Julie Irving v. Jeanne Poafpybitty

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

Julie Irving, Respondent,

v.

Jeanne Poafpybitty, Donald Matthew Rothgeb, and
Steven Taylor Rothgeb, Defendants,

Of whom Jeanne Poafpybitty, Personal Representative of
the Estate of Donald M. Rothgeb, is the Appellant.

Appellate Case No. 2020-001291

Appeal From Horry County
Benjamin H. Culbertson, Circuit Court Judge

Unpublished Opinion No. 2025-UP-057
Heard February 13, 2024 – Filed February 19, 2025

REVERSED AND REMANDED

Bret Harlan Davis and Reese R. Boyd, III, both of Davis
& Boyd, LLC, of Myrtle Beach; and Thomas J. Rode, of
Charleston, all for Appellant.

Clifford Heywood Tall, of Clifford H. Tall, PA, of
Myrtle Beach, for Respondent.
PER CURIAM: Jeanne Poafpybitty (Poafpybitty), as personal representative of
the Estate of Donald M. Rothgeb (the Estate), appeals the circuit court's order
affirming the probate court's order ruling in favor of Julie Irving. Poafpybitty
argues the circuit court erred in affirming the probate court's (1) finding she
breached her duties to the Estate without first finding her conduct was inconsistent
with the testator's intent that she have "sole discretion" to distribute the property,
thus failing to follow the testator's intent as stated in the will; (2) failure to apply In
re Estate of Kay, 423 S.C. 476, 816 S.E.2d 542 (2018); (3) application of the South
Carolina Trust Code to the actions of a personal representative in administering an
estate; (4) award of attorney's fees to Irving to be paid from the Estate's funds
under the "common fund" doctrine; (5) decision to remove Poafpybitty as personal
representative and appointing a special administrator when no interested person
petitioned for her removal, no evidence supported her removal, and no request for
appointment of a special administrator was made during trial; and (6)
determination that Poafpybitty was responsible for the attorney's fees incurred in
defending this action without a finding of bad faith as required by section 62-3-720
of the South Carolina Code (2022). We reverse and remand.

FACTS

Donald M. Rothgeb (Testator) died testate on January 26, 2014. His will
appointed Poafpybitty, his wife of twenty-five years, as personal representative of
the Estate. The will devised the residue of the Estate to Poafpybitty and Testator's
three adult children from a prior marriage: Irving, Donald Matthew Rothgeb
(Matthew), and Steven Taylor Rothgeb (Steven) (collectively, the co-beneficiaries)
"in approximately equal shares."1 The will gave Poafpybitty "sole discretion to
designate the real or personal property comprising the respective shares so
established, so long as the value thereof is approximately equal." It also stated,

I direct that all my legally enforceable debts, secured and
unsecured, be paid as soon as practicable after my
death. . . . If at the time of my death any of the real
property herein devised is subject to a mortgage, I direct
that the devisee taking such mortgaged property shall
take it subject to such mortgage and that he shall not be
entitled to have the obligation secured thereby paid out of
my general estate.

1
Poafpybitty did not pursue her entitlement to an elective share of the Estate.
At the time of Testator's death, the Estate was comprised of twelve parcels of real
property, most of which were rental properties. Two of these properties were
encumbered by mortgage debt. The Estate did not include liquid cash assets.

About one year after Testator's death, Steven sent a letter to Poafpybitty inquiring
about the Estate's financial records and activities. Frustrated with Poafpybitty's
incomplete response, the co-beneficiaries hired counsel, Jack Scoville.

In October 2015, Scoville sent a letter indicating which properties the
co-beneficiaries wished to receive. He acknowledged Poafpybitty wished to keep
Testator's residence (the Residence)—where she had resided with Testator during
their marriage and continued to reside—as part of her distribution. Scoville also
suggested the properties be appraised for distribution purposes. After the
appraisals were completed, the Estate prepared an agreement, which indicated the
parties agreed to the distribution of the properties to the co-beneficiaries, as set
forth in Scoville's letter, and of the Residence and two other Estate properties to
Poafpybitty. However, the parties did not sign this agreement. The
co-beneficiaries then relieved Scoville.

On December 9, 2015, counsel for the Estate sent a proposed distribution to Irving.
This distribution to Poafpybitty included the Residence, which was appraised at
$95,000 and carried a balance of $129,000 on the mortgage loan, and two other
properties, which were appraised at $65,000, and $45,000, respectively. In January
2016, Poafpybitty revised the distribution proposal to reflect a distribution credit of
$118,000 for the Residence, which included a credit for the costs to repair the
Residence. Irving objected to the proposed distribution and asked that all
remaining assets of the Estate be distributed promptly in four equal shares, with the
beneficiaries to settle full ownership of the properties among themselves after
closure of the Estate.

