Smith v. Lawton

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Mary P. Smith, Maezell Mitchell Jefferson, Individually
and as personal representative of the Estate of Annabelle
Thornton, Shirrese B. Brockington, as special
administrator of the Estate of Janine Gourdine, Emma
Smalls, Viola Pringle, Cephus Thornton, Arthur
Graddick, III, an imprisoned person, Venetra Watson,
and any known or unknown persons or entities claiming
any interest in the Estates of Lucinda Pringle, Odessa
Graddick, Arthur Graddick, Jr., Annabelle Thornton, and
Janine Gourdine, Appellants,

v.

Angus M. Lawton, personal representative of the Estate
of Lucinda Pringle, Evelina Brown Moses, Thomas P.
Brown, Jr., and Unknown PR Rebecca Patricia Brown,
Respondents.

Appellate Case No. 2018-000562

Appeal From Charleston County
Kristi Lea Harrington, Circuit Court Judge

Opinion No. 5859
Heard January 12, 2021 – Filed September 1, 2021

AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED

Thomas Jefferson Goodwyn, Jr., of Goodwyn Law Firm,
LLC, of Columbia, for Appellants.
Jonathan Scott Altman, of Derfner & Altman, LLC, of
Charleston, and Stephen Michael Slotchiver, of
Slotchiver & Slotchiver, LLP, of Mount Pleasant, both
for Respondents.

LOCKEMY, C.J.: In this probate action, the estates of Mary Smith, Annabelle
Thornton, Emma Smalls, and Janine Gourdine (collectively, Children) appeal the
circuit court's order affirming the probate court's order probating the will of
Lucinda Pringle (Decedent), which devised property to Decedent's grandchildren:
Evelina Moses, Thomas Brown, and Rebecca Brown (collectively, Grandchildren).
On appeal, Children argue the probate court erred in probating the will because (1)
there was no evidence the will was properly executed, (2) the will was altered, and
(3) the reopening of Decedent's estate (the Estate) was not timely. We affirm in
part, reverse in part, and remand for an evidentiary hearing on whether there was
proper execution of the will.

FACTS/PROCEDURAL HISTORY

This case has a lengthy procedural history. Decedent died on October 11, 1989.
At her death, Decedent owned a fifty-percent interest in a 10.5-acre parcel of real
estate (the Property) located off Highway 17 in Mount Pleasant, South Carolina.
The Property was Decedent's sole asset and the focus of this litigation. Decedent
had five children: Annabelle Thorton, Mary Smith, Janine Gourdine, Emma
Smalls, and Evelina Brown. All of Decedent's children had passed by the time of
this appeal. Evelina Brown, who was Grandchildren's mother, predeceased
Decedent.

In the wake of Hurricane Hugo in late 1989, Smalls submitted an insurance claim
for damage to the house located on the Property. The insurance company issued a
check in January 1990, naming Smalls and Grandchildren as "executors of the
[E]state." Both Grandchildren and Children have asserted at different stages of this
litigation that Smalls altered the will and added herself so that she could receive
insurance proceeds to repair the home on the Property, where she lived.

In 1999, the probate court administered the Estate through intestacy, and on
August 16, 2000, the probate court closed the Estate. A deed of distribution
conveyed a one-fifth interest to Grandchildren who took instead of Brown, their
predeceased mother, and a one-fifth interest to each of Decedent's surviving
daughters. Administration of the Estate was completed on June 26, 2001.

On August 4, 2005, Evelina Moses filed the will with the probate court. On
October 20, 2005, Grandchildren filed a petition for subsequent administration and
for recovery of improper distribution, arguing Decedent died testate. They alleged
that at the time of Decedent's death, Children possessed the will but concealed it so
that the Estate would be distributed through intestacy and they could live out their
lives out on the Property.

In early 2006, Thomas Brown, Moses, and Smalls were deposed. In his
deposition, Thomas Brown stated he saw a document that purported to be
Decedent's will soon after her death, but Thornton and Smalls refused to provide
him with the will. He stated that in 2005, he received a copy of the will from
Thornton's daughter, Viola Pringle, but the probate court refused to accept a copy
of the will. In Smalls's deposition, she denied knowledge of a will and stated she
never discussed a will with Moses. In Moses's deposition, she stated she received
the original will from Smalls in June 2005.

