Waddell v. Kahdy

• Decision Date: 12 August 1992
• Docket Number: No. 23688,23688
• Citation: 419 S.E.2d 783,309 S.C. 1
• Court: South Carolina Supreme Court
• Parties: Tanya Saleeby WADDELL, Trena Saleeby Bess, Shebra Saleeby Patterson, and Valerie Saleeby Schulz, Respondent, v. George A. KAHDY and Nell M. Kahdy, Personal Representatives of the Estate of Mary G. Saleeby, a/k/a Mary A. Saleeby, deceased; and Helen Elaine Saleeby Conklin; and James Herbert Waddell, Jr., Joseph Saleeby, Evelyn Saleeby, Gerald Pregnall Saleeby, William Saleeby, Holly Anne Saleeby, Bryan Saleeby, Vera Saleeby Stanton, Violet Batter Zahka, Mary Alice Saleeby Najim, Charles G. Saleeby, Jr., and Assaf Khalil Saleeby, individually and for the benefit and on behalf of all other similarly situated (other than the individual Defendant Helen Elaine Saleeby Conklin) who are "members of the families of my mother, Emma Saleeby and my father, George Monsoor Saleeby," as those terms are used in Item VI of the Will of the decedent, and who are as such, persons potentially interested in the Trust attempted to be established under Item VI of the decedent's Will, including all of such persons, whether known or unknown, adult or minor, competent or incompetent, in or out of the military service of the United States, and otherwise laboring under some disability, Defendants, of whom James Herbert Waddell, Jr., is Respondent, Helen Elaine Saleeby Conklin is Respondent/Appellant, and Assaf Khalil Saleeby is Appellant/Respondent, and George A. Kahdy and Nell M. Kahdy, Personal Representatives of the Estate of Mary G. Saleeby, are Respondents.

Page 783

419 S.E.2d 783

309 S.C. 1

Tanya Saleeby WADDELL, Trena Saleeby Bess, Shebra Saleeby Patterson, and Valerie Saleeby Schulz, Respondent, v. George A. KAHDY and Nell M. Kahdy, Personal Representatives of the Estate of Mary G. Saleeby, a/k/a Mary A. Saleeby deceased; and Helen Elaine Saleeby Conklin; and James Herbert Waddell, Jr., Joseph Saleeby, Evelyn Saleeby, Gerald Pregnall Saleeby, William Saleeby, Holly Anne Saleeby, Bryan Saleeby, Vera Saleeby Stanton, Violet Batter Zahka, Mary Alice Saleeby Najim, Charles G. Saleeby, Jr., and Assaf Khalil Saleeby, individually and for the benefit and on behalf of all other similarly situated (other than the individual Defendant Helen Elaine Saleeby Conklin) who are "members of the families of my mother, Emma Saleeby and my father, George Monsoor Saleeby," as those terms are used in Item VI of the Will of the decedent, and who are as such persons potentially interested in the Trust attempted to be established under Item VI of the decedent's Will including all of such persons, whether known or unknown adult or minor, competent or incompetent, in or out of the military service of the United States, and otherwise laboring under some disability, Defendants, of whom James Herbert Waddell, Jr., is Respondent, Helen Elaine Saleeby Conklin is Respondent/Appellant, and Assaf Khalil Saleeby is Appellant/Respondent, and George A. Kahdy and Nell M. Kahdy, Personal Representatives of the Estate of Mary G. Saleeby, are Respondents.

No. 23688.

Supreme Court of South Carolina.

Submitted May 19, 1992.

Decided July 20, 1992.

Rehearing Denied Aug. 12, 1992.

James B. Van Osdell and Nadia Rasheed Black, both of Van Osdell, Lester, Howe & Ride, P.A., Myrtle Beach, for appellant/respondent Assaf Khalil Saleeby.

Earl B. Conklin, Jr., pro se, Florence, for respondent/appellant Helen E. Saleeby Conklin.

