Theisen v. Theisen

• Decision Date: 13 April 2009
• Docket Number: No. 26630.,26630.
• Citation: 676 S.E.2d 133
• Court: South Carolina Supreme Court
• Parties: In the Matter of George I. Theisen. Lisbeth THEISEN, Appellant, v. Joan THEISEN, Richard Doris, Claude Theisen, Clifford Theisen, Eva Marie Theisen Fox and Susan Theisen Washburn, Defendants, Of whom Joan Theisen, Richard Doris, Claude Theisen, Eva Marie Theisen Fox and Susan Theisen Washburn are Respondents, and Clifford Theisen is Appellant.

676 S.E.2d 133

In the Matter of George I. Theisen.

Lisbeth THEISEN, Appellant, v. Joan THEISEN, Richard Doris, Claude Theisen, Clifford Theisen, Eva Marie Theisen Fox and Susan Theisen Washburn, Defendants,

Of whom Joan Theisen, Richard Doris, Claude Theisen, Eva Marie Theisen Fox and Susan Theisen Washburn are Respondents, and

Clifford Theisen is Appellant.

No. 26630.

Supreme Court of South Carolina.

Heard March 3, 2009.

Decided April 13, 2009.

Rehearing Denied May 13, 2009.

Kymric Y. Mahnke and John D. Shipman, of Nelson, Mullins, Riley & Scarborough, and Robert C. Wilson, Jr., all of Greenville, for Appellants.

Frank S. Holleman, III and Lesley R. Moore, both of Wyche, Burgess, Freeman & Parham; John A. Hagins, Jr., and Stephen R.H. Lewis, both of Covington, Patrick, Hagins, Stern & Lewis, all of Greenville, for Respondents.

Justice WALLER:

This is a family dispute concerning the will of George Theisen, who died on November 16, 2004. Appellant, Lisbeth Theisen, filed an action in February 2006 challenging the validity of the will. The trial court granted summary judgment to Respondents, holding the action was barred by the eight month statute of limitations set forth in S.C.Code Ann. § 62-3-108(3). We affirm.

FACTS

Lisbeth Theisen and Clifford Theisen (Appellants) are children of the decedent, George Theisen. Theisen was also survived by 3 other children, Claude, Susan and Eva Marie, as well as his wife Joan, who are Respondents in this matter. Approximately two months after Theisen's death, on January 11, 2005, Joan Theisen filed a will dated June 7, 1993, and two codicils dated 1996 and 1998, requesting informal probate in Essex County, New Jersey.¹ Notice of admission of the will to probate in New Jersey was simultaneously sent to George's children. The Personal Representatives of the Estate (Joan Theisen and Richard Doris) filed certified copies of the Essex County Probate proceeding with the Greenville County Probate Court on January 27, 2005.

On March 3, 2005, Lisbeth Theisen, a New Jersey resident, filed a complaint in the Greenville County Probate Court requesting "Designation of Forum for Primary Probate of Estate." The Probate Court held that since no probate proceeding was pending in South Carolina, principles of comity required the New Jersey Court to determine any jurisdictional issues.

Approximately one year later, on February 3, 2006, Lisbeth filed a Petition for Formal Testacy in Greenville County Probate Court challenging the validity of her father's will and codicils, contending they were executed at a time when he lacked testamentary capacity and was subject to undue influence. The matter was removed to circuit court, and Respondents filed for summary judgment contending Lisbeth's petition was untimely and was barred by the statute of limitations. Lisbeth's brother, Clifford joined her opposition to the motion for summary judgment.² The trial court held two hearings in August 2006, after which an order was entered granting Respondents summary judgment. The trial court held the eight month statute of limitations of S.C.Code Ann. § 62-3-108(3) barred Lisbeth's action. Lisbeth and Clifford's Rule 59(e) SCRCP motions were thereafter denied. This appeal follows.

ISSUES

1. Did the circuit court err in holding the action barred by the eight month statute of limitation set forth in S.C.Code Ann. § 62-3-108?

2. Does the statute of limitation begin to run upon admission of a will to probate, or upon closing of the estate?

3. Does the application of S.C.Code Ann. § 62-3-108 violate due process and equal protection?

1. S.C.Code Ann. § 62-3-108

S.C.Code Ann. § 62-3-108 states, generally:

No informal probate or ... formal testacy or appointment proceeding, other than a proceeding to probate a will previously probated at the testator's domicile ... may be commenced more than ten years after the decedent's death. (emphasis supplied).