On January 18, 2007, Grandchildren filed a motion to vacate the probate court's
2001 order closing the Estate. Children filed a motion to dismiss, arguing the
ten-year limitations period prevented the probate of any will. On April 8, 2008, the
probate court held a hearing on Grandchildren's motion to vacate the probate
court's previous order, the petition for improper distribution, and Children's motion
to dismiss. At the hearing, Children asserted they were not addressing the will's
validity because the will was not in evidence at that stage of the litigation.
However, they stated they were not waiving the right to challenge the validity of
the will. Grandchildren agreed that at some future date, Children would have the
opportunity to challenge the will.

The probate court dismissed Grandchildren's motion to vacate and petition to
reopen the Estate. The probate court ruled that there was good cause to reopen the
estate but because more than ten years had passed, section 62-3-108 of the South
Carolina Code (Supp. 2020)1 prevented the probate court from reopening the
Estate. The probate court found the copy of the will attached to the petition did not

1
§ 62-3-108(A)(1) ("No informal probate or appointment proceeding or formal
testacy or appointment proceeding, other than . . . appointment proceedings
relating to an estate in which there has been a prior appointment, may be
commenced more than ten years after the decedent's death.").
comply with the requirements of section 62-3-402 of the South Carolina Code
(Supp. 2020).2 Grandchildren appealed to the circuit court, which affirmed.
Grandchildren appealed to this court, and we reversed and remanded. Moses v.
Haile-Howard ex rel. Estate of Smith, Op. No. 2011-UP-386 (S.C. Ct. App. filed
Aug. 9, 2011). We held the probate court's finding that there was good cause to
reopen the Estate based on Smalls's concealment of the will was the law of the
case. Id. Thus, the concealment of the will meant section 62-3-108 did not
prohibit the probate court from admitting the will into probate. Id. This court
further stated, "Decedent intended [Grandchildren] to inherit from her last will and
testament," and ruled the probate court could reopen the Estate. Id. The parties
did not seek a writ of certiorari as to this opinion.

On March 13, 2012, Children again moved to dismiss, arguing the limitation
period found in section 62-3-108 prohibited the probate court from probating the
will. Thereafter, the probate court held a final hearing. On March 24, 2013, the
probate court ordered that the will could be probated and that Grandchildren "shall
submit a Form 300 Application[3] to open the Estate (either formally or informally)
with this Court."4

On February 20, 2015, Children moved to dismiss this probate of the will, arguing
the probate court lacked subject matter jurisdiction, Grandchildren's petition was
untimely, and Grandchildren never filed a petition for formal or informal testacy.
The probate court denied Children's motion to dismiss. On September 4, 2015,
Grandchildren filed a Form 300 Application for informal probate of the will. On
February 4, 2016, Children petitioned for formal testacy, asserting the will was
invalid and could not be probated and was barred by the ten-year limitations period
of section 62-3-108.

At the November 9, 2016 hearing, Children argued that because Grandchildren had
finally offered the will for probate, it was the proper time to challenge the validity
of the will. Children challenged the will on the grounds that (1) it was not
self-proving and Grandchildren had offered no testimony from witnesses to the

2
§ 62-3-402(a) ("If the original will is neither in the possession of the court nor
accompanies the petition[,] . . . the petition also must state the contents of the will,
and indicate that it is lost, destroyed, or otherwise unavailable.").
3
A Form 300ES is the standard form used for applying or petitioning the probate
court for formal or informal probate. Form 300ES, SCRPC.
4
Children appealed the probate court's March 24, 2013 order to this court;
however, on March 14, 2014, they withdrew that appeal.
will regarding its execution; (2) the beneficiary section of the will was whited out
and typed over; and (3) the witnesses had attested that Lucinda Springer, not
Lucinda Pringle, signed the will. Grandchildren argued this was the first time
Children tried to challenge the validity of the will even after the probate court
accepted the will to probate on March 24, 2013. Grandchildren therefore argued
the court's order accepting the will to probate was the law of the case.

On January 18, 2017, the probate court denied Children's petition for formal
testacy. The probate court held the alteration did not preclude the will from being
probated because Grandchildren "[did] not question[] Emma Smalls'[s] status as an
heir, any such alteration by Ms. Smalls d[id] not preclude Decedent's will from
being probated and that further inquiry [wa]s unwarranted." Next, the probate
court determined that because the witnesses to the will were dead, no further
inquiry into the attesting witnesses was required. Finally, the probate court
concluded the appearance of the name "Lucinda Springer" instead of "Lucinda
Pringle" was a scrivener's error.

