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Supreme Court Seal
South Carolina
Judicial Department
2004-UP-187 - Frederick v. Dunbar


In The Court of Appeals

Zepher Frederick, as Personal Representative of the Estate of Forriest Cave,        Appellant,


Manly Dunbar; First Citizens Bank & Trust Company of South Carolina; and Lang Dunbar,        Defendants,

Of Whom Manly Dunbar and Lang Dunbar are the        Respondents.

Appeal From Barnwell County
Richard B. Ness, Special Referee

Unpublished Opinion No. 2004-UP-187
Submitted March 8, 2004 – Filed March 18, 2004


J. Martin Harvey and Pete Kulmala, both of Barnwell, for Appellants.

Miles Loadholt, of Barnwell, for Respondents.

PER CURIAM:  Appellant, the personal representative of the Estate of Forriest Cave, brought this action against Respondents, Manly Dunbar and Lang Dunbar, seeking to determine that certain cashier’s checks and certificates of deposit were assets of the decedent’s estate.  The matter was referred to a special referee, who ruled in favor of Respondents.  This appeal follows.  We affirm. [1]


Forriest Cave died in Barnwell County on August 26, 2001.  Appellant, a resident of Barnwell County, is Cave’s niece, the sole devisee in Cave’s Last Will and Testament and the personal representative of the estate.  Manly Dunbar and Lang Dunbar are Cave’s nephews.

Although they lived in Ohio, the Dunbars often visited Cave’s home.  On a visit to her home in 1999, Cave informed the Dunbars that she had $65,000.00 in cash hidden underneath her mattress.  The Dunbars told her it was not wise to keep such large amounts of cash in her home and convinced her to put the money in certificate of deposits.  As a result, on August 26, 1999, Cave put the money in two certificate of deposits with First Citizens Bank—one issued in Cave’s name only, the other issued in Cave’s name, payable on death to Manly Dunbar.

On a subsequent visit in April 2000, Cave told the Dunbars about an additional sum of cash in the house.  Cave converted this cash into cashier’s checks, one made payable to Cave only and two made out to “Forriest Cave or Manly D. Dunbar or Lang D. Dunbar, Jr.”  Cave placed the cashier’s checks in a bank bag, which she gave to the Dunbars along with the bank bag’s key, asking them to take the bag with them back to Ohio.  Deciding it was best to leave the bag with Cave, the Dunbars hid the bank bag in Cave’s home, though they retained possession of the bag’s key.

Upon Cave’s request, Manly Dunbar again visited Cave in March 2001.  After seeing his aunt, Manly Dunbar went to First Citizens Bank and spoke with certain representatives of the bank.  As a result of the conversation, Barbara Wright, a longtime employee of the bank and lifetime friend of Cave, traveled to Cave’s home with specific instructions from her supervisor not to transact any business with Cave unless she was alert and in a position to do business.  As per Cave’s instructions, Wright assisted Cave in performing transactions that made Manly Dunbar a joint owner of a certificate of deposit having a face value of $16,659.83, a joint owner of Cave’s checking account, and a joint owner of Cave’s safety deposit box.

Appellant commenced this action on August 31, 2001 by filing a Complaint, along with a Rule to Show Cause and Temporary Restraining Order seeking to prohibit the Dunbars from disposing or liquidating the cashier’s checks and certificate of deposits.

On December 20, 2001, the circuit court referred this matter to a special referee pursuant to Rule 53, SCRCP on Appellant’s motion.  On the accompanying form order, the circuit court left blank the line supplied for the deadline for which the case must be heard and final order filed.  A hearing was held before the special referee on February 6, 2002, and an order in favor of the Dunbars was filed on September 18, 2002.


Timeliness of Order/ Jurisdiction

Frederick asserts that the special referee’s order should be declared void and without effect because the December 20, 2001 Order of Reference had expired, leaving the special referee without jurisdiction to issue the order.  We disagree.

Effective July 1, 1985, the South Carolina Supreme Court issued an order outlining certain procedures applicable to masters-in-equity and referees.  This order included the following provisions:

IT IS FURTHER ORDERED that within sixty (60) days from the date of filing of the Order of Reference, the Master or Referee shall hear the referred matter.

