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15 Transcript 1 (1970-1971)

handle is hein.barjournals/tscb0015 and id is 1 raw text is: VOLUME 15, NO. 1 A News Publication of The South Carolina Bar Association SEPTEMBER 1970 Probate Reform - Part 1: A Historical Review A. RAY HINNANT* Probate reform in South Carolina, as well as in the other states, has in recent years been widely advocated and has al- ready taken place in some states. In South Carolina, several years ago, tile Judicial Council commissioned former Jus- tice Lionel Legge to prepare a revision of the Probate Code. About the same tine, Justie Legge concluded his work, Dacy's book, How to Avoid Probate, with all of its adverse publicity as well as other publi- cations highly critical of the Probate system caused the American Bar Association to speed tip the revision of the Uniform Pro- bate Code. The final draft of the Uniform Probate Court was approved by the National Conference of Commissioners on Uniform State Laws in August 1969. This draft is now ready for presentation to the various states. The judiciary committee of the House of Representatives of South Carolina, upon receiving Justice Legge's revision, decided to await the Uniform Probate Code and determine at that time what action to :ake. In all probability, the Uniform Coue will be presented to the General Assembly in 1971. Anticipating the consideration of a change in the Probate Code, it might be wtd to review the history of the system as it has come down through the years. Under the English law, well into the nineteenth century, land passed from the decedent to the person entitled without either the necessity or the possibility of any process in the nature of administration. Whether claiming as heir, or after 1540 as devisee, one made out his title in an ordi- nary action in the common law courts; if lie claimed as devisee, he had to establish due execution of the will in the action. There was no probate or other in-rei proceeding whereby the validity of the will could be determined conclusively. Originally the heir was liable generally for the ancestor's debts. By 1300, it was established that the heir, while answerable out of the inherited land for specialty debts which expressly bound the heir, was not liable on the ancestor's other obligations; nor was the land subject to these debts. After 1540, devisors often charged their land with payment of debts, and equity en- tertained creditors' bills to enforce the trust. In 1691, the Statute of Fraudulent Devises gave specialty creditors the same remedy against devisees which was formerly had against heirs, and also made heirs and devisees, who alienated the land, personally liable to the extent of the value of the land. By statute in lhV7, the land of traders could be reached in equity for the payment of simple debts, and in 1833 this was extended to land of all decedents. Thus matters with reference to land stood at the time of the Court of Probate of 1857. The devolution of personalty is tied in with the rise and fall of testamentary juris- diction of the ecclesiastical courts. In addi- tion to deciding disputes of a religious nature, these tribunals had certain temporal jurisdiction. From a very early date, one could bequeath at least part of his tangible goods, and the church ordinarily saw to it that lie did so, and left part thereof to pious uses. Originally, the executor was merely the person named by the testator to see that legacies were paid. Starting with the claim to supervise the application of legacies devoted to pious uses, :he church courts gradually assumed jurisdiction to probate testaments and to require executors to carry out the provisions thereof. Initially, the ecclesiastical courts had nothing to do with the land, nor with the heir. Their eyes were turned to control over the personalty, and consequently they stressed the executor's function. Their jurisdiction was strengthened during the latter part of the thirteenth cen- tury when the common law courts recog- nized probate of the testament by treating the executor as virtually the owner of the tangible chattels, subject of course to the payment of the testator's obligations, and by entertaining actions by and against him upon claims owing to and by the, testator. As a result, the executor became, in the full sense, the personal representative of the deceased, and the ecclesiastical courts exercised general control over the executor. There were executors long before the administrator came into existence. Intestacy as to chattels in Norman times would be apt to occur only when the decedent died suddenly. Upon the ground that such a person probably would have died uncon- fessed, the ordinary (the judge of a regular ecclesiastical tribunal, usually a bishop) un- dertook to distribute the chattels for the good of the intestate's sotil. A statute in 1285 declared that the ordinary must pay the debts of the intestate just as the executor was obliged to pay his tes ator's debts. Another statute in 1357 con manded the ordinary to commit administration of the intestate's goods to his next and most lawful friends, thus establishing the administrator as the personal representative of the intes- tate, just as the executor was of his testator. For almost two centuries after this, the ecclesiastical courts enjoyed almost exclu- sive jurisdiction over matters relating to the succession to personalty. During this peri- od they probated testaments, granted le.ters of administration in cases of intestacy, re- quired executors and administrators to file inventories and accounts, and compelled payment of legacies and distributive shares. The ecclesiastical courts lacked only the power to enforce claims owing by or to the decedent. This was within the exclusive jurisdiction of the common law courts. The secular courts looked on this testa- mentary jurisdiction with jealous eyes, but it was not until after the Reformation (cir. 1532) that they commenced to curtail ma- terially the church court's jurisdiction. The next t ,o centuries constituted a period dur- ing which much of the testamentary juris- diction was gradually lost by the church courts. First, the common law courts pre- vented the church courts from inquiring into the truth of inventories or from exam- ining personal representatives' accounts. Then, the Court of Chancery commenced to entertain bills by legatees and next of kin to require the representative to account for, and pay, legacies and distributive shares. Furthermore, Chancery frequently enjoined the ecclesiastical courts from acting with reference to these matters. Chancery also obtained jurisdiction concurrent with the common law courts to enforce payment of decedent's debts by entertaining creditors bills upon the ground that an accounting was necessary to determine whether there were sufficient funds by encouraging cred- itors, legatees, distributees, and personal rep- resentatives to bring suits for themselves and all others interested, and then giving notice to all persons to present their claims. Chan- cery also obtained general jurisdiction to administer estates and protected this juris- diction by enjoining the prosecution of actions at law which interfered with the administration. The Statute of Distribution, 1670, at- tempted to preserve the administration juris- (Continued on Page 2, Col. 1) * The tonorable A. Ray ltlnnant is judge of the Richland County Probate Court.

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