Shearouse Adv. Sh. No.22
S.E. 2d


In The Supreme Court

Esther C. Williams, Petitioner,


David G. Williams, as

Personal Representative

of the Estate of Ralph

Howard Williams, Respondent.



Appeal From Barnwell County

Costa M. Pleicones, Judge

Opinion No. 24958

Heard May 27, 1999 - Filed June 28, 1999


E.T. Moore, Jr., of Barnwell, for petitioner.

Thomas B. Bryant, III, of Bryant, Fanning & Shuler, of

Orangeburg, for respondent.

BURNETT, A.J.: This Court granted certiorari to review the

Court of Appeals' opinion in Williams v. Williams, 329 S.C. 569, 496

S.E.2d 23 (Ct. App. 1998). We reverse and remand for a determination of

the value of petitioner's elective share.




Ralph Williams died on December 11, 1994. His will, dated

June 25, 1986, was admitted to probate and Respondent David Williams

(the PR) was appointed personal representative. Ralph Williams' widow,

petitioner, timely filed a petition for her elective share with the probate

court. Petitioner, through her attorney, mailed a copy of her elective

share claim to the PR's attorney, Thomas Bryant, III. By letter to

petitioner's attorney dated July 12, 1995, Bryant acknowledged receipt of

the petition, acknowledged delivering the letter attached to the petition to

the PR, and reported the PR's response.

The PR disputed petitioner's claim for elective share. The

probate court, concluding petitioner failed to strictly comply with S.C. Code

Ann. 62-2-205(a) (Supp. 1998), disallowed petitioner's claim. The circuit

court and the Court of Appeals affirmed.


Did the Court of Appeals err in finding petitioner

failed to comply with the requirements set out in

S.C. Code Ann. 62-2-205(a) (Supp. 1998)?


The South Carolina Probate Code provides a procedure

whereby the surviving spouse of a person domiciled in this state may

claim an elective share of one-third of the decedent's probate estate.

Section 62-2-205(a) provides:

The surviving spouse may elect to take his elective share in

the probate estate by filing in the court and mailing or

delivering to the personal representative, if any, a petition for

the elective share within eight months after the date of death

or within six months after the probate of the decedent's will,

whichever limitation last expires.

(emphasis added).

The Court of Appeals held petitioner failed to strictly comply

with 62-2-205 because she did not directly deliver the claim to the PR.



The court found strict compliance was required by Simpson v. Sanders,

314 S.C. 413, 445 S.E.2d 93 (1994).

In Simpson, the issue was whether the surviving spouse had

timely mailed the notice to the personal representative. The personal

representative admitted actual notice of the surviving spouse's intent to

claim his elective share; however, she claimed she never received a copy of

the petition. The probate court found actual notice of the claim was

sufficient and refused to decide if the surviving spouse actually mailed the

petition to the personal representative. This Court held because the

elective share provision is a statute of creation, the surviving spouse must

strictly comply with its requirements. The Court found actual notice of a

claim was not sufficient under the statute. Instead, the petition must be

mailed to the personal representative. Accordingly, the Court remanded

the case to probate court to determine if the surviving spouse complied

with the statute by mailing the petition to the personal representative.

The Court of Appeals reads Simpson too broadly. The issue in

Simpson was to whom the elective share petition should be mailed. The

meaning of the term "delivery" under 62-2-205(a) was not an issue.1

Petitioner claims the statutory term "delivery" should be

construed to allow constructive delivery of an elective share claim to the

PR through his personal attorney.

In interpreting the statutory meaning of the phrase "delivering

to the personal representative," this Court's primary function is to

ascertain the intention of the legislature. Unless there is something in a

statute requiring a different interpretation, the words must be given their

1 Petitioner attempts to analogize this case with In re Estate of

Tollison, 320 S.C. 132, 463 S.E.2d 611 (Ct. App. 1995). Tollison interprets

the manner of delivery of a claim against the estate to the PR pursuant to

S.C. Code Ann. 62-3-804(l) (Supp. 1998). The language of this provision

is identical to 62-2-205(a) in that both require mailing or delivering the

claim to the PR. In Tollison, the Court of Appeals, found the provision

was procedural and applied a liberal construction. The court held the

mailing of the claim to the PR, through his attorney, constituted proper

presentation of the claim. However, because this Court has held the

elective share statute is to be strictly construed, Tollison is not applicable.



ordinary meaning. Mullinax v. J.M. Brown Amusement Co., Inc., 326 S.C.

