Tyler v. Salley

THIS OPINION HAS NO PRECEDENTIAL
VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT
AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Laura T. Tyler,       
Appellant,

v.

Mary Gail T. Salley, Personal Representative of the Estate of Hal Barr
Tyler,        Respondent.

Appeal From Richland County

G. Thomas Cooper, Jr., Circuit Court
Judge

Unpublished Opinion No. 2004-UP-189

Submitted March 9, 2004 – Filed March
22, 2004

 

AFFIRMED

Jan L. Warner, of Columbia; for Appellant

Elizabeth Van Doren Gray and Laura W. Robinson, both of Columbia; for Respondent.

PER CURIAM:  Appellant Laura T. Tyler commenced
this action by filing a Summons and Petition seeking, among other things, to
have Respondent Mary Gail T. Salley removed as the personal representative for
the estate of Hal Barr Tyler and to have a substitute personal representative
appointed.  The trial court denied all requested relief. [1]

FACTS

On December 10, 1997, Hal Barr Tyler died
of cancer.  Unable to locate her husband’s will, Laura Tyler hired an attorney
and filed an intestate estate with the Probate Court for Richland County.  Hal’s
will was eventually recovered, and in accordance with its terms, Hal’s sister
Mary Gail T. Salley was appointed personal representative of the estate on January
26, 1998.

When Salley learned that she was the named
personal representative, she hired Elaine H. Fowler, an attorney who practices
in the area of probate administration, to represent and advise her in connection
with the performance of her duties and responsibilities as personal representative. 
According to the testimony offered at trial, Salley did not take any action
as personal representative without express guidance and direction from Fowler.

Under the will, Salley was to receive
a one-half interest in farmland located in Orangeburg, South Carolina; Hal’s
inherited interest in certain personal property; the proceeds from a $51,000
life insurance policy; and a $50,000 specific bequest.  The residuary was left
to Tyler and included SCANA stock, a duplex on Brennen Road, and other personal
property. 

During his lifetime, Hal took out a loan
against the proceeds of a $10,000.00 life insurance policy of which Salley was
the beneficiary.  After receiving the remaining proceeds of the policy after
Hal’s death, upon the advice of Fowler, Salley took out $4,214 from the estate. 
This represented the difference between the initial policy amount and the reduced
value of the policy.  When Fowler realized her advice was mistaken, she instructed
Salley to reimburse the estate.  Salley then repaid the estate with interest.

On July 1, 1999, Tyler filed a Summons
and Petition in the Probate Court, seeking to have Salley removed as personal
representative and to have a substitute personal representative appointed. 
She sought to disgorge all attorney’s fees paid to Fowler and all commissions
paid to Salley.  The trial court denied Tyler’s requested relief.  This appeal
follows.

STANDARD OF REVIEW

A request to remove a personal representative seeks
affirmative relief that lies in equity.  Dean v. Kilgore, 313 S.C. 257,
437 S.E.2d 154 (Ct. App. 1993).  As such, we may make findings according to
our own view of the preponderance of the evidence, though we need not disregard
the findings of the trial judge who saw and heard the witnesses and was in a
better position to judge their credibility.  In re Thames, 344 S.C. 564,
571, 544 S.E.2d 856, 857 (Ct. App. 2001).

LAW/ANALYSIS

Removal

Tyler contends that the trial court erred
in not removing Salley as personal representative.  We disagree.

Although the appointment of a personal representative
“is not lightly to be set aside,” the Probate Code provides that anyone “interested
in the estate may petition for removal of a personal representative for cause
at any time.”  See Witherspoon v. Watts, 18 S.C. 396, 422 (1883);
S.C. Code Ann. § 62-3-611(a) (Supp. 2003). 

Cause for removal exists when removal would be in the best
interests of the estate, or if it is shown that a personal representative or
the person seeking his appointment intentionally misrepresented material facts
in the proceedings leading to his appointment, or that the personal representative
has disregarded an order of the court, has become incapable of discharging the
duties of his office, or has mismanaged the estate or failed to perform any
duty pertaining to the office.

S.C. Code Ann. § 62-3-611(b) (Supp. 2003). 

Tyler’s numerous complaints can be summarized into
two general categorical allegations:  (1) Salley was late in performing her
obligations; and (2) she engaged in self-dealing. 

