THE STATE OF SOUTH CAROLINA
In The Supreme Court
Esther C. Williams, Petitioner,
David G. Williams, as
of the Estate of Ralph
Howard Williams, Respondent.
ON WRIT OF CERTIORARI TO THE COURT OF
Appeal From Barnwell County
Costa M. Pleicones, Judge
Opinion No. 24958
Heard May 27, 1999 - Filed June 28, 1999
REVERSED AND REMANDED
E.T. Moore, Jr., of Barnwell, for petitioner.
Thomas B. Bryant, III, of Bryant, Fanning & Shuler, of
Orangeburg, for respondent.
BURNETT, A.J.: This Court granted certiorari to review the
Court of Appeals' opinion in Williams v. Williams, 329 S.C. 569, 496
S.E.2d 23 (Ct. App. 1998). We reverse and remand for a determination of
the value of petitioner's elective share.
Ralph Williams died on December 11, 1994. His will, dated
June 25, 1986, was admitted to probate and Respondent David Williams
(the PR) was appointed personal representative. Ralph Williams' widow,
petitioner, timely filed a petition for her elective share with the probate
court. Petitioner, through her attorney, mailed a copy of her elective
share claim to the PR's attorney, Thomas Bryant, III. By letter to
petitioner's attorney dated July 12, 1995, Bryant acknowledged receipt of
the petition, acknowledged delivering the letter attached to the petition to
the PR, and reported the PR's response.
The PR disputed petitioner's claim for elective share. The
probate court, concluding petitioner failed to strictly comply with S.C. Code
Ann. § 62-2-205(a) (Supp. 1998), disallowed petitioner's claim. The circuit
court and the Court of Appeals affirmed.
Did the Court of Appeals err in finding petitioner
failed to comply with the requirements set out in
S.C. Code Ann.§ 62-2-205(a) (Supp. 1998)?
The South Carolina Probate Code provides a procedure
whereby the surviving spouse of a person domiciled in this state may
claim an elective share of one-third of the decedent's probate estate.
Section 62-2-205(a) provides:
The surviving spouse may elect to take his elective share in
the probate estate by filing in the court and mailing or
delivering to the personal representative, if any, a petition for
the elective share within eight months after the date of death
or within six months after the probate of the decedent's will,
whichever limitation last expires.
The Court of Appeals held petitioner failed to strictly comply
with § 62-2-205 because she did not directly deliver the claim to the PR.
The court found strict compliance was required by Simpson v. Sanders,
314 S.C. 413, 445 S.E.2d 93 (1994).
In Simpson, the issue was whether the surviving spouse had
timely mailed the notice to the personal representative. The personal
representative admitted actual notice of the surviving spouse's intent to
claim his elective share; however, she claimed she never received a copy of
the petition. The probate court found actual notice of the claim was
sufficient and refused to decide if the surviving spouse actually mailed the
petition to the personal representative. This Court held because the
elective share provision is a statute of creation, the surviving spouse must
strictly comply with its requirements. The Court found actual notice of a
claim was not sufficient under the statute. Instead, the petition must be
mailed to the personal representative. Accordingly, the Court remanded
the case to probate court to determine if the surviving spouse complied
with the statute by mailing the petition to the personal representative.
The Court of Appeals reads Simpson too broadly. The issue in
Simpson was to whom the elective share petition should be mailed. The
meaning of the term "delivery" under § 62-2-205(a) was not an issue.1
Petitioner claims the statutory term "delivery" should be
construed to allow constructive delivery of an elective share claim to the
PR through his personal attorney.
In interpreting the statutory meaning of the phrase "delivering
to the personal representative," this Court's primary function is to
ascertain the intention of the legislature. Unless there is something in a
statute requiring a different interpretation, the words must be given their
Tollison, 320 S.C. 132, 463 S.E.2d 611 (Ct. App. 1995). Tollison interprets
the manner of delivery of a claim against the estate to the PR pursuant to
S.C. Code Ann.§ 62-3-804(l) (Supp. 1998). The language of this provision
is identical to § 62-2-205(a) in that both require mailing or delivering the
claim to the PR. In Tollison, the Court of Appeals, found the provision
was procedural and applied a liberal construction. The court held the
mailing of the claim to the PR, through his attorney, constituted proper
presentation of the claim. However, because this Court has held the
elective share statute is to be strictly construed, Tollison is not
ordinary meaning. Mullinax v. J.M. Brown Amusement Co., Inc., 326 S.C.
