THIS OPINION HAS NO PRECEDENTIAL
VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT
AS PROVIDED BY RULE 239(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Zepher Frederick, as Personal Representative of the Estate of Forriest
Cave, Appellant,
v.
Manly Dunbar; First Citizens Bank & Trust Company of South Carolina;
and Lang Dunbar, Defendants,
Of Whom Manly Dunbar and Lang Dunbar are the
Respondents.
Appeal From Barnwell County
Richard B. Ness, Special Referee
Unpublished Opinion No. 2004-UP-187
Submitted March 8, 2004 Filed March
18, 2004
AFFIRMED
J. Martin Harvey and Pete Kulmala, both of Barnwell, for Appellants.
Miles Loadholt, of Barnwell, for Respondents.
PER CURIAM: Appellant, the personal representative
of the Estate of Forriest Cave, brought this action against Respondents, Manly
Dunbar and Lang Dunbar, seeking to determine that certain cashiers checks and
certificates of deposit were assets of the decedents estate. The matter was
referred to a special referee, who ruled in favor of Respondents. This appeal
follows. We affirm. [1]
FACTS
Forriest Cave died in Barnwell County on August
26, 2001. Appellant, a resident of Barnwell County, is Caves niece, the sole
devisee in Caves Last Will and Testament and the personal representative of
the estate. Manly Dunbar and Lang Dunbar are Caves nephews.
Although they lived in Ohio, the Dunbars often
visited Caves home. On a visit to her home in 1999, Cave informed the Dunbars
that she had $65,000.00 in cash hidden underneath her mattress. The Dunbars
told her it was not wise to keep such large amounts of cash in her home and
convinced her to put the money in certificate of deposits. As a result, on
August 26, 1999, Cave put the money in two certificate of deposits with First
Citizens Bankone issued in Caves name only, the other issued in Caves name,
payable on death to Manly Dunbar.
On a subsequent visit in April 2000, Cave told
the Dunbars about an additional sum of cash in the house. Cave converted this
cash into cashiers checks, one made payable to Cave only and two made out to
Forriest Cave or Manly D. Dunbar or Lang D. Dunbar, Jr. Cave placed the cashiers
checks in a bank bag, which she gave to the Dunbars along with the bank bags
key, asking them to take the bag with them back to Ohio. Deciding it was best
to leave the bag with Cave, the Dunbars hid the bank bag in Caves home, though
they retained possession of the bags key.
Upon Caves request, Manly Dunbar again visited
Cave in March 2001. After seeing his aunt, Manly Dunbar went to First Citizens
Bank and spoke with certain representatives of the bank. As a result of the
conversation, Barbara Wright, a longtime employee of the bank and lifetime friend
of Cave, traveled to Caves home with specific instructions from her supervisor
not to transact any business with Cave unless she was alert and in a position
to do business. As per Caves instructions, Wright assisted Cave in performing
transactions that made Manly Dunbar a joint owner of a certificate of deposit
having a face value of $16,659.83, a joint owner of Caves checking account,
and a joint owner of Caves safety deposit box.
Appellant commenced this action on August 31, 2001
by filing a Complaint, along with a Rule to Show Cause and Temporary Restraining
Order seeking to prohibit the Dunbars from disposing or liquidating the cashiers
checks and certificate of deposits.
On December 20, 2001, the circuit court
referred this matter to a special referee pursuant to Rule 53, SCRCP on Appellants
motion. On the accompanying form order, the circuit court left blank the line
supplied for the deadline for which the case must be heard and final order filed.
A hearing was held before the special referee on February 6, 2002, and an order
in favor of the Dunbars was filed on September 18, 2002.
LAW/ANALYSIS
Timeliness of Order/ Jurisdiction
Frederick asserts that the special referees
order should be declared void and without effect because the December 20, 2001
Order of Reference had expired, leaving the special referee without jurisdiction
to issue the order. We disagree.
Effective July 1, 1985, the South Carolina
Supreme Court issued an order outlining certain procedures applicable to masters-in-equity
and referees. This order included the following provisions:
IT IS FURTHER ORDERED that within sixty (60) days from the
date of filing of the Order of Reference, the Master or Referee shall hear the
referred matter.
IT IS FURTHER ORDERED that within sixty (60) days from the
date of the hearing, the Master or Referee shall make and file his report or
order with the clerk of court, unless such time shall have been extended in
writing by the Chief Judge for Administrative Purposes upon a showing of exceptional
circumstances.