On April 25, 2016, Irving filed a summons and "complaint to secure fair and
prompt closure of estate administration" against Poafpybitty, individually and as
personal representative of the Estate, and the remaining co-beneficiaries. Irving
sought closure of administration with an accounting and final asset distributions.

Irving alleged Poafpybitty initially listed the value of the Residence as $191,200 on
an inventory but later proposed a distribution of the Residence to herself at a value
of $95,000. Irving further alleged Poafpybitty used Estate funds to install a new
roof on the Residence without first informing the co-beneficiaries; sold real
property of the Estate without informing the co-beneficiaries and denied the sales
when they inquired; and failed to adequately respond to Irving's request for
information about the Estate's activities until Irving hired an attorney.

In the prayer for relief, Irving requested (1) that Poafpybitty file an accurate and
up-to-date estate accounting; (2) that the Estate's remaining assets be equally
distributed unto the four beneficiaries; (3) that the probate court disallow
Poafpybitty from using Estate resources to "negotiate . . . for [her] own private
interests"; (4) that the beneficiaries be ordered to mediate their continuing
differences; (5) that Poafpybitty make interim financial distributions to all
beneficiaries to assist them with costs of this mediation; (6) attorney's fees and
costs for Irving; and (7) additional relief as the court deemed just and proper.

Poafpybitty filed an answer and counterclaim. She admitted she filed an initial
inventory and appraisement valuing the Residence at $191,200, but stated that after
consultation with the co-beneficiaries, an appraisal of the Residence was
undertaken, and the property appraised for $95,000 due to its poor condition.
Poafpybitty also alleged the complaint was a frivolous proceeding and brought
counterclaims against Irving for abuse of process and attorney's fees and costs.

The probate court held a two-day trial on the matter in February 2017. Three days
before trial, Poafpybitty filed an amended proposal for distribution along with the
Estate closing documents in which she relinquished her position regarding the
value of the Residence and her intention to retain it as part of her distribution.

The probate court issued an order finding in favor of Irving. It found Poafpybitty
intentionally inhibited and delayed the closing of the Estate and unreasonably
prolonged the division of the assets. The probate court further found she
unreasonably withheld information pertinent to the beneficiaries and requested by
them. The probate court found she used her position to manipulate at least one
substantial asset to unjustly enrich herself. The probate court additionally found
her testimony describing what she believed to be faithful performance was neither
sincere nor credible. The probate court found Poafpybitty had not defended or
prosecuted the action in the Estate's best interests, that her goal was to use her
status to improve her lot in the Estate, and that her decision to bring counterclaims
against Irving "was a wasteful exercise of fiduciary power." The probate court
denied Poafpybitty's counterclaims.

The probate court additionally ordered Poafpybitty's fees and costs be paid by the
Estate through the billing date of May 25, 2016; that Irving's fees and costs be paid
by the Estate; and that the residuary assets, including real properties, be distributed
in equal one-quarter shares among the Estate's four devises as tenants in common.
The probate court provided "[r]easonable compensation shall be paid by the Estate
for legal services in this regard."

Finally, the probate court appointed a special administrator "to perform the
remaining duties as [p]ersonal [r]epresentative, to the extent that any such duties
remain to be performed sixty (60) days from the issuance of this [o]rder," and that
Poafpybitty would be relieved of her fiduciary duties in connection with this
appointment.

Poafpybitty appealed, and the circuit court affirmed. This appeal followed.

ANALYSIS

Standard of Review

"The standard of review applicable to cases originating in the probate court is
controlled by whether the underlying cause of action is at law or in equity." In re
Est. of Moore, 435 S.C. 706, 709, 869 S.E.2d 868, 869 (Ct. App. 2022) (quoting In
re Est. of Hyman, 362 S.C. 20, 25, 606 S.E.2d 205, 207 (Ct. App. 2004)). "[A]n
action for breach of fiduciary duty is either an action at law or in equity depending
on the remedy sought." Bennett v. Est. of King, 436 S.C. 614, 621-22, 875 S.E.2d
46, 50 (2022) (quoting Verenes v. Alvanos, 387 S.C. 11, 18, 690 S.E.2d 771, 774
(2010)); see also Ex parte Wheeler v. Est. of Green, 381 S.C. 548, 554, 673 S.E.2d
836, 839-40 (Ct. App. 2009) ("A case may involve both equitable and legal issues.
However, an appellate court must look to the main purpose of the proceeding in
order to determine the standard of review to exact." (citation omitted)). "[A]
'breach of fiduciary duty [claim] may sound in equity if the relief sought is
equitable.'" Ex parte Wheeler, 381 S.C. at 554, 673 S.E.2d at 839 (second
alteration in original) (quoting Bivens v. Watkins, 313 S.C. 228, 230 n.3, 437
S.E.2d 132, 133 n.3 (Ct. App. 1993)). "An action to remove a personal
representative is equitable in nature." Blackmon v. Weaver, 366 S.C. 245, 248, 621
S.E.2d 42, 43 (Ct. App. 2005).

