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2004-UP-189 - Tyler v. Salley

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


Laura T. Tyler,        Appellant,

v.

Mary Gail T. Salley, Personal Representative of the Estate of Hal Barr Tyler,        Respondent.


Appeal From Richland County
G. Thomas Cooper, Jr., Circuit Court Judge


Unpublished Opinion No. 2004-UP-189
Submitted March 9, 2004 – Filed March 22, 2004


 

AFFIRMED


Jan L. Warner, of Columbia; for Appellant

Elizabeth Van Doren Gray and Laura W. Robinson, both of Columbia; for Respondent.

PER CURIAM:  Appellant Laura T. Tyler commenced this action by filing a Summons and Petition seeking, among other things, to have Respondent Mary Gail T. Salley removed as the personal representative for the estate of Hal Barr Tyler and to have a substitute personal representative appointed.  The trial court denied all requested relief. [1]

FACTS

On December 10, 1997, Hal Barr Tyler died of cancer.  Unable to locate her husband’s will, Laura Tyler hired an attorney and filed an intestate estate with the Probate Court for Richland County.  Hal’s will was eventually recovered, and in accordance with its terms, Hal’s sister Mary Gail T. Salley was appointed personal representative of the estate on January 26, 1998.

When Salley learned that she was the named personal representative, she hired Elaine H. Fowler, an attorney who practices in the area of probate administration, to represent and advise her in connection with the performance of her duties and responsibilities as personal representative.  According to the testimony offered at trial, Salley did not take any action as personal representative without express guidance and direction from Fowler.

Under the will, Salley was to receive a one-half interest in farmland located in Orangeburg, South Carolina; Hal’s inherited interest in certain personal property; the proceeds from a $51,000 life insurance policy; and a $50,000 specific bequest.  The residuary was left to Tyler and included SCANA stock, a duplex on Brennen Road, and other personal property. 

During his lifetime, Hal took out a loan against the proceeds of a $10,000.00 life insurance policy of which Salley was the beneficiary.  After receiving the remaining proceeds of the policy after Hal’s death, upon the advice of Fowler, Salley took out $4,214 from the estate.  This represented the difference between the initial policy amount and the reduced value of the policy.  When Fowler realized her advice was mistaken, she instructed Salley to reimburse the estate.  Salley then repaid the estate with interest.

On July 1, 1999, Tyler filed a Summons and Petition in the Probate Court, seeking to have Salley removed as personal representative and to have a substitute personal representative appointed.  She sought to disgorge all attorney’s fees paid to Fowler and all commissions paid to Salley.  The trial court denied Tyler’s requested relief.  This appeal follows.

STANDARD OF REVIEW

A request to remove a personal representative seeks affirmative relief that lies in equity.  Dean v. Kilgore, 313 S.C. 257, 437 S.E.2d 154 (Ct. App. 1993).  As such, we may make findings according to our own view of the preponderance of the evidence, though we need not disregard the findings of the trial judge who saw and heard the witnesses and was in a better position to judge their credibility.  In re Thames, 344 S.C. 564, 571, 544 S.E.2d 856, 857 (Ct. App. 2001).

LAW/ANALYSIS

Removal

Tyler contends that the trial court erred in not removing Salley as personal representative.  We disagree.

Although the appointment of a personal representative “is not lightly to be set aside,” the Probate Code provides that anyone “interested in the estate may petition for removal of a personal representative for cause at any time.”  See Witherspoon v. Watts, 18 S.C. 396, 422 (1883); S.C. Code Ann. § 62-3-611(a) (Supp. 2003). 

Cause for removal exists when removal would be in the best interests of the estate, or if it is shown that a personal representative or the person seeking his appointment intentionally misrepresented material facts in the proceedings leading to his appointment, or that the personal representative has disregarded an order of the court, has become incapable of discharging the duties of his office, or has mismanaged the estate or failed to perform any duty pertaining to the office.

S.C. Code Ann. § 62-3-611(b) (Supp. 2003). 

