In re Estate of Hyman, 3895.

• Decision Date: 22 November 2004
• Docket Number: No. 3895.,3895.
• Citation: 606 S.E.2d 205,362 S.C. 20
• Court: South Carolina Court of Appeals
• Parties: In re The ESTATE OF Melvin HYMAN; In re The Estate of Maintzie R. Hyman; In re The Ancillary Estate of Melvin Richardson Hyman, Sr. M. Richardson Hyman, Jr., Appellant, v. Maintzie Carolina Gugliotti; Mary Caroline Hyman, as Personal Representative of the Estate of Maintzie R. Hyman; The Estate of Maintzie R. Hyman; Mary Caroline Hyman, Individually; Mary Caroline Hyman, as Guardian of Benjamin Fraser Hyman, a person who is Incapacitated or Incompetent; Benjamin Fraser Hyman, a person who is Incapacitated of Incompetent; and Sara H. Hyman, Respondents.

362 S.C. 20

606 S.E.2d 205

In re The ESTATE OF Melvin HYMAN; In re The Estate of Maintzie R. Hyman; In re The Ancillary Estate of Melvin Richardson Hyman, Sr.

M. Richardson Hyman, Jr., Appellant, v. Maintzie Carolina Gugliotti; Mary Caroline Hyman, as Personal Representative of the Estate of Maintzie R. Hyman; The Estate of Maintzie R. Hyman; Mary Caroline Hyman, Individually; Mary Caroline Hyman, as Guardian of Benjamin Fraser Hyman, a person who is Incapacitated or Incompetent; Benjamin Fraser Hyman, a person who is Incapacitated of Incompetent; and Sara H. Hyman, Respondents.

No. 3895.

Court of Appeals of South Carolina.

Heard October 12, 2004.

Decided November 22, 2004.

Melvin Richardson Hyman, Jr., of Charleston, for Appellant.

Charles J. Hupfer, Jr., and John R. Chase, both of Florence, Maintzie Caroline Gugliotti, of Charleston, and Mary Caroline Hyman and Benjamin Fraser Hyman, both of Savannah, for Respondent.

PER CURIAM:

M. Richardson Hyman, Jr. appeals a circuit court order affirming the special referee's decision that a vested remainder in certain stocks owned by Hyman's father passed to his wife through the residuary clause of his will and not through a direct devise to his children. We affirm.

FACTS

Following a lifetime of distinguished service to the people of this state as a highly respected member of the South Carolina Bar, Melvin Hyman passed away in 1973. He was survived by his wife, Maintzie R. Hyman, and two children, Melvin R. Hyman and Mary C. Hyman. In his last will and testament, Melvin Hyman granted a life estate in certain securities to his wife, with a remainder interest to his two children. Melvin Hyman expressly stated in his will that his children's remainder interest would "vest immediately upon [his] death, subject only to the life estate devised and bequeathed to my said wife."

In 1984, Melvin Hyman's son, Melvin R. Hyman ("Testator"), was diagnosed with a life threatening disease. Because his condition worsened over the years following this diagnosis, Testator decided to undergo an operation in September 1987. In contemplation of serious risks inherent in this particular kind of surgery, he executed a will shortly before the operation. A few weeks following the surgery, Testator passed away. Testator was survived by his mother, Maintzie; his second wife, Sara Hyman; and three children from his first marriage, M. Richardson Hyman, Jr. ("Appellant"), Benjamin F. Hyman, and M. Caroline Hyman.

Article three of Testator's will, which establishes a trust for the benefit of his children, states the following:

I will, devise, and bequeath to my three children any and all property which I may receive by reason of inheritance from my mother's [Maintzie's] estate.

Testator also provided that the residue of his estate was to be distributed to his wife, Sara Hyman, outright and free of trust.

In January 1999, Maintzie R. Hyman, wife of Melvin Hyman and mother of Testator, passed away, terminating her life estate in the aforementioned securities at issue in this case. At this time, the remainder interests devised to Testator and Mary C. Hyman became possessory. Sara Hyman, Testator's wife, began receiving distributions and paying taxes on Testator's portion of the securities pursuant to the residuary clause of Testator's will.