However, the statute sets forth certain exceptions, including:

(1) if a previous proceeding was dismissed because of doubt about the fact of the decedent's death, ... proceedings may be maintained at any time thereafter upon a finding that the decedent's death occurred prior to the initiation of the previous proceeding and the applicant or petitioner has not delayed unduly in initiating the subsequent proceeding and if that previous proceeding was commenced within the time limits of this section;

(2) appropriate probate, appointment, or testacy proceedings may be maintained in relation to the estate of an absent, disappeared, or missing person for whose estate a conservator has been appointed, at any time within three years after the conservator becomes able to establish the death of the protected person; and

(3) a proceeding to contest an informally probated will and to secure appointment of the person with legal priority for appointment in the event the contest is successful may be commenced within the later of eight months from the informal probate or one year from the decedent's death.

Emphasis supplied.³

The trial court ruled that since Theisen's will was admitted to informal probate in New Jersey on January 11, 2005, Lisbeth's action, commenced on February 3, 2006, was barred by the eight month statute of limitations in subsection (3) above. We agree.

Appellants contend the 8-month limitation is inapplicable here for two reasons: first, they contend the statute applies only to informal probates which occur in this state; second, they contend South Carolina law requires a decedent's will first be filed for informal probate in the county of the decedent's domicile. We disagree.

The plain and unambiguous language of § 62-3-108(3) plainly applies to any informal probate. Anderson v. State Farm Mut. Auto. Ins. Co., 314 S.C. 140, 442 S.E.2d 179 (1994) (words of a statute should be accorded their plain and ordinary meaning without resorting to subtle or forced construction to limit or expand statute's operation). There is simply no language in the statute which implies it excludes an informal probate conducted in another state. If the Legislature had intended the eight month limitation period to apply only to wills which were informally probated in this state, it could have included such language in the statute. Estate of Guide v. Spooner, 318 S.C. 335, 457 S.E.2d 623 (Ct.App.1995) (if Legislature intended statute to apply to certain proceedings, it could have done so by including such language). We find no persuasive arguments as to why § 62-1-308(3) should be construed to apply only to wills probated in South Carolina.⁴

Lisbeth and Clifford also contend that under S.C.Code Ann. § 62-3-201,⁵ the proper venue for the first informal or formal testacy proceeding was Greenville County, the county of Theisen's domicile. We disagree.

Appellants cannot escape the eight month statute of limitation of § 62-3-108(3) by raising a venue statute. The remedy to challenge venue was to raise the issue within the statutory period (which they did via the "Designation of Forum Petition");⁶ however, Appellants failed to perfect an appeal from that order and instead waited until after the expiration of the eight month limitations period to file a challenge to the validity of the informal probate. Appellants cannot now complain that venue was proper only in Greenville. Plum Creek Dev. Co. v. City of Conway, 334 S.C. 30, 34, 512 S.E.2d 106, 109 (1999). (res judicata bars subsequent actions by same parties when the claims arise out of the same transaction or occurrence that was the subject of a prior action between those parties).

Moreover, Theisen's will specifically directs that it be probated in New Jersey, and the Probate Court there found informal probate of the will was proper under New Jersey law, specifically N.J. St. Ann. § 3B:3-28, which provides:

Where the will of any individual not resident in this State at his death has not been admitted to probate in the state, jurisdiction or country in which he then resided and no proceeding is there pending for the probate of the will, and he died owning real estate situate in any county of this State or personal property, or evidence of the ownership thereof, situate therein at the time of probate, the Superior Court or the surrogate's court may admit the will to probate and grant letters thereon. (Emphasis added).⁷

The Probate Court found Theisen owned a bank account and stock certificates which were situate in New Jersey at the time of his death. Accordingly, venue was proper under New Jersey law.

Lastly, Appellants cite Albert Moses, The South Carolina Probate Practice Manual, § 3-5 (4th Ed.2001) for the proposition that the time limitations set forth in § 62-1-308(3) do not apply to a will probated elsewhere. The Probate and Practice Manual states:

Time limitations on formal proceedings. Formal proceedings to contest an informally probated will (and for appointment of a personal representative) must be commenced within the later of 8 months from the informal probate or 1 year of death. Otherwise, formal proceedings (and informal proceedings for probate and appointment must be commenced within 10 years of decedent's death). These time limitations neither apply to a will probated elsewhere nor to the estates of persons absent, disappeared, or missing.

(Emphasis supplied). The highlighted language appears to relate to subsections (1) and (2) of § 62-1-308. Those sections alter the normal statute of limitations for probate proceedings in cases in which the death of the decedent was in doubt, or when an individual was absent, disappeared, or missing, and their death has been recently discovered. The Probate Manual's statement that the time limitations are inapplicable to the estates of persons missing, absent, disappeared or whose death is in doubt are supported by the language of the statute itself. However, there is no language in the statute which would demonstrate that the limitations period therein was not...