THE STATE OF SOUTH CAROLINA
In The Court of Appeals
In Re: The Estate of Melvin Hyman; In Re: The Estate of Maintzie R. Hyman; In Re: The Ancillary Estate of Melvin Richardson Hyman, Sr.
M. Richardson Hyman, Jr., Appellant,
v.
Maintzie Carolina Gugliotti; Mary Caroline Hyman, as Personal Representative of the Estate of Maintzie R. Hyman; The Estate of Maintzie R. Hyman; Mary Caroline Hyman, Individually; Mary Caroline Hyman, as Guardian of Benjamin Fraser Hyman, a person who is Incapacitated or Incompetent; Benjamin Fraser Hyman, a person who is Incapacitated of Incompetent; and Sara H. Hyman, Respondents.
Appeal From Darlington County
Paul M. Burch, Circuit Court Judge
AFFIRMED
Opinion No. 3895
Heard October 12, 2004 Filed November
22, 2004
AFFIRMED
Melvin Richardson Hyman, Jr., of Charleston, for Appellant.
Charles J. Hupfer, Jr., and John R. Chase, both of Florence, Maintzie Caroline Gugliotti, of Charleston, and Mary Caroline Hyman and Benjamin Fraser Hyman, both of Savannah, for Respondent.
PER CURIAM: M. Richardson Hyman, Jr. appeals a circuit court order affirming the special referees decision that a vested remainder in certain stocks owned by Hymans father passed to his wife through the residuary clause of his will and not through a direct devise to his children. We affirm.
FACTS
Following a lifetime of distinguished service to the people of this state as a highly respected member of the South Carolina Bar, Melvin Hyman passed away in 1973. He was survived by his wife, Maintzie R. Hyman, and two children, Melvin R. Hyman and Mary C. Hyman. In his last will and testament, Melvin Hyman granted a life estate in certain securities to his wife, with a remainder interest to his two children. Melvin Hyman expressly stated in his will that his childrens remainder interest would vest immediately upon [his] death, subject only to the life estate devised and bequeathed to my said wife.
In 1984, Melvin Hymans son, Melvin R. Hyman (Testator), was diagnosed with a life threatening disease. Because his condition worsened over the years following this diagnosis, Testator decided to undergo an operation in September 1987. In contemplation of serious risks inherent in this particular kind of surgery, he executed a will shortly before the operation. A few weeks following the surgery, Testator passed away. Testator was survived by his mother, Maintzie; his second wife, Sara Hyman; and three children from his first marriage, M. Richardson Hyman, Jr. (Appellant), Benjamin F. Hyman, and M. Caroline Hyman.
Article three of Testators will, which establishes a trust for the benefit of his children, states the following:
I will, devise, and bequeath to my three children any and all property which I may receive by reason of inheritance from my mothers [Maintzies] estate.
Testator also provided that the residue of his estate was to be distributed to his wife, Sara Hyman, outright and free of trust.
In January 1999, Maintzie R. Hyman, wife of Melvin Hyman and mother of Testator, passed away, terminating her life estate in the aforementioned securities at issue in this case. At this time, the remainder interests devised to Testator and Mary C. Hyman became possessory. Sara Hyman, Testators wife, began receiving distributions and paying taxes on Testators portion of the securities pursuant to the residuary clause of Testators will.
In 2001, Appellant filed this action seeking to reopen Testators estate and declare Testators three children the lawful heirs of the securities pursuant to article three of Testators will. The case was referred by consent of the parties to a special referee. At trial, Appellant offered testimony, over the respondents objection, from Mary C. Hyman, sister of Testator, which evidenced Testators intent that his remainder interest in the securities pass through his will to his children, notwithstanding the wills express language. [1] Although this testimony was allowed at trial, the referee later determined it was improperly admitted, as the will contained no ambiguity which would warrant the admission of extrinsic evidence. The referee found, by the plain and ordinary meaning of the wills language, that the remainder interest in the securities owned by Testator passed to his wife through the residuary clause of his will and not to his children by the direct devise of article three. The circuit court affirmed the referees decision. This appeal follows.
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. Howard v. Mutz, 315 S.C. 356, 361-62, 434 S.E.2d 254, 257-58 (1993). This is an action at law. NationsBank of South Carolina v. Greenwood, 321 S.C. 386, 392, 468 S.E.2d 658, 661 (Ct. App. 1996) (holding an action to construe a will is an action at law). If a proceeding in the probate court is in the nature of an action at law, review by this court extends merely to the correction of legal errors. Townes Assocs. Ltd. v. City of Greenville, 266 S.C. 81, 86, 221 S.E.2d 773, 775 (1976).
LAW/ ANALYSIS
Appellant argues the probate court erred in finding no ambiguity in Testators will and refusing to consider extrinsic evidence to ascertain Testators true intent. We disagree.
In construing a will, a court should give effect to the expressed intention of the testator. Bagwell v. Alexander, 285 S.C. 331, 329 S.E.2d 771 (Ct. App. 1985). In ascertaining this intent, a courts first reference is always to the will's language itself. Fenzel v. Floyd, 289 S.C. 495, 498, 347 S.E.2d 105, 107 (Ct. App. 1986). When construing this language, the reviewing tribunal must give the words contained in the document their ordinary and plain meaning. In re Estate of Fabian, 326 S.C. 349, 353, 483 S.E.2d 474, 476 (Ct. App. 1997). Where the testators intent is ascertainable from the will and not counter to law, we will give it effect. Id. Only when the wills terms or provisions are ambiguous may the court resort to extrinsic evidence to resolve the ambiguity. See Fenzel, 289 S.C. at 498, 347 S.E.2d at 107.
