Trusts & Estates – Wills – Asset Distribution – Executors’ Discretion – Standard of Review 

The testatrix’s will gave her personal representatives broad discretion in making distributions. Given such broad discretion, and despite the fact that the estate was unable to fulfill the testatrix’s specific bequest of $400,000 in cash to her respondent-stepdaughter, the personal representatives could divide the estate’s residue such that they received the only income-producing property while they split ownership with their half-sister of the estate’s unimproved lots. 

We reverse the Court of Appeals’ decision, which upheld lower courts’ determinations that the personal representatives had breached their fiduciary duty. 

The will in this case needs no construction because its meaning is clear. The dispute is over the personal representatives’ distribution of specific residuary property, and respondent has argued that “principles of equity control.” Accordingly, the standard of review is de novo. 

Section 10.6 of the will gave the personal representatives the power to make distributions “without the consent of any beneficiary . . . in cash or in specific property, real or persona., or an undivided interest, or partly in cash and partly in such property, . . . without making pro-rata distributions of specific assets.” 

There is nothing in the will nor in our jurisprudence that states these broad powers are limited to specific bequests. Nevertheless, the probate court held § 10.6 governed only the distribution of specific assets, and did not apply to the residuary estate. This conclusion is exactly backwards. 

The personal representatives were bound to carry out the specific bequests in the will and, despite the broad grant of authority in § 10.6, they had no discretion to alter them. Rather than not applying to the distribution of the residuary estate, it is clear this is precisely where those broad powers could be exercised. This error of law by the probate court, affirmed by the circuit court and the Court of Appeals, negated the intent of the testatrix to afford broad authority to the personal representatives and infected the entire proceedings. 

Instead of elevating the provisions of the residuary clause over § 10.6, the two sections of the will should be harmonized. When that is done, it is clear the personal representatives had the power to distribute the residuary estate, without the consent of any beneficiary, and without making pro-rata distributions of specific assets. This is precisely what they did, and absent a breach of fiduciary duty, their proposed distribution should be upheld. The burden was on respondent to show that the proposed distribution was unfair or inequitable, which she did not do and likely could not do in light of her stipulation that the proposed distribution was of equal monetary value. 

We also cannot accept the argument that sentimental value and other intangibles should be permitted to defeat the proposed distribution because this would place an untenable burden on personal representatives and provide an unworkable framework going forward. Moreover, even if it were proper to consider the sentimental value and “other intangibles” urged by respondent, it is difficult to see how such an analysis would benefit respondent, who was an adult when the prized Lake Summit property was even acquired. Petitioners, on the other hand, grew up spending summers at Lake Summit. 

Reversed and remanded. 

Dissent 

(Kittredge, J.) We are presented with a factual finding—breach of fiduciary duty—in an action at law. As such, we are constrained by the “any evidence” standard of review. 

I would agree with the circuit court (and the Court of Appeals) that evidence in the record supports the probate court’s finding of breach of fiduciary duty. 

Anyone acting in a fiduciary relationship shall not be permitted to make use of that relationship to benefit his own personal interests. 

While the proposed distribution is stipulated to be of equal monetary value, counsel for petitioners summarily rejected a suggestion that petitioners flip the proposed division and allow respondent to receive outright the Lake Summit property. 

The rental income from the Lake Summit property more than covers all expenses associated with the property. The unimproved Bailey’s Island and Paradise Island properties produce no income and have upkeep expenses that exceed $25,000 annually. 

Based on petitioners’ distribution scheme, respondent—who did not receive her $400,000 bequest—is responsible for the lion’s share of those expenses. Moreover, while petitioners awarded themselves a property outright (the Lake Summit property), they did not reciprocate and similarly award respondent any property outright. Petitioners ensured themselves an ownership interest in all the properties. Under these facts and circumstances, I have no hesitation in finding evidence to support the breach of fiduciary duty finding and affirming the Court of Appeals on this issue.  

Bennett v. Estate of King (Lawyers Weekly No. 010-022-22, 19 pp.) (Kaye Hearn, J.) (John Kittredge, J., concurring in part & dissenting in part) Appealed from Charleston County Probate Court (Tamara Curry, J.) On writ of certiorari to the Court of Appeals. Daniel Scott Slotchiver, Stephen Michael Slotchiver and Andrew Joseph McCumber for petitioners; George McElveen for respondents. S.C. S. Ct.