordon Boynton's will did not include illegitimate children. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

Boynton died testate in 1954, devising a life estate in an 860 acre farm to Taylor with the remainder to Taylor's child or children and a contingent remainder to Boynton's heirs at law should Taylor die without children. Taylor died in 1995 with Clark as his only issue. On December 6, 2000, Ervin Mathias, as co-personal representative of Boynton's estate, and Boynton's heirs filed a complaint in probate court seeking a declaratory judgment that Boynton's use of the words "child or children," by definition, excluded Clark because she was illegitimate.¹ By agreement of the parties, the matter was submitted on stipulated facts and briefs to the probate court. The probate court found Clark was the "sole remainderman of the life estate interest" under Boynton's will. Mathias appealed to the circuit court. Clark cross-appealed, alleging the probate court erred in refusing to consider evidence outside the written stipulations. The circuit court dismissed the cross-appeal and reversed the probate court.

STANDARD OF REVIEW

"When an appeal involves stipulated or undisputed facts, an appellate court is free to review whether the trial court properly applied the law to those facts." WDW Props. v. City of Sumter, 342 S.C. 6, 10, 535 S.E.2d 631, 632 (2000). "In such cases, the appellate court owes no particular deference

355 S.C. 302

to the trial court's legal conclusions." J.K. Constr., Inc. v. W. Carolina Reg'l Sewer Auth., 336 S.C. 162, 166, 519 S.E.2d 561, 563 (1999); see also Duke Power Co. v. Laurens Elec. Coop., Inc., 344 S.C. 101, 104, 543 S.E.2d 560, 561-62 (Ct.App.2001). On appeal from the final order of the probate court, the circuit court should apply the same standard of review that the Supreme Court or Court of Appeals would apply on appeal. In re Howard, 315 S.C. 356, 361, 434 S.E.2d 254, 257 (1993)

LAW/ANALYSIS

Clark argues the circuit court erred when it applied 1954 law to construe the language of Boynton's will. We disagree.

Generally, the provisions of a will and restrictions on the power of testamentary disposition are determined according to the law in effect at the time of the testator's death or the time when the will is executed. 79 Am.Jur.2d Wills § 55 (2002); see 4 Bowe-Parker, Page on Wills § 30.27 (1961 & Supp.2003); 96 C.J.S. Wills § 880 (2001). A will speaks at the time of the testator's death. See, e.g., Shelley v. Shelley, 244 S.C. 598, 605, 137 S.E.2d 851, 854 (1964); Landrum v. Branyon, 161 S.C. 235, 246-48, 159 S.E. 546, 550 (1931). The modern probate code, which took effect in 1987, states "a substantive right in the decedent's estate accrues in accordance with the law in effect on the date of the decedent's death." S.C.Code Ann. § 62-1-100(b)(4) (Supp.2002). Boynton executed his will in August 1954 and died three weeks later. Thus, the law as it existed in 1954 applies.

Clark insists to construe the will the court should apply the law as it existed at the time of the death of the life tenant Taylor. Clark relies on the holding in Freeman v. Freeman, 323 S.C. 95, 100-105, 473 S.E.2d 467, 471-73 (Ct.App.1996) and Haskell v. Wilmington Trust Co., 304 A.2d 53 (Del.1973) superseded by statute as stated in Annan v. Wilmington Trust Co., 559 A.2d 1289, 1292 n. 2 (Del.1989). Freeman concerned an illegitimate heir who was not permitted to inherit from her putative father because she could not satisfy the condition set out in Mitchell v. Hardwick, 297 S.C. 48, 51, 374 S.E.2d 681, 683 (1988) that she conclusively establish

355 S.C. 303

paternity within the statutory timeframe. Freeman did not involve a testate estate, will...