453, 485 S.E.2d 103 (Ct. App. 1997), aff'd, 333 S.C. 89, 508 S.E.2d 848
(1998). Where a statute is complete, plain, and unambiguous, legislative
intent must be determined from the language of the statute itself. The
Court should consider not merely the language of the particular clause
being construed, but the word and its meaning in conjunction with the
purpose of the whole statute and the policy of the law. Whitner v. State,
328 S.C. 1, 492 S.E.2d 777 (1997), cert. denied, _ U.S. _, 118 S.Ct.
1857, 140 L.Ed.2d 1104 (1998).
Delivery means "the act by which the res or substance thereof
is placed within the actual or constructive possession or control of
another." Black's Law Dictionary 498 (6th ed. 1990). Section 62-2-205(a)
does not state the delivery must be direct or that it must be accomplished
by service pursuant to Rules 4 & 5, SCRCP. Moreover, the ordinary
meaning of delivery does not dictate that the act be accomplished only by
means of personal service as defined by Rules 4 & 5, SCRCP. 2 If the
legislature had intended delivery of notice of the elective share claim be
served under the strictures of Rules 4 & 5, the legislature could have so
provided by using the words "personal service" or "service" as it did in
other -sections of the Probate Code.3 By using the term "delivery", the
legislature unambiguously expressed its intent that service is not required
and this Court should not read this requirement into the statute.
Accordingly, "delivery" is not the equivalent of "service" and delivery under
§62-2-205(a) may be accomplished without following Rules 4 & 5, SCRCP.
Further, the ordinary meaning of the language of the elective
share statute, when read in conjunction with the purpose of the statute
and the policy of the law, supports the conclusion that "delivery" should be
interpreted more expansively. The legislative purpose behind the elective
share statute is to protect the family unit from becoming society's ward by
preventing impoverishment of the surviving spouse. Berkebile v.
Rule 5, SCRCP, applies to service of the answer, other pleadings, motions
3 See S.C. Code Ann. § 62-3-1305 (1987) (regarding sale of real
estate); § 62-1-401 (1987) (regarding personal service in guardianship
311 S.C. 50, 55, 426 S.E.2d 760, 763 (1993); see also Mullinax, supra. The
purpose of requiring the surviving spouse to notify the PR is to notice the
estate of the claim. By applying an erroneous interpretation of "delivery,"
courts place a surviving spouse in an impaired economic position contrary
to the statute's purpose. Therefore, under § 62-2-205(a), delivery only
requires placing the petition in the actual or constructive possession or
control of the personal representative.
Petitioner claims the Court of Appeals failed to address
whether delivering the claim for an elective share to Bryant, as the PR's
personal attorney, satisfied the requirements of the statute.
Although the Court of Appeals did not expressly rule petitioner
failed to prove Bryant was the PR's personal attorney, this finding can be
inferred from the Court of Appeals' reference to Bryant as the attorney for
the estate. In our opinion, the Court-of Appeals erred in concluding
Bryant was only the attorney for the estate. In the July 12, 1996 letter,
Bryant acknowledged receipt of the petition for an elective share and
suggested he discussed the petition with his client, the PR, thereby
indicating the PR at least constructively controlled the petition. Moreover,
at oral argument before this Court, Bryant conceded the existence of an
attorney/client relationship between the PR and himself. The Court of
Appeals should have considered the effect of delivery of the elective share
claim to Bryant, as the PR's personal attorney.
This Court has consistently recognized an attorney is the
"alter-ego of his client and the attorney stands in the place of the client.
Anderson v. Anderson, 198 S.C. 412, 18 S.E.2d 9 (1941); see also Equilease
Corp. v. Weathers, 275 S.C. 478, 272 S.E.2d 789 (1980); Culbertson v.
Clemens, 322 S.C. 20, 471 S.E.2d 163 (1996). "Notice to an attorney is
effective as notice to the client when the notice is received in the course of
the transaction in which the attorney is acting." 7 Am.Jur.2d Attorneys at
Law § 148 (1997).
Bryant was the PR's personal attorney, and delivery of the
elective share claim to Bryant, as the "alter-ego of his client," was
to the PR under § 62-2-205(a).4
relationship between the attorney for the estate and the personal
REVERSED AND REMANDED.5
FINNEY, C.J., TOAL, MOORE, and WALLER, JJ., concur.
5 Because we decide delivery was effective when made to Bryant, as
the "alter-ego of the client," we decline to address petitioner's remaining