IT IS FURTHER ORDERED that within sixty (60) days from the date of the hearing, the Master or Referee shall make and file his report or order with the clerk of court, unless such time shall have been extended in writing by the Chief Judge for Administrative Purposes upon a showing of exceptional circumstances.

The crux of Appellant’s argument is that because over seven months passed between the hearing and order in this case, the special referee failed to comply with the supreme court’s 1985 mandate that referees file orders within sixty days of holding a hearing on the matter.  Citing our decision in Smith v. Ocean Lakes Family Campground, 315 S.C. 379, 433 S.E.2d 909 (Ct. App. 1993), Appellant contends the failure to meet the deadline divested the special referee of jurisdiction over the matter.

Appellant’s reliance on the 1985 supreme court order to establish a timeliness requirement is misplaced because it no longer governs the procedure for references to masters-in-equity and referees.  Instead, Rule 53, SCRCP has become the controlling authority over such references and has fully supplanted the 1985 order.

In 1986, our supreme court substantially amended Rule 53, SCRCP.  Among other changes, the amended rule left scheduling of the time and place of hearings to the referee.  Such a delegation of discretionary scheduling authority cannot be concurrently reconciled with the mandatory sixty-day time limit proscribed by the 1985 order, and as such, the amended Rule 53 must be understood to supplant its predecessor.  Cf. Ramsey v. County of McCormick, 306 S.C. 393, 397, 412 S.E.2d 408, 410 (1991) (“[W]here conflicting provisions exist, the last in point of time or order of arrangement, prevails.”).

Moreover, the 1986 amendments also made clear that referees have the same powers as a court sitting without a jury unless the order of reference explicitly limits the referee’s authority.  Rule 53, SCRCP, Notes to the 1986 Amendments.  Accordingly, just as the circuit court’s order of reference can limit the subject matter to which the referee’s authority extends, so too can the order of reference limit the duration of that authority.  Such was our holding in Ocean Lakes.  In that case, we ruled that a master had been divested of jurisdiction for failing to file an order within the ninety-day time limit the circuit court included in its order of reference.  Id.  Unlike the order of reference in Ocean Lakes, which “expired by its own terms 90 days after the date of the order of reference,” the order of reference in the instant contained no temporal limitation, no period after which it would automatically expire.  See Ocean Lakes, 315 S.C. at 381, 433 S.E.2d at 910. 

The rule was amended again in 1999, and as the following notes to the amendment explain, previous procedural restrictions were done away with: 

The detailed discussion of the powers of masters and special referees, and the procedure to be followed in matters pending before them, has been eliminated as unnecessary since the master or special referee has all the powers that a circuit court judge sitting without a jury would have in the matter and the procedure is that provided by the South Carolina Rules of Civil Procedure.

Rule 53, SCRCP, Notes to the 1999 Amendment.

Accordingly, as a corollary to our supreme court’s adoption of Rule 53 as the exclusive controlling authority for references to masters and referees, the 1985 order is no longer of any effect, and masters and referees are subject to no temporal limits for order entry other than those included in the order of reference.  Therefore, because the order of reference contained no time restraint, jurisdiction remained soundly with the referee when the order was issued on September 17, 2002.

Inter Vivos Gift

Appellant asserts that the special referee erred in concluding that the cashier’s checks were inter vivos gifts to the Dunbars.  We disagree.

“An inter vivos gift is a contract between the living which takes place by the mutual consent of the donor, who divests himself of the property given in order to transmit the title to it to the donee gratuitously, and the donee, who accepts and acquires legal title thereto.”  Baptist Found. for Christian Educ. v. Baptist Coll. at Charleston, 282 S.C. 53, 58, 317 S.E.2d 453, 457 (Ct. App. 1984).  In order to establish the existence of an inter vivos gift, there must be a donative intent to transfer the property, a delivery by the donor, and an acceptance by the donee.  Worrell v. Lathan, 324 S.C. 368, 371, 478 S.E.2d 287, 288 (Ct. App. 1996). 