"The appellate court's standard of review in equitable matters is our own view of
the preponderance of the evidence." Horry County v. Ray, 382 S.C. 76, 80, 674
S.E.2d 519, 522 (Ct. App. 2009). "However, an appellate court still affords a
degree of deference to the trial court because it was in the best position to judge the
witnesses' credibility." In re Est. of Kay, 423 S.C. at 480, 816 S.E.2d at 544-45.
I. Breach of Personal Representative's Duties2

A. Application of Trust Code

We hold the circuit court erred by affirming the probate court's application of the
South Carolina Trust Code (the Trust Code) 3 in evaluating Poafpybitty's actions as
personal representative.

The South Carolina Probate Code (the Probate Code) provides,

A personal representative is a fiduciary who shall
observe the standards of care described by Section
62-7-804[ of the Trust Code]. [He] . . . has a duty to
settle and distribute the estate of the decedent in
accordance with the terms of a probated and effective
will and this code, and as expeditiously and efficiently as
is consistent with the best interests of the estate. He shall
use the authority conferred upon him by this code, the
terms of the will, and any order in proceedings to which
he is party for the best interests of successors to the
estate.

S.C. Code Ann. § 62-3-703(a) (2022). Section 62-7-804 of the Trust Code
provides, "A trustee shall administer the trust as a prudent person would, by
considering the purposes, terms, distributional requirements, and other
circumstances of the trust. In satisfying this standard, the trustee shall exercise
reasonable care, skill, and caution."

As an initial matter, although the circuit court concluded the probate court erred
only by applying section 62-7-804, this section is the only provision of the Trust
Code that does apply to a personal representative. See § 62-3-703(a); § 62-7-804;
see also § 62-7-102 (stating the Trust Code does not apply to administration of
decedents' estates). Therefore, we hold the circuit court erred by finding section
62-7-804 was inapplicable, and instead, the probate court properly referenced this
provision.

2
We address Issues I, III, and V together under this heading.
3
S.C. Code Ann. §§ 62-7-101 to -1106 (2022).
Next, we hold the circuit court erred by affirming the probate court's application of
section 62-7-813 of the Trust Code. The Probate Code requires the personal
representative to provide a copy of a filed inventory and appraisement to
"interested persons who have filed a demand for notice of the filing of the
inventory pursuant to section 62-3-204." S.C. Code Ann. § 62-3-706(A)(3)
(2022); see also S.C. Code Ann. § 62-3-708 (2022) (providing a personal
representative must submit a supplementary inventory or appraisement if she
learns the value in the original is erroneous or misleading). Section 62-7-813 of
the Trust Code contains much stricter requirements that do not apply to personal
representatives. See § 62-7-813(b)(2) (providing a trustee must "throughout the
administration of the trust, keep the distributes . . . . reasonably informed about the
administration of the trust and of the material facts necessary for them to protect
their interests"); § 62-7-813(b)(3) (stating that "upon the reasonable written request
of a beneficiary, other than a qualified beneficiary, . . . unless unreasonable under
the circumstances, [a trustee shall] respond to a beneficiary's written request for
information related to the administration of the trust"); § 62-7-813(c)(1) (providing
a trustee has a continuing duty to "keep the distributees and permissible
distributees, or other qualified beneficiaries who request information in writing,
reasonably informed as to the administration of the trust; and . . . send
annually . . . a written report of the trust property [that] . . . provides the
distributees and permissible distributees, or other qualified beneficiaries who have
requested in writing, with information necessary to protect their interests").

Regarding Poafpybitty's communications with the beneficiaries, the probate court
held that "no statutory demand notice was required in expecting a personal
representative to follow through with her own written accounting commitments"
and that no such notice was required under section 62-7-813. The heightened
standard under 62-7-813 does not apply to personal representatives in
administering estates. See § 62-7-102. Thus, the probate court erred by relying on
the Trust Code in evaluating Poafpybitty's conduct as personal representative. In
particular, the probate court erred in finding Poafpybitty violated a duty to keep
beneficiaries informed of her activities with respect to the Estate. Because a
personal representative is not specifically charged with this duty, we hold the
circuit court erred by affirming the probate court's application of section 62-7-813
of the Trust Code in evaluating Poafpybitty's conduct.

As to the probate court's application of section 62-7-802(a), we hold this does not
alone warrant reversal. See § 62-7-802(a) ("A trustee shall administer the trust
solely in the interests of the beneficiaries."); § 62-3-703(a) (providing a personal
representative "shall use [his] authority . . . for the best interests of successors to
the estate"). Although the Trust Code differs slightly in that the Probate Code does
not use the word "solely," both sections 62-7-802(a) and 62-3-703(a) require the
fiduciary to act in the interests of the beneficiaries.

