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,
E. Butler McDonald, Respondent. Appellate Case No. 2014-000589
January 7, 2016
From Darlington County Marvin I. Lawson, Acting Probate Court
Judge J. Michael Baxley, Circuit Court Judge
W. Johnson, of Clarke Johnson Peterson & McLean, PA, of
Florence, for Appellants.
Phillips Ervin, of Orr Elmore & Ervin, LLC, of Florence,
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.
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.
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.
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.
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).
Percentages of Ownership
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 ...