James L. LeBlanc, Overbrook, Pa., for respondents Tanya Saleeby Waddell, Trena Saleeby Bess, Shebra Saleeby Patterson and Valerie Saleeby Schulz.

Edward E. Saleeby, Sr. and F.W. Auman, III, both of Saleeby and Cox, Hartsville, for respondents Tanya Saleeby Waddell, Trena Saleeby Bess and Shebra Saleeby Patterson.

Gary W. Crawford, Florence, for respondent James Herbert Waddell, Jr.

Warren A. Kohn, Columbia, for respondent Valerie Saleeby Schulz.

John R. Clarke, North Myrtle Beach, for respondents George A. Kahdy and Nell M. Kahdy.

TOAL, Justice:

These cross appeals arise out of an action to construe a trust created in the will of Mary G. Saleeby, testator. One defendant claims the trial judge erred in denying her motion to change venue from Horry County to Florence County and in denying her motion for a protective order preventing the taking of her deposition. Several defendants claim that the trial judge erred in refusing to grant a jury trial to construe the trust created in the will. We affirm.

FACTS

Mary G. Saleeby ("Mary") died in Horry County on May 3, 1988. By Will dated January 29, 1976, she left nominal sums to her sister, Helen Elaine Saleeby Conklin ("Sister-Respondent/Appellant"), and her nieces, Tanya, Trena, Shebra and Valerie ("Nieces-Respondents"). Devises were also made to the Personal Representatives, the Kahdy's ("Respondents"), and a cousin; the rest and residue of Mary's estate was bequeathed as follows:

unto Archbishop Saleeby of Beirut, Lebanon, in TRUST, to use corpus and income therefrom as he sees fit and necessary, to help support and educate the needy members of the families of my mother, Emma Saleeby, and my father, George Monsoor Saleeby.

(Emphasis added). Archbishop Saleeby died on October 11, 1977.

After Mary's death, Nieces instituted this declaratory judgment class action in probate court ¹, seeking to have the trust declared invalid as violative of the Rule Against Perpetuities. ² The Nieces contend the residue of Mary's estate passes through intestacy and that they, along with Sister, are the sole surviving intestate beneficiaries.

Sister did not file an answer, but moved for a change of venue to Florence County and for a protective order to prohibit the taking of her deposition. These motions were denied and she appeals.

Mary's cousin, Assaf Khalil Saleeby ("Cousin-Appellant/Respondent"), answered, conceding a violation of the Rule Against Perpetuities, but contending the trust could be reformed to comply with the Rule. Cousin's demand for a jury trial was denied by the trial court, and he appeals. Sister and the Personal Representatives join his appeal in this issue.

LAW/ANALYSIS

The order requiring Sister to submit to deposition is not directly appealable. Patterson v. Specter Broadcasting Corp., 287 S.C. 249, 335 S.E.2d 803 (1985); Wallace v. Interamerican Trust Co., 246 S.C. 563, 144 S.E.2d 813 (1965). Therefore, this issue is not before us.

Sister's contention that the trial court erred in refusing to change venue from Horry County, the place of Mary's domicile, to Florence County, where Sister resides, is without merit. The trial judge held that venue was controlled by S.C.Code Ann. § 62-1-303 and § 62-3-201 of the probate code. Sister claims that S.C.Code Ann. § 15-7-30 (1976) controls. ³ We disagree. This action was originated in Probate Court. The record does not reveal how the action was transferred to the Circuit Court. We assume, for the purpose of this opinion, that the action was removed pursuant to S.C.Code Ann. § 62-1-302 (1991).

When the legislature provided a mechanism to remove certain cases from Probate Court to Circuit Court, they did not specify which venue statute would apply after removal. Because the action remains primarily an action governed by the Probate Code, we hold that the §§ 62-1-303 and 62-3-201 continue to govern in cases removed to the Circuit Court under § 62-1-302(c) (1991). Thus, we affirm the trial judge on this issue.

Finally, we address Cousin's claim that interpretation of the trust is an action at law thereby entitling him...