B. Removal

We hold the circuit court erred by affirming the probate court's removal of
Poafpybitty as personal representative because (1) Irving never petitioned for or
requested her removal and (2) the preponderance of the evidence does not support
removal. We address each point in turn.

Under the Probate Code, the interested parties to an estate have two remedies if a
personal representative violates her fiduciary duty. They may either petition for
the removal of the personal representative pursuant to section 62-3-611 of the
South Carolina Code (2022) or petition the court to compel the personal
representative to perform her duties pursuant to section 62-3-1001(b) of the South
Carolina Code (2022).

Section 62-3-611 governs removal of a personal representative and requires the
removal to be requested by petition.4 See § 62-3-611(a) ("A person interested in
the estate may petition for removal of a personal representative for cause at any
time. Upon filing of the petition, the court shall fix a time and place for hearing.
Notice shall be given by the petitioner to the personal representative . . . . [A]fter
service of the summons and petition upon the personal representative and receipt
of notice of removal proceedings, the personal representative shall not act except to
account, to correct maladministration, or preserve the estate.").

[T]here is a strong deference shown to the personal
representative chosen by the testator. "The Courts have
ever been reluctant to take the management of an estate
from those to whom it has been confided by the testator,
for to that extent the intention expressed in his will would
be defeated." Smith v. Heyward, 115 S.C. 145, 164, 105
S.E. 275, 282 (1920). The power to remove a personal
representative "should be executed with great caution,

4
We note section 62-3-704(g) of the South Carolina Code (2022) may provide a
method for removal for neglecting to comply with the personal representative's
duty to file an inventory and appraisement under section 62-3-706, but Irving did
not advance this argument to the probate court.
and not at all, unless it is made to appear to be necessary
for the protection of the estate, to prevent loss or injury to
it from misappropriation, maladministration or fraud."
Id. at 164-65, 105 S.E. at 282.

Blackmon, 366 S.C. at 251, 621 S.E.2d at 45.

Immediately before trial, Irving's counsel expressly stated, "This is not a petition to
remove the personal representative." He further explained, "I probably would like
to [have the personal representative removed], but I understand the burden of proof
is pretty high. We want to give respect to the Testator. Leave her in her place
because the expense of removing somebody is way too high."

An important aspect of section 62-3-611 is the requirement of notice to
Poafpybitty. Because Irving did not petition for removal under section 62-3-611
and, in fact, expressly stated she was not requesting such relief, we hold the
probate court erred by removing Poafpybitty as personal representative.

Further, the caselaw the circuit court relied upon in determining the probate court
did not err by removing Poafpybitty as personal representative does not
specifically provide that a court may remove a personal representative when such
relief has not been requested. See Church v. McGee, 391 S.C. 334, 344, 705
S.E.2d 481, 486 (Ct. App. 2011) (finding no credible evidence of malfeasance and
affirming the circuit court's rejection of the appellant's request to remove the
personal representative); Blackmon, 366 S.C. at 251-52, 621 S.E.2d at 45 (holding
section 62-3-611(b) governs removal and reversing the trial court's removal of the
personal representative when the record did not show she mismanaged the estate or
failed to perform a required duty); id. at 252, 621 S.E.2d at 45 ("The mere
existence of conflict between a personal representative and a beneficiary is an
inadequate reason for removal of the personal representative."); Floyd v. Floyd,
365 S.C. 56, 69, 615 S.E.2d 465, 472 (Ct. App. 2005), overturned due to
legislative action (involving a party's petition to remove a trustee); Maydwell v.
Maydwell, 185 S.W. 712, 713 (Tenn. 1916) (applying Tennessee law governing
removal of trustees when a beneficiary requested removal of a trustee and holding
a court of equity possessed inherent jurisdiction to remove a trustee independent of
statutory provisions for good cause shown); see also Franklin v. Chavis, 371 S.C.
527, 534, 640 S.E.2d 873, 877 (2007) (declining to order the personal
representative's removal when petitioners had not requested removal in the
underlying action); id. at 534 n.6, 640 S.E.2d at 877 n.6 (noting "[r]emoval for
cause is provided by statute under [section] 62-3-611 . . . , a remedy [the]
petitioners [would be] free to request in the underlying action"); cf.
Hatchell-Freeman v. Freeman, 340 S.C. 552, 556, 532 S.E.2d 299, 301 (Ct. App.
2000) (affirming the removal of the personal representative even though the
decedent's surviving spouse filed no petition for removal when the proceeding was
in fact a contest of the parties' petitions for appointment as personal representative
under section 62-3-203 of the South Carolina Code (2022), not an action to remove
the personal representative, and the surviving spouse had priority for appointment).
Because section 62-3-611 requires an interested party seeking removal of a
personal representative to do so by filing a petition, we hold the circuit court erred
in affirming the probate court's removal of Poafpybitty when Irving neither
petitioned for nor specifically requested her removal.

