Simpson v. Sanders

• Decision Date: 06 April 1993
• Docket Number: No. 24083,24083
• Citation: 445 S.E.2d 93,314 S.C. 413
• Parties: Jody SIMPSON, as Personal Representative of the Estate of Marie Johnston Demos, Appellant, v. Jackie SANDERS, as Personal Representative of the Estate of Louis A. Demos, Respondent. . Heard
• Court: South Carolina Supreme Court

Page 93

445 S.E.2d 93

314 S.C. 413

Jody SIMPSON, as Personal Representative of the Estate of Marie Johnston Demos, Appellant, v. Jackie SANDERS, as Personal Representative of the Estate of

Louis A. Demos, Respondent.

No. 24083.

Supreme Court of South Carolina.

Heard April 6, 1993.

Decided June 6, 1994.

Rehearing Denied June 30, 1994.

D. Cravens Ravenel and Catherine Garbee Griffin, both of Baker, Barwick, Ravenel & Bender, Columbia, for appellant.

Robert F. McMahan, Jr., Columbia, for respondent.

FINNEY, Justice:

The issue in this appeal is whether the husband timely exercised his statutory right to an elective share of his deceased wife's estate. The probate court upheld husband's election as did the circuit court on appeal. We reverse and remand.

Appellant is the personal representative of Marie Johnston Demos' (wife's) estate and respondent is the personal representative of Louis A. Demos' (husband's) estate. Wife predeceased husband and left him certain property in her will. Within weeks of wife's death, husband informed appellant and the estate's attorney that he intended to claim his elective share pursuant to S.C.Code Ann. § 62-2-201 (Supp.1993). Husband filed two timely petitions with the probate court as required by S.C.Code Ann. § 62-2-205(a) (Supp.1993). Although there was some evidence that copies of these petitions were timely mailed to appellant as required by § 62-2-205(a), she testified she never received either petition. Thus, there was a question of fact whether the petitions were, in fact, mailed. Foster v. Ford Motor Credit Co., 302 S.C. 450, 395 S.E.2d 440 (1990).

Appellant sought to disallow husband's claim to an elective share of wife's estate on the ground he had failed to comply with the requirement of § 62-2-205(a) that he either mail or deliver a copy of the petition to her within the statutory time period. Appellant contended that since § 62-2-205 created a new liability where there was none before, and established a time limit within which the action must be commenced, strict compliance with the statute's terms was necessary in order to maintain an action under it. See, e.g., Knight Publishing Co. v. University of South Carolina, 295 S.C. 31, 367 S.E.2d 20 (1988) ¹; see also Merchants Mut. Ins. Co. v. South Carolina Second Injury Fund, 277 S.C. 604, 291 S.E.2d 667 (1982). The probate judge disagreed, held the statute was remedial, and, therefore, entitled to a liberal construction. He found that since appellant admitted actual knowledge of husband's intended claim, literal compliance with the statute was irrelevant. The probate judge concluded he did not need to determine whether, in fact, either petition was timely mailed. The circuit court affirmed. We reverse and remand.

In 1987 when the elective share statute was enacted, South Carolina's common law did not require a spouse to devise any of her property to a surviving spouse. Therefore...