Children appealed to the circuit court, arguing the probate court erred in failing to
make findings related to the will's validity and in finding the will was properly
proved and could be admitted to probate. Specifically, Children argued the probate
court erred in probating the will because the witnesses to attestation did not testify
and the probate court received no evidence of proper execution. Children averred
Grandchildren should have acquired an affidavit from one of the attesting
witnesses during the pendency of this litigation. Children also argued the attesting
witnesses saw Lucinda Springer and not Lucinda Pringle sign the will.

The circuit court affirmed the probate court's order. Specifically, the circuit court
ruled the attestation clause was sufficient because section 62-3-406 of the South
Carolina Code (Supp. 2020) required witnesses to testify only "if" they were able
and, here, the witnesses' deaths rendered them unavailable. The circuit court held
"Springer" was a scrivener's error. Further, the circuit court ruled the probate court
did not err in accepting the will to probate. This appeal followed.

ISSUES ON APPEAL

1. Did the circuit court err by affirming the probate court's ruling that Decedent's
will was valid when no evidence was offered to show due execution of the will?
2. Did the circuit court err by affirming the probate court's order finding
Decedent's will could be probated when it was altered and the petition did not
contain how the original will disposed of the Decedent's property?

3. Did the circuit court err by affirming the probate court's finding the ten-year
limitations period from section 62-3-108 did not apply and that Grandchildren
were not prejudiced by Smalls's concealment of the will?

STANDARD OF REVIEW

"The standard of review applicable to cases originating in the probate court
depends upon whether the underlying cause of action is at law or in equity." Univ.
of S. Cal. v. Moran, 365 S.C. 270, 274, 617 S.E.2d 135, 137 (Ct. App. 2005). "An
action to contest a will is an action at law." In re Estate of Cumbee, 333 S.C. 664,
670, 511 S.E.2d 390, 393 (Ct. App. 1999). "If a proceeding in the probate court is
in the nature of an action at law, review by this court extends merely to the
correction of legal errors." In re Estate of Paradeses, 426 S.C. 388, 391, 826
S.E.2d 871, 873 (Ct. App. 2019). In such cases, "this [c]ourt may not disturb the
probate [court's] findings of fact unless a review of the record discloses there is no
evidence to support them." Cumbee, 333 S.C. at 670, 511 S.E.2d at 393.

LAW/ANALYSIS

I. DUE EXECUTION OF THE WILL

Children argue the probate court erred by failing to conduct an inquiry into the
validity of the will. They assert they could not have raised this issue until
September 2015 when Grandchildren offered the will for probate. Children
therefore contend the issue was timely raised and had never been litigated.
Children argue the record contains no evidence to support a finding of due
execution of Decedent's will.

Children also contend the probate court erred by finding the will was valid because
Grandchildren produced no evidence as to the validity of the attestation clause
because both witnesses were deceased and sections 62-3-406 to -407 of the South
Carolina Code (Supp. 2020) required Grandchildren to present some evidence to
prove due execution. Children argue the probate court's finding that the name
Lucinda Springer was a scrivener's error was based on speculation because
Grandchildren presented no extrinsic evidence that it was scrivener's error. We
agree as to the witnesses' attestation but disagree as to the scrivener's error.
In contested cases, "Proponents of a will have the burden of establishing prima
facie proof of due execution in all cases . . . ." § 62-3-407. Due execution requires
that a will 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.

S.C. Code Ann. § 62-2-502 (Supp. 2020). When the proper execution of a will is
at issue in a contested case,

[I]f the will is witnessed . . . but not notarized or
self-proved, the testimony of at least one of the attesting
witnesses is required to establish proper execution if the
witness is within this State, competent, and able to
testify. Proper execution may be established by other
evidence, including an affidavit of an attesting witness.
An attestation clause that is signed by the attesting
witnesses raises a rebuttable presumption that the events
recited in the clause occurred.

§ 62-3-406(3). A self-proved will incorporates an affidavit signed by the testator,
the witnesses, and a notary into the will, declaring due execution of the will,
testator's testamentary capacity, and that there was no undue influence upon the
testator. See S.C. Code Ann. § 62-2-503 (Supp. 2020). A self-proved will does
not require the production of evidence as to the due execution of the will. See S.C.
Code Ann. §§ 62-3-405 to -406 (Supp. 2020).

A formal testacy proceeding is litigation to determine
whether a decedent left a valid will. A formal testacy
proceeding must be commenced by an interested person
filing and serving a . . . petition . . . to prevent [the]
informal probate of a will which is the subject of a
pending application . . . ."