Next, even assuming the probate court had authority to remove a personal
representative when such relief was not requested, we find the record does not
demonstrate cause for removal under section 62-3-611(b). Section 62-3-611(b)
provides cause for removal of a personal representative 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.

First, as to the best interests of the Estate, Irving's counsel's statement that the
expense of removing a personal representative was "way too high" acknowledges
removal would not be in the best interests of the Estate due to the additional cost.
Next, Irving presented no evidence or argument that Poafpybitty misrepresented
any facts in obtaining her appointment or that she had become incapable of
discharging the duties of the office.

Irving argued Poafpybitty disregarded the probate court's temporary restraining
order by continuing to pay the Estate's legal fees out of the Estate's account. We
find Poafpybitty reasonably concluded she was not restrained from using the
Estate's account to pay customary legal fees to defend the personal representative
and the Estate and to comply with aspects of the probate court's order pertaining to
administration. The order restrained Poafpybitty from expending any additional
estate funds except those necessary for routine maintenance, HOA assessments,
mortgage servicing, and utilities and taxes associated with real property holdings.
Poafpybitty's counsel argued he did not interpret the order to prevent his firm from
continuing the administration of the Estate or defending Poafpybitty. We conclude
Poafpybitty's use of Estate funds to pay legal fees after the probate court issued the
temporary restraining order was not sufficient to establish her disregard of the
order such that it warranted removal. Moreover, the probate court could have
ordered the return of such fees paid to the Estate as an adequate remedy rather than
requiring removal.

Next, we find a preponderance of the evidence shows Poafpybitty did not
mismanage the Estate. Based on our view of the record, Poafpybitty acted within
the discretion provided to her under the will by selling property, repairing property,
and paying the ordinary expenses of the Estate, including taxes, insurance, HOA
dues, and legal fees customary with administration of the Estate and defending
against litigation. See S.C. Code Ann. § 62-3-715 (2022) ("[A] personal
representative, acting reasonably for the benefit of the interested persons, may
properly: . . . (7) make ordinary or extraordinary repairs or alterations in buildings
or other structures, demolish any improvements, raze existing, or erect new party
walls or buildings; . . . (16) pay taxes, assessments, compensation of the personal
representative, and other expenses incident to the administration of the
estate; . . . (18) allocate items of income or expense to either estate income or
principal, as permitted or provided by law; (19) employ persons, including
attorneys, auditors, investment advisors, or agents, even if they are associated with
the personal representative, to advise or assist the personal representative in the
performance of his administrative duties; act without independent investigation
upon their recommendations; and instead of acting personally, employ one or more
agents to perform any act of administration, whether or not discretionary; (20)
prosecute or defend claims, or proceedings in any jurisdiction for the protection of
the estate and of the personal representative in the performance of his duties; (21)
subject to the restrictions imposed in Section 62-3-711(b), sell, mortgage, or lease
any real or personal property of the estate or any interest therein . . . ."); § 62-3-720
("If any 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.").

Finally, we find Poafpybitty complied with the statutory duties of her office and
therefore did not breach any fiduciary duties owed to the beneficiaries. Section
62-3-703(a) of the Probate Code sets forth the personal representative's general
responsibilities. It provides the personal representative has the duty to "settle and
distribute the estate" in accordance with the terms of the will and the Probate Code
"as expeditiously and efficiently as is consistent with the best interests of the
estate" and must exercise these duties as a prudent person would, using reasonable
care, skill, and caution in doing so. See § 62-3-703(a); § 62-7-804.

The probate court found Poafpybitty (1) intentionally inhibited and delayed the
closing of the Estate and unreasonably prolonged the division of assets; (2)
unreasonably withheld information pertinent to the beneficiaries and requested by
them; (3) used her position to manipulate at least one substantial asset to unjustly
enrich herself at the co-beneficiaries' expense; (4) did not act reasonably for the
benefit of all devisees; and (5) did not defend or prosecute this litigation in the
Estate's best interest. 5 We address each of these findings in turn.

Based upon our review of the record, a preponderance of the evidence
demonstrates Poafpybitty complied with her duty to settle and distribute the Estate
in accordance with the will. The will provided Poafpybitty discretion to distribute
the properties so long as the distribution was approximately equal. In addition, the
will directed Testator's debts be paid as soon as practicable after his death.
However, it also stated,

If at the time of my death any of the real property herein
devised is subject to a mortgage, . . . the devisee taking
such mortgaged property shall take it subject to such
mortgage and that he shall not be entitled to have the
obligation secured thereby paid out of my general estate.