In support of her contention that Salley
was excessively dilatory in administering the estate, Tyler notes that Salley
did not file the estate’s inventory until more than a year after it was initially
due and did not file the Form 706 estate tax return until almost a year after
the initial due date.  In both cases, however, Salley received deadline extensions
from the relevant authority.  Moreover, evidence presented at trial indicates
that Tyler at least shared the blame with Salley for any unnecessary delays. 
Tyler and her counsel engaged Salley and Fowler in lengthy discussions concerning
what property was to be included in the estate and how much it was worth, and
Tyler’s indecisiveness on the elective share issue only acted to forestall finality. 
In any event, the rather modest delays in this case have not so jeopardized
the best interest of the estate as to warrant removing the personal representative.

We find Tyler’s allegations of self-dealing to
be unfounded.  Although Salley did improperly remove $4,214 from the estate
to repay a loan Hal had taken against a life insurance policy, she did so at
the advice of the estate’s attorney.  When Salley realized there had been a
mistake about the propriety of the transaction, she reimbursed the estate with
interest.  Nonetheless, Tyler asserts that the absence of the funds from the
estate caused a cash shortfall, precluding Salley from making necessary repairs
to the duplex on Brennen Road and forcing her to sell the SCANA stocks for too
low of a price. 

Contrary to Tyler’s contention, Salley did not
fail to make necessary repairs to the Brennen Road duplex for want of estate
funds.  Quite the opposite, at a cost of $3,500, [2] Salley arranged to have the roof of the duplex
repaired to prevent damage from leakage.  The only repairs she forwent were
those she deemed to be cosmetic in nature.  Indeed, even without the cosmetic
repairs, tenants regularly occupied the duplex during the estate’s administration,
thereby generating rental income for the estate.

We find most remarkable Tyler’s contention that
Salley wasted estate assets by selling the SCANA stocks too early: 

Mrs. Salley also admitted that, because the estate needed
money to pay its lawyers, she sold SCANA stock at $27.00 per share when, if
she had made one phone call or kept up with this investment in the newspaper,
she would have learned that had she waited six weeks, the stock could have been
sold for $30.00 per share.

Though the role of personal representative comes
with many responsibilities, stock market clairvoyance is certainly not one of
them.  A personal representative does not waste estate assets when she fails
to anticipate fluctuation in the value of securities.

We see no error committed by the trial
judge, who after considering the testimony of Salley, Tyler, and the estate
attorney, determined that Salley had not failed to perform any duty as personal
representative, engaged in willful misconduct, or improperly disposed of estate
assets.  Accordingly, we conclude the trial court did not err in refusing to
remove Salley as personal representative.

Disgorgement

Tyler contends that the trial court erred
in refusing to disgorge attorney’s fees paid to the attorney hired by Salley
to assist her in her role as personal representative.  We disagree.

South Carolina law specifically authorizes and
empowers personal representatives to hire attorneys, accountants, and advisors
to perform or assist in the performance of the personal representative’s duties. 
S.C. Code Ann. § 62-3-715(19) (1987).  The personal representative is likewise
authorized to hire counsel when an estate brings or defends a lawsuit.  S.C.
Code Ann. § 62-3-715(20) (1987).  Section 62-3-720 specifically makes the estate
responsible for the resulting attorney’s fees:

If any personal representative or person nominated as personal
representative defends or prosecutes any proceeding in good faith, whether successful
or not, he is entitled to receive from the estate his necessary expenses and
disbursements including reasonable attorneys’ fees incurred.

The attorney hired by Salley charged $150.00
per hour, and prior to the litigation commenced by Tyler, Salley had spent only
$8,342.05 in attorney’s fees on a $200,000.00 estate.  We agree with the trial
court’s determination that the fees paid by Salley were not excessive and find
ample evidence in the record to support that finding.
[3]

AFFIRMED.

HEARN, C.J., ANDERSON and BEATTY, JJ., concur.

[1] We decide this case without oral argument pursuant
to Rule 215, SCACR.

[2] The Record on Appeal erroneously refers to $35,000.

[3]   We likewise dismiss Tyler’s claim that the trial court should have
allowed her to recover fees paid to Salley as personal representative or against
Salley’s beneficial interest.