McDaniel v. Gregory

Finney, Justice: This is a dispute over whether the pre-probate code rules or the South Carolina Probate Code should apply to the construction of a will. The trial court held that the new probate code applies. We affirm. Laura Everette Holcombe (Holcombe) died testate on June 18,1986. Holcombe’s will devised and bequeathed the residue *501 of her estate to three maternal first cousins, Annie Bell McDaniel, Marion McDaniel and Robert Monroe McDaniel, “share and share alike in fee simple absolutely.” Marion McDaniel predeceased Holcombe and was survived neither by spouse nor issue. 1 Respondents Annie Bell McDaniel and Robert Monroe McDaniel commenced this action after July 1, 1987, pursuant to S.C. Code Ann. §§ 15-53-10 to 30 (1976), the Uniform Declaratory Judgments Act, requesting the court to construe Hol-combe’s will and determine the disposition to be made of the devise to which Marion McDaniel would have been entitled. Respondents argue five grounds upon which they allege entitlement to Marion McDaniel’s share. 1) Avoidance of intestacy; 2) compliance with the intent of the testatrix; 3) the class devise to decedent’s first cousins required that the surviving members of such class would acquire the share of any member who predeceased the testatrix; 4) the South Carolina Probate Code, S.C. Code Ann. § 62-2-604(b) (1987), prevents a lapse as to the one-third share which would have passed to Marion McDaniel, allowing her share to pass to the respondents; and 5) the testatrix received the devised real estate from her maternal kindred; therefore, equity would suggest that exclusive possession remain among decedent’s maternal kindred. Appellants, paternal cousins of the decedent, contend the pre-probate code rules should be applied, allowing the lapsed residuary gift to pass as intestate property. The trial court ruled that the lapsed share of Marion McDaniel passed to respondents by virtue of the South Carolina Probate Code, S.C. Code Ann. § 62-2-604(b) (1987). The South Carolina Probate Code became effective on July 1, 1987, subsequent to Holcombe’s death on June 18, 1986. This action was commenced after July 1, 1987. The central question on appeal is whether the South Carolina Probate Code may be applied to this case. Under the old probate rules, a lapsed residuary gift passes as intestate property if the devise was not a class gift and made to the residuary devises as tenants in common. See Coleman Karesh, On Wills (Columbia, S.C.: S.C. Law Publishers 1977) p. 81. Under the new probate code, if the residue is *502 devised to two or more persons and the share of one of the residuary devisees fails for any reason, his share passes to the other residuary devisee, or to the other residuary devisees in proportion to their interest in the residue. Section 62-2-604(b) (1986). Section 62-l-100(b)(5) (Supp. 1989) provides that July 1, 1987, is the effective date of the new probate code and that “any rule of construction . . . provided in this code applies to instruments executed . . . before the effective date unless there is a clear indication of a contrary intent.” We hold that § 62-2-604(b) is a rule of construction and the new probate code applies in this case. See White v. Wilbanks, — S.C. —, 393 S.E. (2d) 182 (1990). We discern no clear indication of an intent to dispose of the decedent’s property contrary to the disposition which would occur under the § 62-2-604(b) rule of construction, and find that the respondent is entitled to the lapsed share. For the foregoing reasons, the judgment of the trial court is affirmed. Affirmed. Gregory, C.J., and Harwell, Chandler and Toal, JJ., concur. Footnotes [1] Thus, S.C. Code § 62-2-603 (1987) anti-lapse statute does not apply.