Poafpybitty testified she initially believed all of the debts of the Estate needed to
be paid before the real properties could be distributed. She stated she intended to
sell the properties that the co-beneficiaries did not want and use those proceeds to
pay off the debt. She planned to then confer with the co-beneficiaries and divide
the remaining properties and assets equally among them according to which
properties they wanted. Poafpybitty planned to distribute each parcel to one
beneficiary such that each beneficiary's portfolio of properties would be of

5
We note that specific duties of the office are outlined further in subsequent
provisions of the Probate Code. See S.C. Code Ann. §§ 62-3-704 to -715 (2022).
However, the probate court did not find that Poafpybitty violated any of these
specified duties; rather, it found she violated the general fiduciary duties set forth
in section 62-3-703.
approximately equal value instead of distributing the properties in-kind, which
would result in each beneficiary owning a one-quarter interest in each property.
We find her proposed distributions were consistent with this approach and were
consistent with Testator's intent that the distribution be approximately equal.
Although Poafpybitty acknowledged she did not immediately use the proceeds
from the sales to pay off an $80,000 line of credit, she stated she did not do this
because she wanted to make sure the Estate's account was funded. None of these
actions were inconsistent with the provisions of the will. Therefore, the foregoing
demonstrates Poafpybitty complied with her duty to settle and distribute the Estate.

Next, we find Poafpybitty attempted to act expeditiously and efficiently in
administering the Estate but was hampered by the litigation. Bret Davis, counsel
for Poafpybitty and the Estate, testified during trial that it was customary to wait a
full year after appointment and notice to creditors before starting the process of
settling the Estate. However, the co-beneficiaries hired Scoville in April 2015—
about thirteen months after Poafpybitty's appointment. Poafpybitty testified the
co-beneficiaries also stopped speaking to her at that time. We find the record
shows Poafpybitty attempted to comply with Scoville's requests on behalf of the
co-beneficiaries, including the appraisal of the properties, and that up until January
2016, she believed they had reached an agreement as to how to distribute the
properties. Further, Davis testified estate litigation and the inclusion of multiple
real estate properties in the Estate were both factors that could cause a delay in
administration. We find the foregoing demonstrated Poafpybitty complied with the
duty to expeditiously and efficiently administer the Estate.

Next, we find Poafpybitty executed her duties for the best interests of the
successors to the Estate. We acknowledge we are troubled by Poafpybitty's actions
of paying her utilities from the Estate account and her failure to provide complete
information regarding the Estate's property and activities as requested by the
co-beneficiaries. Further, we are mindful that the probate court was in a superior
position to evaluate witness credibility. Nevertheless, we find these actions were
not sufficient to support a finding that she breached any fiduciary duty owed to the
co-beneficiaries or warrant her removal as personal representative.

Aside from attorney's fees, the main dispute between the parties was the disparity
between the two appraised values for the Residence. Irving insists Poafpybitty's
position regarding the value was unjustified in light of the second appraiser Russell
Burgess's subsequent appraisal of the Residence. Although the first appraiser,
James Cromartie, appraised all of the properties in the Estate, Burgess only
appraised the Residence. Cromartie's appraisal reduced the value of several other
properties in the Estate, including the property Irving wished to receive earlier in
the administration of the Estate; therefore, this reduced value was relative to the
values of the other properties. Yet Irving challenged only the value of the
Residence.

Because of this reduction in value of many of the other properties in the Estate, and
especially considering the prior mold and mildew issue, we find it was not
unreasonable or self-dealing for Poafpybitty to take the position that Cromartie's
appraisal—with the inclusion of the cost of the repairs—was the correct value of
the Residence for distribution purposes. Rather, the evidence shows Poafpybitty
held a good faith belief that this was the correct value, even considering the
proposed distribution was to herself.

Cromartie's and Burgess's testimonies also support this conclusion. Cromartie
testified he would not purchase the property at his appraised value of $95,000 even
knowing the mold and water damage had been repaired. When Burgess was asked
if he would purchase the Residence at the $193,000 value he reached, he said he
"would probably want to buy it a little cheaper." Further, Poafpybitty was to take
the Residence subject to the existing mortgage of about $130,000. Based on the
foregoing, we find Poafpybitty complied with her fiduciary duties with respect to
the valuation of the Residence.

Regardless, in an effort to resolve matters with Irving prior to trial, Poafpybitty
relinquished her claim of the Residence and agreed to assign the appraised value of
$193,000 to the Residence. During trial, she stated she agreed to the $193,000
value reached by Burgess even though she did not personally believe the
Residence was worth that much. Rather than demonstrating bad faith or a failure
of her fiduciary duty, Poafpybitty's agreement to this value was an attempt to
resolve the dispute and close the Estate. This would have eliminated the need for
trial. Accordingly, we hold the circuit court erred by affirming the probate court's
finding that Poafpybitty breached her fiduciary duties by advancing the position
that the $95,000 value—plus the repairs—was the correct value for the Residence.

