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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

Probate Reform - Part 1: A      Historical Review

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
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
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
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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