The thrust of Appellant’s contention in this case is that the delivery element was not satisfied because Cave never relinquished possession.  Although a transfer of possession is perhaps the clearest form of delivery, it is not the only method by which delivery can be made.  Our supreme court explained this in Smith v. Johnson, 223 S.C. 64, 70, 74 S.E.2d 419, 421 (1953), when it stated:

It has been settled that it is not necessary that there should be in all cases an actual manual delivery.  The principle is stated thus:  Property in a chattel cannot be transferred by a parol gift without delivery; but by delivery is not meant an actual manual delivery in all cases, but any circumstances amounting to a clear demonstration of the intention of the one to transfer, and of the other to accept, and which puts it into his power, or gives him authority to take possession, is all that is necessary, and is a fact that is left to the jury.

Id. at 70, 74 S.E.2d at 421 (internal quotations omitted).  Indeed, whenever a donor intending to make a gift “so acts as to put it within the power of the donee to take possession and exercise dominion and control, he has completed delivery, whether he actually makes a manual deliverance of the thing itself or not.”  Copeland v. Craig, 193 S.C. 484, 496, 8 S.E.2d 858, 866 (1940). 

Applying the forgoing to the case at bar, when Cave bestowed the key to the bank bag upon the Dunbars, she relinquished and the Dunbars retained much more than a small metallic object.  Keys are instrumentalities of access; to deliver a key is to deliver that which is held under lock.  See Jaggers v. Estes, 22 S.C.Eq. (3 Strob. Eq.) 379 (1849) (“But if the key be delivered of a desk, in which a paper or a jewel is contained, the paper or jewel is thereby delivered; because he who has the key has the dominion of it.”).  Although the Dunbars left the bank bag hidden in Cave’s residence, by retaining the key given to them, they likewise retained the power to take possession of the bag’s contents.  As correctly noted by the special referee, “possession of the key gave the Dunbars sole authority to take possession of the cashier’s checks at any time they desired, as even Ms. Cave did not have access to the checks without the key to open the locked bag.”  Accordingly, because Cave’s delivery of the key satisfied the element of delivery for the cashier’s checks, the continued physical presence of the bag in Cave’s residence does not render ineffective the inter vivos gift to the Dunbars.

Mentally Competency

Lastly, Appellant contends that the special referee erred in concluding that Cave was mentally competent when she executed the banking transaction on March 16, 2001.  We disagree.

When a party challenges a transaction based on mental incompetence, “the party alleging incompetence bears the burden of proving incapacity at the time of the transaction by a preponderance of the evidence.”  In re Thames, 344 S.C. 564, 572, 544 S.E.2d 854, 858 (Ct. App. 2001) (internal citations omitted).  This Court has previously defined contractual capacity as “a person’s ability to understand, at the time the contract is executed, the nature of the contract and its effect.”  Id. at 570, 544 S.E.2d at 857.  To make this determination, we generally inquire as to whether the individual lacked sufficient mental capacity to reasonably understand the transaction, including the consequences and effects the transaction has upon the individual’s rights and interests.  Id. 

At trial, Appellant relied primarily on assessments of Cave’s capacity in general—including testimony that she tended to be more alert in the afternoon than in the morning—to insinuate her incapacity on the morning of the transaction.  The special referee noted this deficiency by stating that although Appellant “offered several witnesses to testify about Ms. Cave’s mental state prior to and subsequent to March 16, [Appellant] offered no testimony about Ms. Cave’s mental capacity on the date these transactions occurred.”  The referee’s analysis is in keeping with the rule that the question of competency relates only to the date of the transaction.  Church v. Trotter, 278 S.C. 504, 506, 299 S.E.2d 332, 333 (1983) (“[T]his Court has looked specifically to the condition of a party at the time of a transaction.”).  Respondent, on the other hand, introduced the testimony of Ms. Wright, the bank employee under specific instructions not to transact any business with Cave unless she was alert and in a position to do business.  This was the only testimony of an unbiased witness as to Cave’s capacity at the time of the transaction.  Accordingly, viewing the record in full, we find sufficient evidence to support the referee’s conclusion that the burden of proving Cave’s incapacity was unmet by Appellant.


HEARN, C.J., ANDERSON and BEATTY, JJ., concur.

[1] We decide this case without oral argument pursuant to Rule 215, SCACR.