In 2001, Appellant filed this action seeking to reopen Testator's estate and declare Testator's three children the lawful heirs of the securities pursuant to article three of Testator's will. The case was referred by consent of the parties to a special referee. At trial, Appellant offered testimony, over the respondents' objection, from Mary C. Hyman, sister of Testator, which evidenced Testator's intent that his remainder interest in the securities pass through his will to his children, notwithstanding the will's express language.¹ Although this testimony was allowed at trial, the referee later determined it was improperly admitted, as the will contained no ambiguity which would warrant the admission of extrinsic evidence. The referee found, by the plain and ordinary meaning of the will's language, that the remainder interest in the securities owned y Testator passed to his wife through the residuary clause of his will and not to his children by the direct devise of article three. The circuit court affirmed the referee's decision. This appeal follows.

STANDARD OF REVIEW

The standard of review applicable to cases originating in the probate court is controlled by whether the underlying cause of action is at law or in equity. Howard v. Mutz, 315 S.C. 356, 361-62, 434 S.E.2d 254, 257-58 (1993). This is an action at law. NationsBank of South Carolina v. Greenwood, 321 S.C. 386, 392, 468 S.E.2d 658, 661(Ct.App.1996) (holding an action to construe a will is an action at law). If a proceeding in the probate court is in the nature of an action at law, review by this court extends merely to the correction of legal errors. Townes Assocs. Ltd. v. City of Greenville, 266 S.C. 81, 86, 221 S.E.2d 773, 775 (1976).

LAW/ANALYSIS

Appellant argues the probate court erred in finding no ambiguity in Testator's will and refusing to consider extrinsic evidence to ascertain Testator's true intent. We disagree.

In construing a will, a court should give effect to the expressed intention of the testator. Bagwell v. Alexander, 285 S.C. 331, 329 S.E.2d 771 (Ct.App.1985). In ascertaining this intent, a court's first reference is always to the will's language itself. Fenzel v. Floyd, 289 S.C. 495, 498, 347 S.E.2d 105, 107 (Ct.App.1986). When construing this language, the reviewing tribunal must give the words contained in the document their ordinary and plain meaning. In re Estate of Fabian, 326 S.C. 349, 353, 483 S.E.2d 474, 476(Ct.App.1997). Where the testator's intent is ascertainable from the will and not counter to law, we will give it effect. Id. Only when the will's terms or provisions are ambiguous may the court resort to extrinsic evidence to resolve the ambiguity. See Fenzel, 289 S.C. at 498,347 S.E.2d at 107.

In the case at bar, the Testator's remainder interest in the securities clearly does not pass through article three of the will to his children when the language of article three is given its plain and ordinary meaning. The provision states, "I will, devise, and bequeath to my three children any and all property which I may receive by reason of inheritance from my mother's estate." Testator owned his remainder interest in the securities at the time he executed his will. The remainder interest, though subject to his mother's life estate, was at no time part of his mother's actual estate and, thus, never passed to him through inheritance from his mother. Appellant contends, however, that the provision is ambiguous; therefore, the court should consider extrinsic evidence to ascertain Testator's true intent. We do not agree with this position.

There are two types of ambiguities found in the construction of wills:

Ambiguities ... are patent and latent; the distinction being that in the former case the uncertainty is one which arises upon the words of the ... instrument as looked at in themselves, and before any attempt is made to apply them to the object which they describe, while in the latter case the uncertainty arises, not upon the words of the ... instrument as looked at in themselves, but upon those words when applied to the object or subject which they describe.

Fabian, 326 S.C. at 353, 483 S.E.2d at 476 (quoting Jennings v. Talbert, 77 S.C. 454, 456, 58 S.E. 420, 421 (1907)). It is undisputed that the will in the case before us contains no patent ambiguity arising from the will's own language. It is, however, argued that, when one considers Testator's property and the circumstances known to him at the execution of his will, a latent ambiguity arises and extrinsic evidence may be admitted to resolve it.

Appellant first contends the will...