In the Matter of the Estate of Marion M. Kay.
Martha Brown and Mary Moses, Respondents-Petitioners. Edward D. Sullivan, as Personal Representative of the Estate of Marion M. Kay, Petitioner-Respondent, Appellate Case No. 2016-002337
from Laurens County Donald B. Hocker, Probate Court Judge
OF CERTIORARI TO THE COURT OF APPEALS
March 7, 2018
G. Hawkins, of the Law Office of Daryl G. Hawkins, LLC, of
Columbia, for Petitioner/Respondent.
R. Ferguson, of Cox Ferguson & Wham, LLC, of Laurens, for
cross-appeal primarily concerns the amount of compensation
owed to Petitioner/Respondent Edward Sullivan as personal
representative (PR) of Marion Kay's estate. Sullivan
filed a petition to settle the estate and sought probate
court approval for his commissions as PR together with fees
and costs. In response, Respondents/Petitioners Martha Brown
and Mary Moses (Brown and Moses), cousins of the deceased and
two of multiple beneficiaries under the will, challenged his
compensation as excessive, and the probate court agreed,
reducing Sullivan's commissions, disallowing certain fees
and costs, and awarding attorney's fees to Brown and
Moses. The circuit court affirmed, and both sides appealed.
In a 2-1 opinion, the court of appeals affirmed in part and
reversed in part. In re Estate of Kay, 418 S.C. 400,
792 S.E.2d 907 (Ct. App. 2016). We affirm in part, reverse in
part, and remand to the probate court.
proceeding before the probate court may sound in equity or at
law. In re Estate of Holden, 343 S.C. 267, 278, 539
S.E.2d 703, 709 (2000). Brown and Moses demanded a hearing to
challenge Sullivan's compensation for his services in
administering Kay's estate-an action in equity. Lee
v. Lee, 251 S.C. 533, 534, 164 S.E.2d 308, 308 (1968)
(holding an action for an accounting to determine whether the
guardian received improper compensation was in equity).
Ordinarily, an appellate court reviews cases in equity by
finding facts in accordance with its own view of the
preponderance of the evidence. Townes Assocs., Ltd. v.
City of Greenville, 266 S.C. 81, 86, 221 S.E.2d 773, 775
(1976). 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. Lewis
v. Lewis, 392 S.C. 381, 391, 709 S.E.2d 650, 655 (2011).
threshold issue in this case is the applicability of the
"two-judge rule" to a decision of a probate judge
which is affirmed by a circuit court judge. The majority of
the court of appeals employed the two-judge rule in
affirming, while the dissenting judge, then-Acting Judge Few,
posited that the standard of review in an appeal from an
equity case should not change simply because two judges have
made the same factual determination, and would have applied a
preponderance of the evidence standard of review in this
case. We take this opportunity to clarify the appropriate
standard of review in cases where the probate court's
decision is affirmed by the circuit court.
has become known as the two-judge rule had its genesis in
Townes, wherein the Supreme Court undertook to
explain the applicable standards of appellate review in
various types of cases. In Townes, a master made
findings of fact and conclusions of law which were concurred
in by the circuit court, and the Court stated that: "In
an action in equity, tried first by a master or a special
referee and concurred in by the judge, the findings of fact
will not be disturbed on appeal unless found to be without
evidentiary support or against the clear preponderance of the
evidence." 266 S.C. at 86, 221 S.E.2d at 775-76.
the court of appeals and this Court have applied the
two-judge rule to probate cases where the circuit court judge
has agreed with the decision of the probate court. See
Geddings v. Geddings, 319 S.C. 213, 216, 460 S.E.2d 376,
378 (1995) (applying the two-judge rule where the circuit
court affirmed the probate court's decision that a wife
had not waived her right to invoke her elective share);
Dean v. Kilgore, 313 S.C. 257, 260, 437 S.E.2d 154,
155 (Ct. App. 1993) ("Although Townes sets
forth the two-judge rule for equity cases first tried by a
master or special referee and subsequently affirmed or
concurred in by the circuit court, we see no reason not to
apply the same rule to an affirmance or concurrence of the
circuit court with the probate court."). Relying on this
precedent, a majority of the court of appeals held the
two-judge rule applied.
the framework set out in Townes, prior to our master
in equity system, when circuit judges referred matters to
special referees or masters to make findings of fact, the
limited scope of appellate review over factual findings
concurred in by two judges may have been appropriate.
However, we hold today that the two-judge rule has no
applicability to cases wherein the circuit court, sitting in
a purely appellate capacity, as here, affirms the findings of
a lower tribunal. Instead, the applicable standard of review
is the same as in other equity matters, and the appellate
courts of this state may take their own view of the
preponderance of the evidence. Accordingly, we analyze this
case through this broad lens.
Kay died on May 3, 2007, leaving a will that named Sullivan,
her close friend and estate planning attorney, as personal
representative. At the time of Kay's death, she owned a
house, a ten acre parcel of land, and a one-half undivided
interest in 330 acres (the Farm); the remaining one-half
interest belonged to Brown and Moses. Kay left the residuary
of her estate as follows: (1/4) to Lisbon Presbyterian
Church, (1/4) to Lisbon Presbyterian Church Cemetery fund,
and the remaining (1/2) to five beneficiaries who each
received (1/10), consisting of Marla Elizabeth Heard, Bart
Edward Heard, Brown, Moses, and the Presbyterian Home of
Carolina. Brown and Moses had believed Kay would leave them
her interest in the Farm, but instead, they simply were named
as (1/10) residuary beneficiaries.
will also granted an option to Kay's neighbor, Charles
Copeland, to purchase the real estate within eight months of
her death "at the fair market price on the date of my
death, the decision of my PR regarding the fair market price
to be final." (Copeland Option). Additionally, the will
provided "reasonable compensation for [Sullivan's]
services rendered and reimbursement for reasonable ...