South Carolina Nat. Bank of Charleston v. May

• Decision Date: 08 November 1947
• Docket Number: 16007.
• Parties: SOUTH CAROLINA NAT. BANK OF CHARLESTON v. MAY.
• Court: South Carolina Supreme Court

44 S.E.2d 836

211 S.C. 290

SOUTH CAROLINA NAT. BANK OF CHARLESTON v. MAY.

No. 16007.

Supreme Court of South Carolina

November 8, 1947

Hagood, Rivers & Young, of Charleston, for appellant.

Mitchell & Horlbeck, of Charleston, for respondent.

OXNER, Justice.

This is an appeal from a decree compelling specific performance of a contract for the purchase of a lot of land in the town of Summerville, Dorchester County. The vendee, Annie Hill May asserted in her answer that she was ready and willing to comply with her contract if she could obtain a clear and marketable title to the premises, but alleged that any title given by the vendor, the South Carolina National Bank of Charleston, as trustee under the will of Lancelot Minor Harris, would be 'defective and questionable' because said will was proved in the Probate Court of Charleston County when the testator was at the time of his death a resident of Dorchester County. It is claimed that for this reason the Probate Court of Charleston County had no jurisdiction to admit the will to probate and all proceedings taken in the court are null and void.

The facts disclosed by the pleadings and agreed upon by counsel are as follows: Lancelot Minor Harris died on March 24, 1941 leaving of full force and effect a will dated July 19, 1940 wherein, after several preliminary bequests, he devised the residue of his estate, including the property involved in this controversy, to the South Carolina National Bank in trust to invest and manage the same and to pay the income therefrom to his wife during her life. Upon her death, the bank was directed to sell the whole of said residuary estate at public or private sale and from the proceeds of sale to pay the sum of $5000 to Mrs. Annie Hill May, who is the purchaser under the contract now sought to be enforced, the sum of $1000 to Myrtle Waugh, the sum of $1000 to Cassandra Kemble Barnes, and to pay the balance of the proceeds from the sale of said residuary estate to the Trustees of the College of Charleston. The Bank was also appointed as executor. The executor duly qualified in the Probate Court of Charleston County on April 4, 1941. It paid the taxes and debts of the estate, the legacies to Myrtle Waugh and Cassandra Kemble Barnes and after fully administering upon said estate, was discharged as executor on May 31, 1944. The widow of the testator has since died. The Bank is now acting as trustee under the will, and in this capacity during the year 1946 entered into the contract of sale which it now seeks to enforce.

The Trustees of the College of Charleston, who are residuary legatees under the will, filed an answer asking that the probate of the will in Charleston County be confirmed. The Court below held that even though the testator was at the time of his death a resident of Dorchester County, the jurisdiction of the Probate Court of Charleston County could not be impeached collaterally in this action because the want of such jurisdiction did not appear affirmatively upon the face of the record, and concluded that the Bank, as trustee could convey a clear and marketable title to the property.

It will be observed that the estate has been fully administered and the executor discharged. All creditors have been paid. It is conceded that the will is valid and that the estate has been settled strictly in conformity with its provisions. All the beneficiaries under the terms of the will are satisfied with the administration of the estate and make no attack upon the jurisdiction of the court in which it was administered. In her capacity as beneficiary under the will, appellant is satisfied with the manner in which the Bank has performed its duties both as executor and as trustee under the will. Her only reason for now questioning the probate proceedings is a desire to assure herself of a fee simple title to the property which she has contracted to purchase.

Section 210 of the 1942 Code provides that 'the probate of the will and the granting of administration of the estate of any person deceased shall belong to the judge of probate for the county in which such person was last an inhabitant.' Section 221 is as follows: 'The jurisdiction assumed by any probate court in any case, so far as it depends on the place of residence or the location of the estate, shall not be contested in any suit or proceeding what ever, except in an appeal from the probate court in the original case, or when the want of jurisdiction appears on the record.'

It has been held that the jurisdiction of the probate court cannot be collaterally attacked on the ground that the deceased was not a resident of the county in which the estate was administered unless the facts showing want of jurisdiction affirmatively appear upon the record, and that it will be presumed that such court made the necessary inquiry and that the facts before it were sufficient to warrant the court in determining that it had jurisdiction. Dunlap v. Savings Bank, 69 S.C. 270, 48 S.E. 49, 104 Am.St.Rep. 796. In Norwood v. Atlantic Coast Line Railway Co. et al., 203 S.C. 456, 27 S.E.2d 803, 809, the Court said: 'No collateral attack may be made upon the granting of administration in the Probate Court, unless a lack of jurisdiction affirmatively appears on the face of the record as distinguished from the record being merely silent.' It is generally held that every court where the...