Warren v.Yarborough

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

Susan Y. Warren and Donna Y. Siler, Respondents,

v.

Ronald Yarborough, Individually and as Personal
Representative, and as Trustee, In Re: Estates of
Kathleen M. Yarborough and Legrand I. Yarborough,
Appellant.

Appellate Case No. 2009-137486

Appeal From Charleston County
Thomas L. Hughston, Jr., Circuit Court Judge

Unpublished Opinion No. 2012-UP-401
Heard April 12, 2012 – Filed July 11, 2012

AFFIRMED IN PART, REVERSED IN PART

Robert B. Pearlman, of Pearlman & Pearlman, PC, of
Mount Pleasant; Benjamin Goldberg, of Charleston, for
Appellant.

Shirrese Brown Brockington and Joseph S. Brockington,
both of Joseph S. Brockington, PA, of Charleston, for
Respondents.
PER CURIAM: This case arises from a dispute between sisters Susan Warren
and Donna Siler (collectively Respondents) and their brother, Ronald Yarborough
(Appellant), over the estates of their parents, Legrand and Kathleen Yarborough
(Father and Mother, respectively). In this consolidated appeal, Appellant appeals
two circuit court orders, dated May 27, 2009 (2008-CP-10-2494) and September 1,
2009 (2008-CP-10-5398). We affirm in part and reverse in part.

1. As to whether the circuit court erred in reversing the probate court's finding
that Mother had the requisite capacity to make a will, we reverse the circuit court's
ruling that no evidence was produced to show Mother had the capacity to make a
will. See Hairston v. McMillan, 387 S.C. 439, 445, 692 S.E.2d 549, 552 (Ct. App.
2010) ("An action to contest a will is an action at law, and in such cases reviewing
courts will not disturb the probate court's findings of fact unless a review of the
record discloses no evidence to support them."). Initially, we note the contestant of
a will has the burden of establishing incapacity. See S.C. Code Ann. § 62-3-407
(2009); Hairston, 387 S.C. at 445, 692 S.E.2d at 552 (noting the party challenging
the capacity of a testator bears the burden of proving incapacity by a
preponderance of the evidence). Further, we find sufficient evidence in the record
supports the probate court's finding that Mother had the capacity to execute a will.
See Hairston, 387 S.C. at 445, 692 S.E.2d at 552 ("The test of whether a testator
had the capacity to make a will is whether he knew (1) his estate, (2) the objects of
his affections, and (3) to whom he wished to give his property."). Specifically, the
testimony indicated Mother was "no pushover," "very sharp," and "clearly in
control." Additionally, testimony indicated Mother did not want her sons-in-laws
to receive any inheritance. Finally, the attorney who prepared the will and was
present when Mother executed it testified there was "no question whatsoever" that
Mother had the capacity to execute her will. As such, the circuit court erred in
finding no evidence to supported the probate court's findings. See In re Estate of
Weeks, 329 S.C. 251, 264-65, 495 S.E.2d 454, 462 (Ct. App. 1997) (affirming the
circuit court's finding that evidence supported the probate court's determination
that testator had capacity to execute will when testator was confused as to the
extent of the estate and evidence showed testator specifically wished to disinherit
son); Hairston, 387 S.C. at 446, 692 S.E.2d at 552 ("A person may execute a valid
will, even if he or she is not competent to transact ordinary, everyday affairs."); cf
Hellams v. Ross, 268 S.C. 284, 288-90, 233 S.E.2d 98, 100-01 (1977) (reversing
trial court's refusal to grant directed verdict when testator was "habitual drunkard"
but no evidence suggested testator was intoxicated at the time the will was
executed).
2. As to whether the circuit court erred in invalidating the deeds, we affirm.
See Vereen v. Bell, 256 S.C. 249, 251-52, 182 S.E.2d 296, 297 (1971) (applying an
equitable standard of review on appeal for an action to rescind and cancel a deed
for lack of capacity); Moore v. Benson, 390 S.C. 153, 163, 700 S.E.2d 273, 278
(Ct. App. 2010) ("An action alleging a breach of fiduciary duty is an action at law
but 'may sound in equity if the relief sought is equitable.'" (quoting Verenes v.
Alvanos, 387 S.C. 11, 17, 690 S.E.2d 771, 773 (2010))). Initially, we note that the
November 20, 1996 probate court order declaring Mother unfit to "dispose of
property, real or personal; to execute legal instruments or documents, with the
exception of a will, to enter into contractual relationships in any amount in excess
of One Hundred Dollars" was not appealed and is therefore the law of the case.
See Georgetown Cnty. League of Women Voters v. Smith Land Co., 393 S.C. 350,
357, 713 S.E.2d 287, 291 (2011) (providing an unappealed ruling, right or wrong,
is the law of the case). Further, the probate court order dated November 20, 2007,
wherein the court found Appellant had "breached his duty as Trustee of [Mother's]
trust," was not appealed by Appellant. Thus, the findings of the probate court
pertaining to Appellant's breach of trust are the law of the case. See id. In any
event, we find the execution of the deeds by Mother dated July 14, 1998; August
24, 1998; December 22, 2000; and March 9, 2001, to Appellant as trustee and
individually violated the November 20, 1996 order. Therefore, the circuit court
correctly declared the deeds null and void.