In the case at bar, the Testators remainder interest in the securities clearly does not pass through article three of the will to his children when the language of article three is given its plain and ordinary meaning. The provision states, I will, devise, and bequeath to my three children any and all property which I may receive by reason of inheritance from my mothers estate. Testator owned his remainder interest in the securities at the time he executed his will. The remainder interest, though subject to his mothers life estate, was at no time part of his mothers actual estate and, thus, never passed to him through inheritance from his mother. Appellant contends, however, that the provision is ambiguous; therefore, the court should consider extrinsic evidence to ascertain Testators true intent. We do not agree with this position.
There are two types of ambiguities found in the construction of wills:
Ambiguities . . . are patent and latent; the distinction being that in the former case the uncertainty is one which arises upon the words of the . . . instrument as looked at in themselves, and before any attempt is made to apply them to the object which they describe, while in the latter case the uncertainty arises, not upon the words of the . . . instrument as looked at in themselves, but upon those words when applied to the object or subject which they describe.
Fabian, 326 S.C. at 353, 483 S.E.2d at 476 (quoting Jennings v. Talbert, 77 S.C. 454, 456, 58 S.E. 420, 421 (1907)). It is undisputed that the will in the case before us contains no patent ambiguity arising from the wills own language. It is, however, argued that, when one considers Testators property and the circumstances known to him at the execution of his will, a latent ambiguity arises and extrinsic evidence may be admitted to resolve it.
Appellant first contends the will is inconsistent when applied to Testators property because, without the remainder interest, the childrens trust is left unfunded. According to Appellant, Testator must have been aware of his mothers relative good health at the time of the wills execution and, thus, could not have intended to leave the trust barren in the probable circumstance that he predeceased his mother. Because a testator is presumed to have disposed of all property that he owned and the remainder interest was not specifically disposed, Appellant argues the will is ambiguous. See Gano v. Gano, 88 N.E. 146, 147 (Ill. 1909).
The presumption, arising from the laws disfavoring of partial intestacy, that a testator intends to dispose of his entire estate is, in fact, a longstanding rule in South Carolina. See Dobson v. Smith, 213 S.C. 15, 48 S.E.2d 607 (1948). However, intestacy is not an issue in this matter. Testator disposed of his entire estate under the wills residuary clause. Furthermore, by Testators language in article three, he acknowledges he does not own the property, which he may receive by reason of inheritance from his mother. These words clearly establish a contingency providing for Testators children in the event their grandmother died before their father, no matter how unlikely. Where a testator employs language that is clear and definite, the function of the court is consigned to the interpretation of the will and the enforcement of its provisions without resorting to rules of construction. 80 Am. Jur. 2d Wills 1132 (2004). Circumstances known to Testator at the time of execution are an admissible aid in construing doubtful provisions, but the main recourse must be to the language used in the will. Limehouse v. Limehouse, 256 S.C. 255, 257, 182 S.E.2d 58, 59 (1971) (emphasis added). Because the language of Article three is clear and definite, not doubtful, the referee was proper in upholding the provisions plain meaning.
Appellant also contends the will is ambiguous because extrinsic evidence in the form of Testators sisters testimony shows Testators intent to be different from the plain language of the will and the findings of the special referee. Again, we disagree.
A court may admit extrinsic evidence to determine whether a latent ambiguity exists. [2] Fabian, 326 S.C. at 353, 483 S.E.2d at 476. In order to find an ambiguity, however, the extrinsic evidence must reflect that the words of the will, when applied to the object or subject which they describe, are incapable of application as they stand. Boykin v. Capehart, 205 S.C. 276, 31 S.E.2d 506 (1994). The mere showing that a testator may have intended a testamentary construction in direct contradiction to the plain meaning of the wills language is not enough. As the supreme court has stated, [a] will must be read in the ordinary and grammatical sense of the words employed, unless some obvious absurdity, repugnancy or inconsistency with the declared intention of the testator should follow. In the Matter of Ezra Clark, 308 S.C. 328, 330, 417 S.E.2d 856, 857 (1992).
The special referee correctly found that giving the language of this will its plain and ordinary meaning did not render it incapable of application or result in an obvious absurdity, repugnancy, or inconsistency with Testators declared intent. Boykin, 205 S.C. at 279, 31 S.E.2d at 508; Id. At the time Testator created his will, Maintzie Hyman had a considerable estate she conceivably could have left to Testator if the contingency of her death before his had been met, thereby fulfilling his primary goal of providing for the reasonable comfort and proper education of his three children. Accordingly, the evidence supports the trial courts findings that no latent ambiguity exists; therefore, the use of extrinsic evidence to determine Testators intent is not appropriate.
CONCLUSION
For the reasons stated herein, the circuit court is
AFFIRMED.
GOOLSBY, ANDERSON, and WILLIAMS, JJ., concur.
[1] Specifically, Testators sister testified she and her brother both frequently referred to their vested remainder interests in their mothers life estate as property that would come to them from their mother, their mothers estate, or the Hyman estate.
[2] Once the court finds a latent ambiguity, extrinsic evidence is also permitted to help the court determine the testators true intent and resolve the ambiguity. Fabian, 326 S.C. at 353, 483 S.E.2d at 476.