In The Court of Appeals

Jane Cassie McKown Heavener,        Appellant,


Marshall E. Walker, Jr., as Personal Representative of the Estate of William Wesley McKown, and all other persons unknown, claiming any right, title, estate, interest in or lien upon the real estate described in the Complaint herein, Defendants,

Of Whom, Marshall E. Walker, Jr., as Personal Representative of the Estate of William Wesley McKown, is        Respondent.

Appeal From Chester County
Robert K. Folks, Special Referee

Unpublished Opinion No. 2003-UP-376
Heard April 10, 2003 – Filed June 3, 2003


B. Michael Brackett, of Columbia, for Appellant.

William C. Tindal, of Lancaster, for Respondent.

PER CURIAM:  In this action to quiet title, Jane Heavener sued her father’s estate asking the special referee to declare her to be the owner of two parcels of property.  The referee found for the estate and Heavener appeals.  We affirm.


Jane Heavener brought this action to quiet title and to have a copy of a deed declared valid and recordable.  The deed purported to convey to her two pieces of real property from her deceased father, William Wesley McKown.  The two pieces of property were known as the “Craig House” and the “old Durham Store Building” and were more fully described in deeds to Heavener’s father recorded in the Chester County Courthouse.  The purported deed in this case reads:

July 21st 1995

In this irrevocable living trust I deed the property bought from Ron & Sam Bell known as the “Craig House,” & the old Durham Store Bldg.― (illegible word) property, to my daughter, Jane Heavener, now & forever – deeds on property at Chester courthouse, Book 620 – Page 341 & Book 525- Page 343- tax maps will designate #206-1-9-8 & #206-1-2-11 ― 

s/ William Wesley McKown

McKown’s estate contested the authenticity of the deed or in the alternative asked for reimbursement of expenses paid by the estate if the properties were found to belong to Heavener.  The case was referred to a special referee, granting him authority to enter final judgment. 

During trial, Rhonda Sullivan testified she signed as a witness on the deed and witnessed McKown sign the deed on the kitchen table at the Craig House.  Ronald Bell testified that, although he signed as a witness on the deed, he did not actually witness McKown signing it but recognized McKown’s signature.  Heavener was unable to produce the original deed during the trial but offered a copy instead.  Heavener stated she was unable to produce the original because she had placed it in a white Bible kept in the study at the Craig House and the Bible was stolen during a robbery.  She testified she kept copies of the deed in a Ziploc bag in the study, but these were not taken during the robbery.  Heavener testified she did not record the deed because her father stated he did not want it recorded until after his death.  Heavener admitted she never paid taxes on nor insured either of the properties.  McKown died in February 1997.  Heavener made claims against McKown’s estate seeking reimbursement for monies she expended to repair the properties. 

When Marshall Walker, the personal representative of McKown’s estate, read McKown’s will to Heavener in late February or early March 1997, he stated the will specified that the proceeds derived from the Craig House and the sale of timber were to be placed in trust for the benefit of his grandchildren (Heavener’s and Heavener’s sister’s children).  At the reading of the will, Heavener did not assert that she owned the property.  Walker testified he was familiar with McKown’s business dealings, and the use of the deed and the language used in the deed was inconsistent with McKown’s normal business dealings.  Walker related the details of a conversation he had with McKown in August 1996 about the distribution of the properties in his will.  “[McKown said] he wanted [the grandchildren] to have the proceeds from the timber cutting and the Craig House.  [McKown added] I’d like for you to go on and make the Craig House into rental property, rent it out and have income coming in. . . .”  Heavener objected to this statement as inadmissible hearsay.  The referee overruled the objection and admitted the testimony. 

Heavener first asserted her ownership of the properties in a letter written to Walker on May 13, 1997.  The letter specified that the deed was signed on the driveway at the Craig House and urged Walker to develop the Craig House rather than sell it and to turn the Durham Store Building into an agricultural museum.  The letter requested Walker give Heavener and her sister time to create a proposal for turning the Durham Store Building into a museum by arranging for insurance and a plan to alleviate any risk of liability to the estate. 

After hearing the testimony, the special referee found the deed ineffective because it was not executed under seal and Heavener failed to prove that McKown’s intent was to convey the properties to her.  Heavener appeals.


This is an action to quiet title.  An action to quiet title is equitable in nature.  Van Every v. Chinquapin Hollow, Inc., 265 S.C. 474, 477, 219 S.E.2d 909, 910 (1975).  An action to interpret a deed is equitable in nature.  Slear v. Hanna, 329 S.C. 407, 410-11, 496 S.E.2d 633, 635 (1998).  In an action in equity, the appellate court can find facts in accordance with its view of the preponderance of the evidence.  Townes Assocs., Ltd. v. City of Greenville, 266 S.C. 81, 86, 221 S.E.2d 773, 775 (1976).  The appellate court is not required to disregard the findings of the special referee.  Florence County Sch. Dist. #2 v. Interkal, Inc., 348 S.C. 446, 450, 559 S.E.2d 866, 868 (Ct. App. 2002).


