S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
American Heart
Association, South
Carolina Affiliate, Inc.,
and the American Cancer
Society, South Carolina
Division, Inc.,
County of Greenville, the
Honorable C. Diane
Smock, in her official
capacity as the Probate
Judge of Greenville
County, and the State of
South Carolina,
Appeal From Greenville County
Marc H. Westbrook, Judge
Opinion No. 24685
Heard February 6, 1997 - Filed September 2, 1997
AFFIRMED
D. Garrison Hill and Leo H. Hill, both of Hill Wyatt &
Bannister, L.L.P., of Greenville, for appellants.
County Attorney Judith S. Burk and Assistant County
Attorney Jeffrey D. Wile, both of Greenville, for
respondents County of Greenville, and the Honorable C.
Diane Smock.
Attorney General Charles Molony Condon, Deputy
Attorney General Treva Ashworth and Senior Assistant
Attorney General Kenneth P. Woodington, all of
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AMERICAN HEART ASSOCIATION, et al. v. COUNTY OF GREENVILLE, et al
Columbia, for respondent State of South Carolina.
H. Simmons Tate, Jr., of Sinkler & Boyd, P.A., of
Columbia and H. Bartholomew Cox, of Fort
Washington, Maryland, for amicus curiae petitioner The
Manuscript Society.
FINNEY, C.J.: Appellants commenced this action requesting a
declaration that the original will and signature of "Shoeless Joe" Jackson is an
asset of his estate and therefore, devised to his wife (Katie Jackson) and ultimately
to appellant charities.1 Appellants are seeking ownership and possession of the
tangible will. Additionally, appellants allege that respondents' claim of ownership
and possession constitute a taking of appellants' property without just
compensation. All parties moved for summary judgment on the basis that there
were no genuine issues of material fact and each side was entitled to judgment in
its favor as a matter of law. The court granted summary judgment in respondents'
favor and denied appellants' motion. Following a hearing, the circuit court declared
the original will is the property of Greenville County or alternatively, the State of
South Carolina. Appellants, the residual beneficiaries of Katie Jackson's estate
appeal the trial court's order.
Appellants contend the trial court erred in granting respondents'
summary judgment motion. Appellants assert a will is a person's personal property
since individuals may during their lifetime own, possess, use, enjoy, and dispose of
their will any way they see fit and upon death, the will becomes part of one's
estate passing directly to the personal representative. We disagree.
Summary judgement is appropriate when it is clear there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of
law. Kreutner v. David, 320 S.C. 283, 465 S.E.2d 88 (1995). The trial court ruled
that the Jackson will is a public record and must remain in the care, custody and
control of the Probate Court. The court held the original will constitutes a public
record pursuant to S. C. Code Ann. § 30-4-20(c) (1991). The circuit court concluded
that original wills, which are required by state law to be filed with the Probate
Court, constitute "public records."2 "Public record" under the Freedom of
Information Act includes all papers, or other documentary materials regardless of
physical form or characteristics prepared, owned, used, in the possession of, or
retained by a public body. § 30-4-20(c). The court determined that the probate
1Mr. Jackson's original signature is considered extremely rare and valuable.
2 S.C. Code Ann. § 62-2-901 (Supp. 1996) provides that persons having
possession, custody, or control of any last will and testament must deliver such
will to the probate court within thirty days of death.
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AMERICAN HEART ASSOCIATION, et al. v. COUNTY OF GREENVILLE, et al
code neither intends nor provides that the deliverer of a will, even if a devisee
under it, gain ownership in the actual document. Further, the circuit court
considered the records retention policy as ordered by this Court which provides for
the permanent retention of original documents from decedent estates.
We find Mrs. Jackson never owned the original will and therefore could
not pass ownership of the document to appellants. The trial court did not err in
concluding the will is a public record subject to retention by the county or State
and hence there was no unconstitutional taking of private property.
The trial court's judgment is
AFFIRMED.
TOAL, MOORE, WALLER and BURNETT, JJ., concur.
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