S.C. Code Ann. § 62-3-401 (Supp. 2020). "[I]f a will is opposed by a petition for a
declaration of intestacy, it must be determined first whether the will is entitled to
probate." § 62-3-407. "[A] proceeding to contest an informally probated
will . . . may be commenced within eight months from informal probate or one
year from the decedent's death, whichever is later." § 62-3-108(A)(2)(c).

Grandchildren argue Children's petition for formal testacy was untimely because
they failed to petition the court within eight months of the admission of the will to
probate, as required by section 62-3-108. We find Children's petition for formal
testacy proceedings was timely. A petition for formal testacy can be filed
following an application to informally probate a will. See § 62-3-401. Here,
Grandchildren filed an application for informal probate on September 4, 2015.
Based on that application, Children were permitted to file a petition for formal
probate no later than May 4, 2016. See § 62-3-108. Children filed their petition
for formal probate on February 4, 2016; thus, Children's petition for formal testacy
was timely.

As to Children's argument regarding the scrivener's error, we find the probate court
did not err in finding the name Springer was a scrivener's error. "Our courts have
corrected scriveners' errors when warranted." Holroyd v. Requa, 361 S.C. 43, 60,
603 S.E.2d 417, 426 (Ct. App. 2004); see also Fenzel v. Floyd, 289 S.C. 495,
498-99, 347 S.E.2d 105, 107-08 (Ct. App. 1986) (noting a scrivener's error in a
will could be corrected). Children assert Grandchildren were required to put forth
extrinsic evidence to support a finding of a scrivener's error. However, extrinsic
evidence is not required to prove there was a scrivener's error. See Fenzel, 289
S.C. at 498, 347 S.E.2d at 107 ("Extrinsic evidence is also admissible to prove and
correct a scrivener's error." (emphasis added)). Although extrinsic evidence is
admissible to help determine such errors, extrinsic evidence is not required for
such an apparent scrivener's error in a will. We find the contents of the will
support the probate court's finding. The will was only three pages long; Decedent's
correct name, "Lucinda Pringle," was on two of the three pages; and a third page
contained the error, "Lucinda Springer." The date of the will—July 30, 1988—and
the names of beneficiaries and executors were the same across the will's pages, and
all the will's pages were similar in style and form. Based on the foregoing, we find
the circuit court did not err in affirming the probate court's finding "Lucinda
Springer" was a scrivener's error.
As to the due execution of the will, we find the circuit court erred in affirming the
probate court's finding there was due execution without requiring an evidentiary
showing to prove the witnesses signed the will. Section 62-3-406 states at least
one of these attesting witnesses is required to testify if they are able. The death of
both witnesses rendered them unable to testify. Nevertheless, the witnesses' death
did not relieve Grandchildren, as the proponents of the will, from establishing a
prima facie case of due execution. See § 62-3-407 ("Proponents of a will have the
burden of establishing prima facie proof of due execution in all cases." (emphasis
added)). As a result of the probate court's conclusion, Grandchildren were not
required to present any evidence to support the prima facie case.

South Carolina has adopted the Uniform Probate Code (UPC), which includes
section 3-406 of the UPC. See § 62-3-406. Massachusetts has partially adopted
section 3-406 of the UPC. See Mass. Gen. Laws Ann. ch. 190B, § 3-406 (West,
Westlaw through chapter 19 of 2021 1st Ann. Sess.) ("If evidence concerning
execution of an attested will which is not self-proved is necessary in contested
cases, the testimony of at least [one] of the attesting witnesses, if within the
commonwealth, competent and able to testify, is required. Due execution of a will
may be proved by other evidence."). Interpreting this statute, the Massachusetts
Court of Appeals has come to the same conclusion: it requires the proponent to
provide some evidence to show the deceased witnesses signed a will when the will
was not self-proved. See In re Estate of King, 156 N.E.3d 220, 224 (Mass. App.
Ct. 2020) ("[T]he death of an attesting witness, or of all the attesting witnesses, is
not to defeat the validity of the will, if, in fact, duly executed. It changes the form
of the proof, and allows the introduction of secondary evidence of the due
attestation and execution of the will. Such attestation is then to be shown . . . by
proof of the handwriting of the witness. That being shown, prima facie, it is to be
taken to be true, and to have been put there for the purpose stated in connection
with the signature." (quoting Leatherbee v. Leatherbee, 141 N.E. 669, 670 (Mass.
1923)).