453, 485 S.E.2d 103 (Ct. App. 1997), aff'd, 333 S.C. 89, 508 S.E.2d 848

(1998). Where a statute is complete, plain, and unambiguous, legislative

intent must be determined from the language of the statute itself. The

Court should consider not merely the language of the particular clause

being construed, but the word and its meaning in conjunction with the

purpose of the whole statute and the policy of the law. Whitner v. State,

328 S.C. 1, 492 S.E.2d 777 (1997), cert. denied, _ U.S. _, 118 S.Ct.

1857, 140 L.Ed.2d 1104 (1998).

Delivery means "the act by which the res or substance thereof

is placed within the actual or constructive possession or control of

another." Black's Law Dictionary 498 (6th ed. 1990). Section 62-2-205(a)

does not state the delivery must be direct or that it must be accomplished

by service pursuant to Rules 4 & 5, SCRCP. Moreover, the ordinary

meaning of delivery does not dictate that the act be accomplished only by

means of personal service as defined by Rules 4 & 5, SCRCP. 2 If the

legislature had intended delivery of notice of the elective share claim be

served under the strictures of Rules 4 & 5, the legislature could have so

provided by using the words "personal service" or "service" as it did in

other -sections of the Probate Code.3 By using the term "delivery", the

legislature unambiguously expressed its intent that service is not required

and this Court should not read this requirement into the statute.

Accordingly, "delivery" is not the equivalent of "service" and delivery under

62-2-205(a) may be accomplished without following Rules 4 & 5, SCRCP.

Further, the ordinary meaning of the language of the elective

share statute, when read in conjunction with the purpose of the statute

and the policy of the law, supports the conclusion that "delivery" should be

interpreted more expansively. The legislative purpose behind the elective

share statute is to protect the family unit from becoming society's ward by

preventing impoverishment of the surviving spouse. Berkebile v. Outen,

2 Rule 4, SCRCP, applies to service of the complaint and summons.

Rule 5, SCRCP, applies to service of the answer, other pleadings, motions

and orders.

3 See S.C. Code Ann. 62-3-1305 (1987) (regarding sale of real

estate); 62-1-401 (1987) (regarding personal service in guardianship




311 S.C. 50, 55, 426 S.E.2d 760, 763 (1993); see also Mullinax, supra. The

purpose of requiring the surviving spouse to notify the PR is to notice the

estate of the claim. By applying an erroneous interpretation of "delivery,"

courts place a surviving spouse in an impaired economic position contrary

to the statute's purpose. Therefore, under 62-2-205(a), delivery only

requires placing the petition in the actual or constructive possession or

control of the personal representative.

Petitioner claims the Court of Appeals failed to address

whether delivering the claim for an elective share to Bryant, as the PR's

personal attorney, satisfied the requirements of the statute.

Although the Court of Appeals did not expressly rule petitioner

failed to prove Bryant was the PR's personal attorney, this finding can be

inferred from the Court of Appeals' reference to Bryant as the attorney for

the estate. In our opinion, the Court-of Appeals erred in concluding

Bryant was only the attorney for the estate. In the July 12, 1996 letter,

Bryant acknowledged receipt of the petition for an elective share and

suggested he discussed the petition with his client, the PR, thereby

indicating the PR at least constructively controlled the petition. Moreover,

at oral argument before this Court, Bryant conceded the existence of an

attorney/client relationship between the PR and himself. The Court of

Appeals should have considered the effect of delivery of the elective share

claim to Bryant, as the PR's personal attorney.

This Court has consistently recognized an attorney is the

"alter-ego of his client and the attorney stands in the place of the client.

Anderson v. Anderson, 198 S.C. 412, 18 S.E.2d 9 (1941); see also Equilease

Corp. v. Weathers, 275 S.C. 478, 272 S.E.2d 789 (1980); Culbertson v.

Clemens, 322 S.C. 20, 471 S.E.2d 163 (1996). "Notice to an attorney is

effective as notice to the client when the notice is received in the course of

the transaction in which the attorney is acting." 7 Am.Jur.2d Attorneys at

Law 148 (1997).

Bryant was the PR's personal attorney, and delivery of the

elective share claim to Bryant, as the "alter-ego of his client," was delivery

to the PR under 62-2-205(a).4

4 We leave for another time the question whether the attorney/client

relationship between the attorney for the estate and the personal




FINNEY, C.J., TOAL, MOORE, and WALLER, JJ., concur.

representative is sufficient to trigger the "alter-ego" theory of delivery.

5 Because we decide delivery was effective when made to Bryant, as

the "alter-ego of the client," we decline to address petitioner's remaining