Tyler’s numerous complaints can be summarized into two general categorical allegations:  (1) Salley was late in performing her obligations; and (2) she engaged in self-dealing. 

In support of her contention that Salley was excessively dilatory in administering the estate, Tyler notes that Salley did not file the estate’s inventory until more than a year after it was initially due and did not file the Form 706 estate tax return until almost a year after the initial due date.  In both cases, however, Salley received deadline extensions from the relevant authority.  Moreover, evidence presented at trial indicates that Tyler at least shared the blame with Salley for any unnecessary delays.  Tyler and her counsel engaged Salley and Fowler in lengthy discussions concerning what property was to be included in the estate and how much it was worth, and Tyler’s indecisiveness on the elective share issue only acted to forestall finality.  In any event, the rather modest delays in this case have not so jeopardized the best interest of the estate as to warrant removing the personal representative.

We find Tyler’s allegations of self-dealing to be unfounded.  Although Salley did improperly remove $4,214 from the estate to repay a loan Hal had taken against a life insurance policy, she did so at the advice of the estate’s attorney.  When Salley realized there had been a mistake about the propriety of the transaction, she reimbursed the estate with interest.  Nonetheless, Tyler asserts that the absence of the funds from the estate caused a cash shortfall, precluding Salley from making necessary repairs to the duplex on Brennen Road and forcing her to sell the SCANA stocks for too low of a price. 

Contrary to Tyler’s contention, Salley did not fail to make necessary repairs to the Brennen Road duplex for want of estate funds.  Quite the opposite, at a cost of $3,500, [2] Salley arranged to have the roof of the duplex repaired to prevent damage from leakage.  The only repairs she forwent were those she deemed to be cosmetic in nature.  Indeed, even without the cosmetic repairs, tenants regularly occupied the duplex during the estate’s administration, thereby generating rental income for the estate.

We find most remarkable Tyler’s contention that Salley wasted estate assets by selling the SCANA stocks too early: 

Mrs. Salley also admitted that, because the estate needed money to pay its lawyers, she sold SCANA stock at $27.00 per share when, if she had made one phone call or kept up with this investment in the newspaper, she would have learned that had she waited six weeks, the stock could have been sold for $30.00 per share.

Though the role of personal representative comes with many responsibilities, stock market clairvoyance is certainly not one of them.  A personal representative does not waste estate assets when she fails to anticipate fluctuation in the value of securities.

We see no error committed by the trial judge, who after considering the testimony of Salley, Tyler, and the estate attorney, determined that Salley had not failed to perform any duty as personal representative, engaged in willful misconduct, or improperly disposed of estate assets.  Accordingly, we conclude the trial court did not err in refusing to remove Salley as personal representative.

Disgorgement

Tyler contends that the trial court erred in refusing to disgorge attorney’s fees paid to the attorney hired by Salley to assist her in her role as personal representative.  We disagree.

South Carolina law specifically authorizes and empowers personal representatives to hire attorneys, accountants, and advisors to perform or assist in the performance of the personal representative’s duties.  S.C. Code Ann. § 62-3-715(19) (1987).  The personal representative is likewise authorized to hire counsel when an estate brings or defends a lawsuit.  S.C. Code Ann. § 62-3-715(20) (1987).  Section 62-3-720 specifically makes the estate responsible for the resulting attorney’s fees:

If any personal representative or person nominated as personal representative defends or prosecutes any proceeding in good faith, whether successful or not, he is entitled to receive from the estate his necessary expenses and disbursements including reasonable attorneys’ fees incurred.

The attorney hired by Salley charged $150.00 per hour, and prior to the litigation commenced by Tyler, Salley had spent only $8,342.05 in attorney’s fees on a $200,000.00 estate.  We agree with the trial court’s determination that the fees paid by Salley were not excessive and find ample evidence in the record to support that finding. [3]

AFFIRMED.

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


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

[2] The Record on Appeal erroneously refers to $35,000.

[3]   We likewise dismiss Tyler’s claim that the trial court should have allowed her to recover fees paid to Salley as personal representative or against Salley’s beneficial interest.