GRANT v. OSGOOD

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Docket Number

17960

Attorney(S)

Messrs. Hagood, Rivers Young and Sinkler, Gibbs Simons, of Charleston, for Appellant, cite: As to failure to use available witness giving rise to presumption that the testimony would be adverse: 213 S.C. 578, 50 S.E.2d 698. As to probate Court having the power to refuse the qualification of an Executor when such Executor is clearly unfit to perform the duties of the office: 20 S.C. 144; 2 S.C.L. Q. 38; Harp. Eq. 224; 18 S.C. 396; 31 S.C. 183, 9 S.E. 797; 115 S.C. 145, 105 S.E. 275; 312 Ky. 508, 228 S.W.2d 437, 18 A.L.R.2d 629; 69 S.C. 43, 48 S.E. 40; 206 S.C. 300, 34 S.E.2d 49; 213 S.C. 199, 48 S.E.2d 814; 83 S.C. 124, 65 S.E. 207; 148 Mass. 247, 19 N.E. 370; 47 Utah 62, 141 P. 537; (Neb.) 18 N.W.2d 228; 18 A.L.R.2d 633; Woerner, American Law of Administration, Sec. 269. Messrs. Jacobson Rosenblum and Jack White, of Charleston, for Respondent, cite: As to the Probate Court not having authority to refuse to qualify an executor, named in the will, who meets the statutory qualifications: Note 6, 2 S.C.L.Q. 17; 111 S.C. 205, 97 S.E. 58; 10 S.C. 82; 2 S.C.L.Q. 21; 2 S.C.L.Q. 37, Note 47; 31 Am. Jur. 4; 95 A.L.R. 828; 8 Crench. 9, 3 L.Ed. 471; 20 S.C. 144; 23 Ga. 521; 3 N.J. Eq. 611; 2 S.C.L.Q. 13.

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Smart Summary

Factual and Procedural Background

Laird Branch Osgood died July 8, 1961, leaving a will (dated August 15, 1947; republished June 28, 1951) that provided life interests to her two children, Austin B. Osgood (respondent) and Frances Osgood Grant (appellant), with remainder to grandchildren (minors). Both children were named co-executors and testamentary trustees.

The appellant filed the will for probate on July 11, 1961, and simultaneously filed a caveat and petition asking the Charleston County Probate Court to deny qualification of the respondent as fiduciary on the ground he was not fit. The respondent filed a return denying the allegations and moved to dismiss, asserting lack of jurisdiction by the Probate Court to determine his qualifications and related grounds.

On July 26, 1961, the Probate Judge overruled the jurisdictional objections, heard testimony, and held the respondent not qualified to assume fiduciary duties; the appellant qualified as executrix and the will was admitted to probate in common form. The respondent appealed; on December 22, 1961 the Court of Common Pleas reversed and directed issuance of Letters Testamentary to the respondent. The appellant appealed to the Supreme Court of South Carolina.

Legal Issues Presented

Whether the Probate Court has the authority to refuse to qualify as executor a person named in a will who meets the statutory qualifications (age 21 and not a lunatic or idiot) on the ground that he is otherwise unfit to serve as fiduciary.

Arguments of the Parties

Appellant's Position

The appellant filed the will for probate and a caveat and petition to prevent the respondent from qualifying as fiduciary on the ground he was not a fit, proper, or suitable person to serve as executor/trustee.
The appellant proposed to include in the appellate statement a post-decision fact (a December 29, 1961 notice by respondent requiring proof in solemn form claiming an interest to invalidate the will) as relevant to the appeal; the trial judge excluded that matter and the Supreme Court found exclusion erroneous.

Respondent's Position

The respondent denied the material allegations of the petition and caveat and asserted the Probate Court lacked jurisdiction to determine his qualifications as fiduciary.
He filed a motion to dismiss on three stated grounds: (a) the Probate Court had no jurisdiction to issue the rule or make any determination upon it; (b) if the Probate Court had jurisdiction, it was limited to determining who was named as executor in the will; and (c) because the petition alleged that Austin B. Osgood was named in the will, there was no question before the court on that point.
After the Probate Court decision and the appeal, the respondent filed a notice (Dec. 29, 1961) in the Probate Court requiring proof in solemn form of the will, alleging that he, as an individual and heir, was interested to invalidate the will — a fact the trial judge excluded from the appellate statement but which the Supreme Court held should have been included.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court identified the central question—whether a Probate Court may refuse to qualify an executor named in a will who meets statutory formal qualifications because he is otherwise unfit—and then concluded that resolution of that question was rendered speculative, if not moot, by the respondent's own actions.