3. As to whether the the probate court misapplied section 62-1-308(c) of the
South Carolina Code, we find the probate court correctly exercised jurisdiction
over the case. See S.C. Code Ann. § 62-1-308(c) (2009) ("When an appeal
according to law is taken from any sentence or decree of the probate court, all
proceedings in pursuance of the order, sentence, or decree appealed from shall
cease until the judgment of the circuit court, court of appeals, or Supreme Court is
had."); Ulmer v. Ulmer, 369 S.C. 486, 492, 632 S.E.2d 858, 861 (2006) ("Section
62-1-308(c) does not apply to all orders of the probate court concerning the parties.
The only proceedings required to cease are those proceedings addressed in the
orders from which an appeal was taken."). Specifically, we find the probate court
was not divested of jurisdiction because the July 29, 2008 hearings concerned the
Merrill Lynch and Jyske bank accounts, both of which were not subject to any
appeal from the November 20, 2007 order. Rather, the July 29, 2008 hearing was
triggered by Appellant's failure to comply with the probate court's orders dated
February 12, 2008, and April 1, 2008, wherein Appellant agreed he was in
possession of funds and agreed to distribute the funds owed to Respondents
immediately. Appellant never objected to the court's jurisdiction at the time of
these hearings. Thus, the probate court properly exercised jurisdiction over the July
29, 2008 hearing and subsequent order issued August 15, 2008.

4. As to whether the circuit court erred in affirming the probate court's finding
that Father's will created a trust, we affirm. See Epworth Children's Home v.
Beasley, 365 S.C. 157, 164, 616 S.E.2d 710, 714 (2005) ("When reviewing an
action at law, on appeal of a case tried without a jury, the appellate court's
jurisdiction is limited to correction of errors at law. The appellate court will not
disturb the judge's findings of fact as long as they are reasonably supported by the
evidence."). Specifically, we find Items III, IV, and VIII of Father's will
effectively created a trust for the benefit of Mother, naming Appellant as trustee.
See id. ("A testamentary trust arises when a testator, in his will, declares the
creation of a trust, identifies the property to which the trust pertains, and names a
trustee and a beneficiary." (citing Johnson v. Thornton, 264 S.C. 252, 257, 214
S.E.2d 124, 127 (1975))). Therefore, the circuit court did not err in affirming the
probate court's interpretation of Father's will.

5. As to whether the circuit court erred in affirming the probate court's award
of costs and fees, we affirm. Initially, we note the probate court's August 15, 2008
order specifically ordered Appellant to pay Respondents' "costs, expenses, and
attorney[']s fees" related to the "revealing and showing" of "the breaches of trust"
by Appellant. As such, the probate court was not without authority to award fees
and costs. See S.C. Code Ann. § 62-7-1004 (2009) ("In a judicial proceeding
involving the administration of a trust, the court, as justice and equity may require,
may award costs and expenses, including reasonable attorney's fees, to any party,
to be paid by another party or from the trust that is the subject of the
controversy."). Further, we find no abuse of discretion in awarding Respondents'
fees and costs due to Appellant's breaches of trust. See Taylor, Cotton & Ridley,
Inc. v. Okatie Hotel Grp., LLC, 372 S.C. 89, 100, 641 S.E.2d 459, 464 (Ct. App.
2007) ("The award of attorneys' fees is left undisturbed absent abuse of the trial
court's discretion.").

6. As to whether the probate court erred in imposing sanctions against
Appellant when he had been removed as personal representative, we find this issue
is unpreserved for review because Appellant raised the issue for the first time in a
motion to alter or amend. See Patterson v. Reid, 318 S.C. 183, 185, 456 S.E.2d
436, 437 (Ct. App. 1995) ("A party cannot for the first time raise an issue by way
of a Rule 59(e) [,SCRCP] motion which could have been raised at trial."). Even if
we were to reach the merits of the issue, we would affirm. The probate court's
order of August 15, 2008, does not sanction Appellant in his capacity as personal
representative, but rather in his capacity as trustee for the Merrill Lynch and Jyske
accounts. In any event, Appellant could have complied with the court's August 15,
2008 order regardless of being stripped as personal representative. This is evident
by the alleged June 19, 2008 letter received from the Jyske Bank in Switzerland,
wherein the bank informed Appellant that "if your sisters want the equities
transferred we need a safe custody account number instead of the regular account
number as well as a contact person in each of the banks." Further, Appellant did in
fact reimburse Respondents $43,280.00 shortly before the July 29, 2008 hearing.
As such, Appellant's argument that he no longer had control of the said accounts is
without merit.

7. As to whether the probate court failed to accurately determine the amount of
improper disbursements, we affirm. See Church v. McGee, 391 S.C. 334, 342, 705
S.E.2d 481, 485 (Ct. App. 2011) ("'In an equitable action tried without a jury, the
appellate court can correct errors of law and may find facts in accordance with its
own view of the preponderance of the evidence.'" (citations omitted)). In its order
dated August 15, 2008, the probate court listed exactly what the improper
distributions amounted to. The circuit court affirmed, stating the probate court had
an ample basis for its findings. We agree and affirm the probate court's findings as
to the improper distributions because a preponderance of evidence in the record
supports the probate court's findings.

AFFIRMED IN PART, REVERSED IN PART.

PIEPER, KONDUROS, and GEATHERS, JJ., concur.