Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Byrd v. McDonald

Court of Appeals of South Carolina

June 8, 2016

Wilkins Lee Byrd, Kay R. Larson, John Norwood Klettner, Laura K. Bynum, Ann B. Crump, Robert Larsen, Joan Rutledge Gary, John Robert Stanton, Charles E. Stanton, Byrd L. Thomson, and John Doe and Richard Roe as Representatives of all persons unknown claiming any right, title, estate, interest in or lien upon the real estate described in the appeal herein, including but not limited to any unknown owners, unknown heirs, unknown devisees of S.W. Byrd, Mary Moore Byrd, Etta B. Klettner, S. J. Klettner, Sr., Susan Wilkins Byrd, Mary M. Byrd, Joseph D. Rutledge, John R. Larsen, Charles E. Byrd, Jewel Butler Byrd, Wilkins Norwood Byrd, Ruth Byrd, Marian Moore Byrd, Mary K. Stanton, S. J. Klettner, Jr., Mary R. Larsen, John Rutledge Gary, Jewel Elizabeth Byrd, or any person, any unknown infants of persons under disability or persons in the military service designated in a class as Richard Roe, as to the property described in the petition herein and designated as Tax Map No. 076-00-02-004, Appellants,
v.
E. Butler McDonald, Respondent. Appellate Case No. 2014-000589

          Heard January 7, 2016

         Appeal From Darlington County Marvin I. Lawson, Acting Probate Court Judge J. Michael Baxley, Circuit Court Judge

          Brown W. Johnson, of Clarke Johnson Peterson & McLean, PA, of Florence, for Appellants.

          Gena Phillips Ervin, of Orr Elmore & Ervin, LLC, of Florence, for Respondent.

          LOCKEMY, J.

         In this action for partition and the determination of heirs, Wilkins Byrd (Wilkins), Kay Larsen, John Klettner, Laura Bynum, Ann Crump, Robert Larsen, Joan Gary, John Stanton, Charles Stanton, Byrd Thompson, and unknown persons claiming an interest in the subject real property (collectively, Appellants) appeal the circuit court's affirmance of the probate court's decision to order the public sale of real property owned jointly by Appellants and E. Butler McDonald (McDonald). On appeal, Appellants argue the probate court (1) erred in treating the percentages of ownership as personal property rather than as realty, (2) lacked subject matter jurisdiction to hear the partition action, (3) erred in applying section 15-61-25(A) of the South Carolina Code (2006) rather than section 62-3-911 of the South Carolina Code (Supp. 2012), (4) erred in finding Appellants failed to comply with the probate court's order, (5) erred in holding partition by allotment was not practical and in ordering a public sale, and (6) erred in awarding reasonable attorney's fees and costs to McDonald pursuant to section 15-61-110 of the South Carolina Code (2005). We affirm in part and vacate in part.

         FACTS

         S.W. Byrd owned real property in Darlington County (the S.W. Byrd Farm), ownership of which passed to his heirs upon his death in 1923. The estates of several of S.W. Byrd's heirs were not probated. In April 2012, McDonald filed with the Darlington County Probate Court a petition to determine the heirs of S.W. Byrd and physically partition the S.W. Byrd Farm. At that time, more than ten years had passed since the deaths of S.W. Byrd's original heirs, so their unprobated estates could not be probated.[1]

         At trial, McDonald referred to a chart he believed correctly listed the owners of the S.W. Byrd Farm and their percentages of ownership of the property (the heir chart). Wilkins believed the heir chart correctly identified the heirs but incorrectly listed some of the percentages of ownership. Specifically, Wilkins believed the interest of one deceased relative, Betty Byrd, was treated as personal property passing under Georgia law rather than as real property passing under South Carolina law. Consequently, Wilkins believed the heir chart did not accurately reflect the percentages of ownership by Betty Byrd's heirs.

         In its order, the probate court listed the names of S.W. Byrd's heirs and their percentages of ownership of the S.W. Byrd Farm. The probate court found no interested party had timely notified McDonald's counsel of a desire to purchase the S.W Byrd Farm. The probate court also found physical partition of the property was impractical and ordered the property to be sold at auction. Finally, the probate court found, pursuant to section 15-61-110, McDonald was entitled to reimbursement of his attorney's fees and costs incurred in bringing the action. On appeal, the circuit court affirmed the probate court's order. This appeal followed.

         STANDARD OF REVIEW

         "A proceeding in probate court may either be an action at law or in equity." In re Estate of Holden, 343 S.C. 267, 278, 539 S.E.2d 703, 709 (2000). "Whether the action is one at law or in equity is determined by the nature of the pleadings and the character of the relief sought." Id. "When a probate court proceeding is an action at law, the circuit court and the appellate court may not disturb the probate court's findings of fact unless a review of the record discloses there is no evidence to support them." Neely v. Thomasson, 365 S.C. 345, 349-50, 618 S.E.2d 884, 886 (2005). "Questions of law, however, may be decided with no particular deference to the lower court." Id. at 350, 618 S.E.2d at 886. "The question of subject matter jurisdiction is a question of law." Porter v. Labor Depot, 372 S.C. 560, 567, 643 S.E.2d 96, 100 (Ct. App. 2007).

         LAW/ANALYSIS

         A. Percentages of Ownership

         Appellants argue the probate court erred in treating Betty Byrd's percentage of ownership as personal property rather than as realty. According to Appellants, the percentages listed in the heir chart-and adopted by the probate court-improperly treated Betty Byrd's ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.