The Court first applied well-settled principles refusing to decide moot or speculative questions, citing Berry v. Zahler and other South Carolina authority. It then examined the statutory oath (Section 19-432) required of an executor, which obligates the qualifier to swear that the instrument is the true last will so far as he knows or believes and to execute it faithfully.

From this oath and precedent (Beacham v. Ross), the Court reasoned it is inconsistent for a person to accept appointment as executor (and take the oath) while simultaneously attacking the very instrument creating the trust. The Court further quoted 33 C.J.S. (Executors and Administrators §29) to support the proposition that renunciation can be implied from circumstances and that a party opposing probate may be treated as having renounced the executorship.

The Court cited out-of-state decisions (Briggs v. Probate Court of Westerly and Schwartz v. Schwartz) that held filing a caveat or otherwise contesting probate is equivalent to renunciation where co-executors take opposing positions. Although acknowledging authority allowing retraction of a renunciation in some jurisdictions, the Court observed no issue of retraction was before it and declined to decide such a question without appropriate record.

The Court's practical holding from this analysis was that an executor cannot properly qualify while actually contesting the instrument that creates the trust; therefore, the respondent's contest made the order of the circuit judge directing the Probate Court to qualify him inoperative in the present posture. Because the question whether the Probate Court may refuse to qualify remains speculative, the Court declined to decide it and remanded with leave to relitigate if the issue later becomes concrete.

The Court also concluded the circuit judge erred in refusing to include the post-decision notice (filed Dec. 29, 1961) in the statement of the case on appeal; the Supreme Court held that fact was properly includable and relevant to understanding and disposition of the question.

Holding and Implications

REVERSED AND REMANDED

Holding: The Supreme Court reversed the Court of Common Pleas' order settling the case on appeal and remanded the cause for further proceedings consistent with the Court's views. The Court left undecided the substantive issue whether a Probate Court may refuse to qualify an executor named in a will who meets statutory qualifications but is alleged to be otherwise unfit, because that issue was rendered speculative by the respondent's contest of the will.

Implications: The direct effect is reversal of the circuit court's order and remand for further proceedings; the parties are given leave to relitigate the previously raised qualification issue should it cease to be speculative or moot. The opinion does not resolve the larger question of a probate court's authority to refuse qualification on fitness grounds and thus does not establish a new controlling precedent on that substantive point.

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Ex parte Frances Osgood GRANT, as Executrix and Trustee named in the Will,and as beneficiary under said Will, Appellant, v. Austin B. OSGOOD,Respondent. IN RE ESTATE and Last Will and Testament of Laird BranchOSGOOD.

September 4, 1962.

BUSSEY, Justice.

Laird Branch Osgood, a resident of Charleston County, South Carolina, died July 8, 1961, aged eighty-four, leaving a will dated August 15, 1947, and republished June 28, 1951. In effect, this will left a life interest in her estate to her two children, Austin B. Osgood and Frances Osgood Grant, the parties to this action, with the remainder to certain grandchildren, now minors. She appointed her son and her daughter Executor and Executrix and Testamentary Trustees.

The testatrix's daughter, the appellant, Frances Osgood Grant, filed the will for probate in Charleston County on July 11, 1961. She also filed in the Charleston County Probate Court a caveat and petition for the issuance of a rule to show cause against her brother, Austin B. Osgood, why the Probate Court should not deny him qualification as fiduciary under his mother's will on the ground that he was not a fit, proper or suitable person to serve in that capacity. The caveat and petition and rule to show cause were served upon the respondent, Austin B. Osgood, July 13, 1961.

The respondent, reserving all rights to determine the validity of the will by Laird Branch Osgood, filed a return to the rule denying the material allegations of the petition and caveat, and also asserting lack of jurisdiction on the part of the probate court to determine his qualifications as fiduciary. At the same time he filed a motion for dismissal of the rule on the grounds:

"(a) That the Probate Court had no jurisdiction to issue the rule or make any determination upon it, and

"(b) That, if the Probate Court does have jurisdiction, the same is limited to a determination as to who was named as Executor in the Will, and

"(c) Since the petition alleged that Austin B. Osgood was named in the Will there was no question before the court in this regard."

The matter was heard by Honorable Gus H. Pearlman, Judge of Probate of Charleston County, on July 21, 1961, and the court by its order dated July 26, 1961, overruled the respondent's jurisdictional objections, and after taking considerable testimony as to whether respondent was a fit and proper person to be entrusted with fiduciary duties, held that the respondent was not qualified to assume fiduciary duties under the Last Will and Testament of his mother. The appellant qualified as executrix, and the will of Laird Branch Osgood was admitted to probate in common form.