For these reasons and based upon our view of the preponderance of the evidence,
we find the record does not establish cause for removal. In addition, we conclude
the circuit court erred by affirming the probate court's removal of Poafpybitty as
personal representative when Irving did not request such relief.

Further, because we hold the probate court erred by removing Poafpybitty as
personal representative, we hold the probate court had no basis under section
62-3-614 to appoint a special administrator. See S.C. Code Ann. § 62-3-614
(2022) ("A special administrator may be appointed: (1) informally by the court on
the application of an interested person when necessary: (a) to protect the estate of a
decedent prior to the appointment of a general personal representative or if a prior
appointment has been terminated [due to the personal representative's death or
disability]; (b) for a creditor of the decedent's estate to institute any proceeding
under Section 62-3-803 [of the South Carolina Code (2022)]; or (c) to take
appropriate actions involving estate assets . . . .").

Based on the foregoing, we reverse the circuit court's ruling affirming the probate
court's removal of Poafpybitty as personal representative and appointment of a
special administrator.

C. Will Reformation

Poafpybitty argues the will gave her sole discretion to designate property for estate
distribution and that her proposed distribution would have distributed each
property to a single beneficiary such that each beneficiary would receive a
distribution of approximately equal value, consistent with Testator's intent. She
contends that by ordering distribution of the estate to each beneficiary in equal,
one-quarter shares, the probate court impermissibly reformed the will. 6

Because we reverse the probate court's findings of breach of fiduciary duty and
removal of Poafpybitty, we decline to address this issue. See Futch v. McAllister
Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999)
(holding an appellate court need not address remaining issues when the disposition
of a prior issue is dispositive).

II. Award of Attorney's Fees to Irving 7

We hold the circuit court erred by affirming the probate court's award of attorney's
fees to Irving. The circuit court held In re Estate of Kay did not apply but
concluded the probate court acted within its discretion to award attorney's fees
based on sections 62-1-111 and 62-3-712 of the South Carolina Code (2022). We

6
We hold any argument that this court should reverse the probate court's ruling as
to the distribution is abandoned. See Glasscock, Inc. v. U.S. Fid. & Guar. Co., 348
S.C. 76, 81, 557 S.E.2d 689, 691 (Ct. App. 2001) ("[S]hort, conclusory statements
made without supporting authority are deemed abandoned on appeal.").
7
We address Issues II and IV together under this heading.
hold the record does not support the probate court's award to Irving under either of
these provisions.

Section 62-1-111, which was enacted in 2013,8 provides, "In a formal proceeding,
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 estate that is the subject of the controversy." See also S.C. Code
Ann. § 62-1-201(17) (2022) ("'Formal proceedings' means actions commenced by
the filing of a summons and petition with the probate court and service of the
summons and petition upon the interested persons."). Because we find the record
shows Poafpybitty did not take any action in contravention of the will, breach any
fiduciary duty, or otherwise fail to perform her official duties, we find Irving was
not justified in bringing the underlying action. Further, because Poafpybitty
attempted to resolve the parties' dispute by relinquishing her claim to the
Residence prior to trial, we question whether the trial was necessary. Therefore,
we find equity does not support an award of attorney's fees to Irving under section
62-1-111.

Section 62-3-712 provides, "If the exercise of power concerning the estate is
improper, the personal representative is liable to interested persons for damage or
loss resulting from breach of his fiduciary duty . . . ." Because we find Poafpybitty
did not breach her fiduciary duties, we hold Irving was not entitled to an award
under section 62-3-712.

Further, although the circuit court did not apply In re Estate of Kay, we agree the
application of the common fund doctrine, as discussed in In re Estate of Kay, does
not support an award of attorney's fees to Irving. The common fund doctrine
requires that all beneficiaries be united. See 423 S.C. at 489, 816 S.E.2d at 549
("Under the common fund doctrine, a court in its equitable jurisdiction may award
reasonable attorney's fees to the party 'who, at [the party's] own expense,
successfully maintains a suit for the creation, recovery, preservation, or increase of
a common fund or common property.'" (alteration in original) (quoting Layman v.
State, 376 S.C. 434, 452, 658 S.E.2d 320, 329 (2008))). "[I]f the parties' interests
are adverse, the doctrine does not apply." Id. at 490, 816 S.E.2d at 550. Here,
Poafpybitty was an adverse party. Thus, we hold the probate court erred in relying
on the common fund doctrine in awarding attorney's fees to Irving to be paid for by
the Estate.

8
Although In re Estate of Kay was decided in 2018, estate administration in that
case began in 2007. See 423 S.C. at 481-83, 816 S.E.2d at 545-47.
For these reasons, we reverse the circuit court's order affirming the probate court's
award of attorney's fees to Irving.

