In Re: Estate of Sylvia J. Reagan

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

In Re: Estate of Sylvia J. Reagan

Linda Reagan Shelley, Appellant,

v.

Ramona D. Becker, individually and as Personal
Representative of the Estate of Sylvia J. Reagan, Beryl
Routon, Kayla Dawn Dastrup, and Tom Coats,
Defendants,

Of whom Ramona D. Becker, individually and as
Personal Representative of the Estate of Sylvia J.
Reagan, is the Respondent.

Appellate Case No. 2013-001817

Appeal From Charleston County
Kristi Lea Harrington, Circuit Court Judge

Unpublished Opinion No. 2015-UP-354
Heard May 5, 2015 – Filed July 15, 2015

REVERSED

David K. Haller, of Haller Law Firm, of Charleston, for
Appellant.
Joseph S. Brockington, of Joseph S. Brockington, PA, of
Charleston, for Respondent.

PER CURIAM: Linda Reagan Shelley appeals the decision of the circuit court,
which affirmed the probate court's finding that the will Shelley sought to probate
lacked the statutory formalities set forth under section 62-2-502 of the South
Carolina Code (Supp. 2014). Shelley argues the signature of a notary public on the
testator's (Testatrix) will constitutes a second witness under section 62-2-502. We
agree and reverse.

"An action to contest a will is an action at law." In re Estate of Pallister, 363 S.C.
437, 447, 611 S.E.2d 250, 256 (2005). When our appellate courts review an appeal
from the probate court to the circuit court, we apply the same standard of review
that the circuit court applied on review of the probate court's order. In re Estate of
Weeks, 329 S.C. 251, 260, 495 S.E.2d 454, 459 (Ct. App. 1997). This court should
uphold the findings of the probate court in an action at law if there is any evidence
to support them. Id.

Section 62-2-502 provides every will must be:

(1) in writing;
(2) signed by the testator or signed in the testator's name
by some other individual in the testator's presence and by
the testator's direction; and
(3) signed by at least two individuals[,] each of whom
witnessed either the signing or the testator's
acknowledgment of the signature or of the will.

As an initial matter, we disagree with Respondent Ramona Becker's contention that
Shelley's appeal is barred by the two-issue rule. We find the probate court's
decision was essentially based on one ground alone: whether the signatures on the
will satisfied the statutory formalities. See Atl. Coast Builders & Contractors, LLC
v. Lewis, 398 S.C. 323, 328, 730 S.E.2d 282, 284 (2012) ("'Under the two issue
rule, where a decision is based on more than one ground, the appellate court will
affirm unless the appellant appeals all grounds because the unappealed ground will
become law of the case.'" (quoting Jones v. Lott, 387 S.C. 339, 346, 692 S.E.2d
900, 903 (2010))).
As to the merits, there is no dispute that the first two requirements under 62-2-502
are satisfied: the will is (1) in writing and (2) signed by Testatrix. The only issue is
whether the signatures of Sara Jones and Delores Belin-Burns satisfy the third
requirement, and we find they do.

Both Jones and Belin-Burns witnessed "either the signing or [Testatrix's]
acknowledgment of the signature or of the will." S.C. Code Ann. § 62-2-502(3).
We see no reason to exclude Belin-Burns as an attesting witness simply because
she signed in her official capacity as a notary public. Admittedly, Belin-Burns did
not testify that she was signing as a witness. Rather, she testified Testatrix asked
her to "notarize [Jones's] signature." Nevertheless, though Belin-Burns may not
have intended to act as an official witness, she still observed Testatrix's execution
of the will and then by signing, she accomplished the purpose and statutory
dictates of section 62-2-502 by attesting and subscribing to the will.1 See Land v.
Burkhalter, 656 S.E.2d 834, 835 (Ga. 2008) ("Thus, [the notary] may not have
intended to act as an official witness. However, by observing the Testatrix's
execution of the will and then by signing, in the presence of the Testatrix, in the
capacity of a witness, she accomplished the objective purpose of OCGA § 53-4-
20(b) by attesting and subscribing [to] the will."); In re Estate of Friedman, 6 P.3d
473, 476 (Nev. 2000) (finding the notary notarized the witness's signature, rather
than the testator's, and despite the fact that the notary intended to sign only as a
notary, "the unique facts and circumstances of this case" were such as to justify a
finding that the statute had been complied with as long as the notary signed in the