The matter was duly appealed to the Court of Common Pleas and, by order dated December 22, 1961, Honorable James Hugh McFaddin, Presiding Judge of the Ninth Judicial Circuit, reversed the order of the Probate Judge and directed that Letters Testamentary be issued to Austin B. Osgood as provided in the will.

This appeal followed in due course.

The appellant proposed to include in the statement of the case the following:

"On December 29, 1961, Austin B. Osgood filed in the Probate Court for Charleston County and served upon respondent a Notice that he would require, pursuant to Section 19-255 of the South Carolina Code of Laws of 1952, as amended, proof in solemn form of the Will of Laird Branch Osgood reciting that the said Austin B. Osgood `as an individual and heir of the decedent is interested to invalidate such alleged will.'"

The trial judge, in an order settling the case, refused to allow the inclusion of the forgoing, which order has also been appealed from. In this, we think the circuit judge was in error.

The quoted language was, in our opinion, properly includable in the statement even though it referred to a fact occurring after the decision of the case. It threw light upon the only question involved in the principal appeal and is necessary to a proper understanding and disposition of that question. Supreme Court Rule 4, Section 3.

The only real issue presented by the principal appeal is whether the Probate Court of Charleston County has the power or authority to refuse to qualify an executor, named in a will, who meets the statutory qualification of being twenty-one years of age and is neither a lunatic nor an idiot, on the ground that he is otherwise unfit to be entrusted with fiduciary duties.

Under the circumstances of this case, and for the reasons hereinafter set forth, we think the action of the respondent has rendered this issue at least speculative, if not moot, at the present time.

It is well settled that this court will not concern itself with either moot or speculative questions, or decide by anticipation questions which may hereafter arise. Berry v. Zahler, 220 S.C. 86, 66 S.E.2d 459; Clark v. Wright, 24 S.C. 526; State v. Gathers, 15 S.C. 370.

Section 19-432 of the Code requires a party upon qualifying as an executor to take an oath, a part of which is as follows:

"I do solemnly swear that this writing contains the true last will of the within named AB, deceased, so far I know or believe and that I will well and truly execute the same."

An executor designated in a will is not required to qualify if he does not wish to do so, but if he accepts the trust, he is required to execute it in accordance with law. Beacham v. Ross, 190 S.C. 219, 2 S.E.2d 690. It is inconceivable that one should be allowed to accept a trust, take a solemn oath to execute the same, and in the same breath and at the same time, attack the instrument, which created the trust, as being invalid.

With respect to the renunciation of an executorship or trusteeship, the following quotation from 33 C.J.S., Executors and Administrators, § 29, p. 919, is applicable:

`Except as the rule may be altered by statutes to the contrary, no particular form of renunciation is required, and without an express declaration to that effect one's renunciation may be implied from the circumstances, and on such a showing the court may commit the trust to others."

Although, as shown in the footnotes to the foregoing section, there is some authority to the contrary, the better reasoned cases from other jurisdictions support the proposition that filing a caveat or otherwise opposing the probate of a will is equivalent to a renunciation. Briggs v. Probate Court of Westerly (1901), 23 R.I. 125, 50 A. 335; Schwartz v. Schwartz (1945), 67 Cal.App.2d 512, 155 P.2d 76.

In each of the cited cases, just as in the instant case, there were co-executors with one executor accepting the trust and proposing the will for probate, and the other co-executor contesting and opposing said will.

There is some authority from other jurisdictions to the effect that under some circumstances an executor may retract a renunciation. No such issue is now before us, nor would we be justified, on the record before us, in holding that the respondent has completely or finally renounced any right to qualify as executor and/or trustee.

We do hold, however, that an executor cannot properly qualify so long as he is actually contesting the instrument which creates the trust he proposes to accept. It would be a mockery to allow respondent to qualify as executor and trustee while occupying the status of an opponent of the will. Should the respondent be successful in his contest of the will, the primary issue involved in the appeal would, of course, become unqualifiedly and permanently moot.

It follows that the respondent, by his action, has rendered the order of the circuit judge, directing the Probate Court to qualify him as executor, inoperative and ineffective in the present state of the record. Consequently, it is, to say the least, speculative as to whether any judgment on the part of this court at the present time, either affirming or reversing the circuit judge in this particular, could ever be finally effective or operative.

We, therefore, leave undecided the issue raised by the appeal from the order of the circuit judge reversing the Probate court and remand the cause with leave to each of the parties to relitigate that issue should such issue, perchance, become no longer speculative or moot.

The order of the circuit court settling the case on appeal is, for the reasons set forth above, reversed, and the cause is remanded for further proceedings, consistent with the views herein expressed, which the respective parties may deem advisable.

Reversed and remanded.

TAYLOR, C.J., and MOSS, LEWIS and BRAILSFORD, JJ., concur.