III. Attorney's Fees of the Personal Representative

We hold the circuit court erred by affirming the probate court's finding Poafpybitty
was required to bear her own legal expenses. Section § 62-3-720 provides, "If any
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." Based
on our view of the preponderance of the evidence, we find the record demonstrates
Poafpybitty was entitled to have her reasonable legal expenses paid for by the
Estate pursuant to section 62-3-720 because she defended Irving's claims and
brought counterclaims against Irving in good faith.

As we stated, we find Poafpybitty's adherence to the value for the Residence as
stated in the Cromartie appraisal was reasonable. Her willingness to take the
distribution subject to the mortgage and relinquishment of her request for this asset
in the final distribution submitted prior to trial further demonstrate she acted in
good faith on this issue. Even though Poafpybitty defended her position of living
in the Residence without paying rent to the Estate, we find this was a good faith
argument. As Testator's spouse, Poafpybitty had been living in the Residence for
about twenty years. Additionally, it is undisputed Steven lived in the Residence
rent-free for approximately eight months after Testator's death, and Matthew had
lived in another Estate property, rent-free, since Testator's death and had continued
to do so at least until the time of trial. In addition, Poafpybitty testified the Estate
paid Matthew's electricity and water. Therefore, we find Poafpybitty had a good
faith argument that one beneficiary be treated equally to two other beneficiaries in
this regard and further that a widow not be required to pay rent to the Estate.

Moreover, Poafpybitty's position that the properties should be distributed to each
beneficiary such that the beneficiary would obtain an entire interest rather than
distributing the properties in-kind was reasonable and consistent with the terms of
the will. This was therefore a position held in good faith. Poafpybitty reasonably
observed that an in-kind distribution of the property to four beneficiaries would
invite potentially expensive and protracted future litigation.

As to Poafpybitty's counterclaim for abuse of process, we find the record shows
she prosecuted this in good faith. Poafpybitty and her counsel felt Irving's
litigation hampered Poafpybitty's efforts to close the Estate and that her claims
were premised on her position that the only proper way to distribute the Estate was
in-kind, even though the will gave Poafpybitty discretion as to how to distribute
the property. For the foregoing reasons, we find the preponderance of the evidence
shows Poafpybitty defended and prosecuted the litigation in good faith.

Furthermore, we hold the circuit court erred by affirming the probate court's ruling
that Poafpybitty was responsible for all of the attorney's fees she incurred after
May 25, 2016, which would include fees incurred in administering the Estate. See
§ 62-3-715(19) (providing "a personal representative, acting reasonably for the
benefit of the interested persons, may properly: . . . employ persons, including
attorneys, . . . even if they are associated with the personal representative, to advise
or assist the personal representative in the performance of his administrative duties;
act without independent investigation upon their recommendations; and instead of
acting personally, employ one or more agents to perform any act of administration,
whether or not discretionary"); see also S.C. Code Ann. § 62-1-201(13) (2022)
("'Expense of administration' includes commissions of personal representatives,
fees and disbursements of attorneys, fees of appraisers, and such other expenses
that are reasonably incurred in the administration of the estate."). First, this date
was arbitrary. Second, this ruling does not distinguish between the fees properly
incurred in administering the Estate versus fees incurred in defending the litigation.
Even if Poafpybitty were not entitled to her fees under section 62-3-720, she is
entitled to have the attorney's fees she incurred in performing acts of
administration after May 25, 2016, paid for by the Estate. On May 27, 2016, the
probate court issued its order granting Irving's motion for a temporary restraining
order. Therefore, any acts of administration undertaken by counsel at that point
were at the direction of the probate court and no evidence demonstrates such
actions were not "reasonably for the benefit" of the beneficiaries. Based on the
foregoing, we reverse the circuit court's ruling as to this issue.

Nevertheless, we note both parties incurred substantial—and potentially
excessive—attorney's fees in this litigation; both parties incurred over $100,000 in
fees prior to this appeal. The probate court made no finding as to the
reasonableness of attorney's fees. Accordingly, we remand for a hearing for the
probate court to determine Poafpybitty's reasonable attorney's fees.

Finally, as to Poafpybitty's request that this court find she is entitled to her
reasonable commission, she did not include this in her statement of the issues on
appeal or argue this point in the body of her brief. Thus, we conclude this issue
was abandoned on appeal. See Glasscock, Inc., 348 S.C. at 81, 557 S.E.2d at 691
("[S]hort, conclusory statements made without supporting authority are deemed
abandoned on appeal and therefore not presented for review.").

CONCLUSION

For the foregoing reasons, the circuit court's decision affirming the probate court's
order is

REVERSED AND REMANDED.

GEATHERS, HEWITT, and VINSON, JJ., concur.