I.  Hearsay Statement

Heavener contends the referee erred when he admitted Walker’s testimony regarding the disposition of the Craig House in McKown’s will as inadmissible hearsay.  We disagree.

Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”  Rule 801(c), SCRE.  The South Carolina Rules of Evidence provide an exception to the prohibition on use of hearsay if the statement shows the declarant’s state of mind. 

The following are not excluded by the hearsay rule . . . A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.

Rule 803(3), SCRE (emphasis added). 

A testator’s declarations concerning the execution, revocation, identification or terms of his or her will are admissible.  Rule 803(3), SCRE.  By its very terms, the new rule allows the testator to look backward and make a statement of memory or belief to prove the fact remembered or believed.

Danny R. Collins, S.C. Evidence 589 (2d ed. 2000).

The content of the conversation between Walker and McKown was not offered to prove that McKown, not Heavener, owned the properties, but to show McKown’s state of mind regarding his intent as to the distribution of the properties in his will.  See Ivester v. Fowler, 109 S.C. 424, 96 S.E. 154 (1917) (statement to show testator intended to create new boundary between tracts of land).  Therefore, the conversation falls squarely within the hearsay exception enumerated in Rule 803(3), SCRE, and the referee did not err when he admitted Walker’s testimony.         

II.  Conveyance of Property

Heavener argues the special referee erred when he determined that the deed was insufficient to transfer the properties because the deed met the formal requirements to be valid and was delivered.  We disagree.

The purpose of a deed is to transfer an interest in realty from a grantor to a grantee.  23 Am. Jur. 2d Deeds § 1 (2002).  When determining the construction of a deed, the intention of the grantor controls.  McDaniel v. Connor, 206 S.C. 96, 100, 33 S.E.2d 75, 76 (1945).  “[T]he party asserting a transfer of title bears the burden of proving its own good title.”  Lowcountry Open Land Trust v. State, 347 S.C. 96, 103, 552 S.E.2d 778, 782 (Ct. App. 2001).

Heavener argues that because (1) the deed was written; (2) identified McKown as the grantor; (3) identified Heavener as the grantee; (4) was signed by McKown; (5) identified the properties by their common names and by referencing their descriptions in the deed book and the tax map; (6) was witnessed and signed by two witnesses; (7) set forth the intention of the grantor to convey property, and (8) employed language that reasonably indicated McKown was reserving a life estate for himself in the property, she met her burden of proving the intention of transferring title. Thus she argues, the extrinsic evidence introduced at trial is irrelevant.  We disagree. 

The language of the deed itself is ambiguous because the deed states it is an irrevocable living trust.  Nowhere in the record is there reference made to an irrevocable living trust, nor were terms of an irrevocable living trust introduced at trial.  Because there is reference in the purported deed to a document that Heavener has not proved existed, there is a latent ambiguity in the document.  When there is latent ambiguity in a document, the court may allow extrinsic evidence to determine the grantor’s intent.  S.C. Nat’l Bank v. Bonds, 260 S.C. 327, 332, 195 S.E.2d 835, 837 (1973).

When examining the evidence presented to the referee, substantial evidence supports a finding that McKown did not intend to transfer the properties to Heavener.  Heavener did not assert ownership of the properties during the reading of the will.  Heavener never paid taxes on or insured the properties.  Heavener wrote a letter to Walker asking him not to sell the Craig House and to allow time to create a proposal to turn the Durham Store Building into an agricultural museum, which was inconsistent with her claim of ownership of the property.  Heavener filed claims against the estate to reimburse her for repairs she made to the properties.

Walker testified it was not in McKown’s normal course of business dealings to transfer property in this manner and that the language of the document was inconsistent with language normally used by McKown.  Walker’s conversation with McKown demonstrates that McKown intended to leave the income generated from the Craig House to his grandchildren, which is inconsistent with Heavener’s claim of ownership of the property.  The referee had credibility concerns with Heavener’s story regarding the theft of the original document and the existence of copies in a Ziploc bag in the same room.  There were conflicts between Heavener’s and the witnesses’ testimony regarding where the signing of the document took place.  We defer to the judgment of the referee who was in a better position to see and hear the witnesses and thereby to judge their credibility.  The appellate court is not required to disregard the findings of the special referee.  See Florence County Sch. Dist. #2, 348 S.C. at 450, 559 S.E.2d at 868.

Looking at the extrinsic evidence presented, we conclude the referee did not err when he found Heavener had failed to meet her burden in showing she was entitled to a transfer of title in the properties. [1]


STILWELL and HOWARD, JJ., and STROM, Acting Judge, concur.

[1]           As we find Heavener failed to meet her burden to prove transfer of title in the properties, we need not address whether the deed was invalid for lack of a seal.