1
But cf. Leasing Enters., Inc. v. Livingston, 294 S.C. 204, 207, 209-10, 363 S.E.2d
410, 411, 413 (Ct. App. 1987) (rejecting the argument that a notary public could
serve as the second required witness under section 27-7-10 of the South Carolina
Code (2007) for purposes of recording a deed). However, compare S.C. Code
Ann. § 27-7-10 (providing the formalities for executing a deed, including a seal),
and S.C. Code Ann. § 30-5-30 (2007) (requiring that prior to recording a deed, "the
execution of the deed or other instrument must be first proved by the affidavit of a
subscribing witness to the instrument, taken before some officer within this State
competent to administer an oath" or "[a] deed or other instrument must be signed
by the grantor, mortgagor, vendor, or lessor and the signing must be acknowledged
by the grantor, mortgagor, vendor, or lessor in the presence of two witnesses, taken
before some officer within this State competent to administer an oath" (emphases
added)), with S.C. Code Ann. § 62-2-502 (providing the requirements for
executing a will, which do not require a seal or that acknowledgment of the will be
"taken before some officer . . . competent to administer an oath").
presence of the testator); Estate of Teal, 135 S.W.3d 87, 91 (Tex. App. 2002)
(finding a notary public was a subscribing witness despite the notary's testimony
that she signed the will "to witness to the signature on the will," and not as "a
subscribing witness"; "We now hold that, under the facts in this case, the notary,
although she did not intend to sign as a subscribing witness, did in fact serve as a
subscribing witness. . . . Because there is no requirement that a will be notarized,
[the notary's] signature served no purpose other than as a witness.").2

Accordingly, the circuit court's decision is

REVERSED.

2
See also Keely v. Moore, 196 U.S. 38, 42-43 (1904) (finding the individual who
signed the will in his official capacity as "Vice Consul" qualified as a witness and
stating, "No particular form of attestation was necessary . . . . [W]e do not think
that the fact that it may have been written and signed under a mistaken impression
as to its necessity and purpose vitiates it as an attestation." (emphasis added));
Adams v. Norris, 64 U.S. 353, 367 (1859) ("[W]e cannot perceive why the
description of himself [in his official capacity] which he affixes to his signature
should detract from the efficacy of that attestation."); Payne v. Payne, 16 S.W. 1, 1-
2 (Ark. 1891) ("The evidence shows . . . a literal compliance with the law in every
respect, except that the testator asked [the justice of the peace] to put his official
certificate to the will, instead of formally asking him to sign it as a
witness. . . . [W]e can see no reason, in law or justice, why the effect of an
ordinary attestation should be denied to it. Whether testifying through his
certificate, or as a witness in a probate proceeding, [the justice of the peace] was
asked to bear witness to the fact that the writing had been subscribed by and was
the will of the testator. That is the ordinary office of a witness, and as such [the
justice of the peace] signed the will." (emphasis added)); Tilton v. Daniels, 109 A.
145, 146 (N.H. 1920) (finding the fact that the justice of the peace thought he was
not signing as a witness and only signing the testator's will in his official capacity
was irrelevant; he nevertheless qualified as a witness under the law); Franks v.
Chapman, 64 Tex. 159, 160-61 (1885) (validating the will and noting the county
clerk qualified as a witness even though the testator only asked the clerk "to
authenticate [the will]"; "The fact that . . . the clerk of the county court, when
called upon by [the testator] to witness the will, attached thereto his official
certificate of the acknowledgment of the due execution of the will by the testator,
does not affect the validity of his signature to the will as a witness.").
THOMAS, KONDUROS, and GEATHERS, JJ., concur.