The death of the witnesses to the will does not prohibit the court from probating a
will because the proponent of the will may present "other evidence" of due
execution, whether it be an affidavit from a witness or evidence establishing the
witnesses' handwriting. See § 62-3-406 ("Proper execution may be established by
other evidence, including an affidavit of an attesting witness." (emphasis added));
Hopkins v. De Graffenreid, 2 S.C.L. (2 Bay) 187, 192 (1798) (stating proof of
handwriting of the deceased witnesses was sufficient to prove due execution of a
will); Harleston v. Corbett, 46 S.C.L. (12 Rich.) 604, 608 (1860) (stating proof of a
deceased witness's handwriting can be used to prove due execution of a will).
Grandchildren were required to present some evidence to support due execution,
and the death of the attesting witnesses did not eliminate the requirement of
proving the prima facie case. See § 62-3-407. Thus, the circuit court erred by
affirming the probate court's order denying formal probate because Grandchildren
were required to provide "other evidence" of witness attestation to prove due
execution of the will in a contested case. Based on the foregoing, we reverse as to
this issue and remand this matter for the probate court to conduct a hearing to
consider evidence of due execution of the will.

II. ALTERATION

Children argue that because Smalls altered the will, section 62-3-402 required
Grandchildren to state the contents of the will and indicate that the will was lost,
destroyed, or unavailable. Children assert the probate court erred by finding the
will was the original will because Smalls had altered it. Children contend that
because Smalls altered the will and no evidence was presented as to the "original"
contents of the will, the probate court had no basis to determine the intent of the
Decedent. We disagree.

"If the original will is neither in the possession of the court nor accompanies the
petition and no authenticated copy of a will probated in another jurisdiction
accompanies the petition, the petition also must state the contents of the will, and
indicate that it is lost, destroyed, or otherwise unavailable." § 62-3-402(a).

As to Children's argument section 62-3-402(a) required Grandchildren to state the
contents of the will, we find the circuit court did not err in affirming the probate
court because Grandchildren presented the will they assert was entitled to informal
probate, and the contents can be determined from this document.

As to Children's intent and alterations arguments, Children never sought a petition
for writ of certiorari as to our 2011 opinion, which stated Decedent intended
Evelina Brown Moses, Thomas Brown, and Rebecca Patricia Brown to inherit
from her will. Moses, Op. No. 2011-UP-386. Thus, this finding became law of the
case. See Transp. Ins. Co. v. S.C. Second Injury Fund, 389 S.C. 422, 431, 699
S.E.2d 687, 691 (2010) ("An unappealed ruling is the law of the case and requires
affirmance."). Based on the foregoing, we find the circuit court did not err in
affirming the probate court's finding Decedent intended Grandchildren to inherit
from her will.5

III. TIMELINESS

Children argue this court's 2011 opinion did not prohibit the probate court from
making additional findings as to whether Smalls's concealment prejudiced
Grandchildren because Grandchildren had a copy of the will before the running of
the ten-year statute of limitation from section 62-3-108. We disagree.

We find Children's prejudice argument was an attempt to relitigate the issue of
whether section 63-3-108 barred Grandchildren from probating the will. In our
2011 opinion, this court decided section 63-3-108 did not bar Grandchildren from
reopening the Estate under the will. Because Children did not seek review of that
decision, it is the law of the case. Moses, Op. No. 2011-UP-386; see also Robert
E. Lee & Co. v. Comm'n of Pub. Works, 250 S.C. 394, 158 S.E.2d 185 (1967)
(providing when a party raises the same argument it made in a former appeal, the
decision from the former appeal is binding as precedent and as the law of the case);
Ackerman v. McMillan, 324 S.C. 440, 443, 477 S.E.2d 267, 268 (Ct. App. 1996)
("Matters decided by the appellate court cannot be reheard, reconsidered, or
relitigated in the trial court, even under the guise of a different form.").

CONCLUSION

For the foregoing reasons, we affirm the circuit court's order affirming the probate
court's order as to the scrivener's error, alteration of the will, Decedent's intent, and
timeliness issues. We reverse and remand for the probate court to conduct a
hearing to determine whether there was due execution of Decedent's will.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

KONDUROS and MCDONALD, JJ., concur.

5
Grandchildren, as the sole heirs according to this holding, appear to have made a
strategic decision to file an application for informal probate and to choose not to
contest Smalls's inclusion in the will.