The crux of Appellants argument is that because
over seven months passed between the hearing and order in this case, the special
referee failed to comply with the supreme courts 1985 mandate that referees
file orders within sixty days of holding a hearing on the matter. Citing our
decision in Smith v. Ocean Lakes Family Campground, 315 S.C. 379, 433
S.E.2d 909 (Ct. App. 1993), Appellant contends the failure to meet the deadline
divested the special referee of jurisdiction over the matter.
Appellants reliance on the 1985 supreme
court order to establish a timeliness requirement is misplaced because it no
longer governs the procedure for references to masters-in-equity and referees.
Instead, Rule 53, SCRCP has become the controlling authority over such references
and has fully supplanted the 1985 order.
In 1986, our supreme court substantially amended
Rule 53, SCRCP. Among other changes, the amended rule left scheduling of the
time and place of hearings to the referee. Such a delegation of discretionary
scheduling authority cannot be concurrently reconciled with the mandatory sixty-day
time limit proscribed by the 1985 order, and as such, the amended Rule 53 must
be understood to supplant its predecessor. Cf. Ramsey v. County of
McCormick, 306 S.C. 393, 397, 412 S.E.2d 408, 410 (1991) ([W]here conflicting
provisions exist, the last in point of time or order of arrangement, prevails.).
Moreover, the 1986 amendments also made clear that
referees have the same powers as a court sitting without a jury unless the order
of reference explicitly limits the referees authority. Rule 53, SCRCP, Notes
to the 1986 Amendments. Accordingly, just as the circuit courts order of reference
can limit the subject matter to which the referees authority extends, so too
can the order of reference limit the duration of that authority. Such was our
holding in Ocean Lakes. In that case, we ruled that a master had been
divested of jurisdiction for failing to file an order within the ninety-day
time limit the circuit court included in its order of reference. Id.
Unlike the order of reference in Ocean Lakes, which expired by its own
terms 90 days after the date of the order of reference, the order of reference
in the instant contained no temporal limitation, no period after which it would
automatically expire. See Ocean Lakes, 315 S.C. at 381, 433 S.E.2d
at 910.
The rule was amended again in 1999, and as the
following notes to the amendment explain, previous procedural restrictions were
done away with:
The detailed discussion of the powers of masters and special
referees, and the procedure to be followed in matters pending before them, has
been eliminated as unnecessary since the master or special referee has all the
powers that a circuit court judge sitting without a jury would have in the matter
and the procedure is that provided by the South Carolina Rules of Civil Procedure.
Rule 53, SCRCP, Notes to the 1999 Amendment.
Accordingly, as a corollary to our supreme
courts adoption of Rule 53 as the exclusive controlling authority for references
to masters and referees, the 1985 order is no longer of any effect, and masters
and referees are subject to no temporal limits for order entry other than those
included in the order of reference. Therefore, because the order of reference
contained no time restraint, jurisdiction remained soundly with the referee
when the order was issued on September 17, 2002.
Inter Vivos Gift
Appellant asserts that the special referee
erred in concluding that the cashiers checks were inter vivos gifts to the
Dunbars. We disagree.
An inter vivos gift is a contract between the
living which takes place by the mutual consent of the donor, who divests himself
of the property given in order to transmit the title to it to the donee gratuitously,
and the donee, who accepts and acquires legal title thereto. Baptist Found.
for Christian Educ. v. Baptist Coll. at Charleston, 282 S.C. 53, 58, 317
S.E.2d 453, 457 (Ct. App. 1984). In order to establish the existence of an
inter vivos gift, there must be a donative intent to transfer the property,
a delivery by the donor, and an acceptance by the donee. Worrell v. Lathan,
324 S.C. 368, 371, 478 S.E.2d 287, 288 (Ct. App. 1996).
The thrust of Appellants contention in this case
is that the delivery element was not satisfied because Cave never relinquished
possession. Although a transfer of possession is perhaps the clearest form
of delivery, it is not the only method by which delivery can be made. Our supreme
court explained this in Smith v. Johnson, 223 S.C. 64, 70, 74 S.E.2d
419, 421 (1953), when it stated:
It has been settled that it is not necessary that there should
be in all cases an actual manual delivery. The principle is stated thus: Property
in a chattel cannot be transferred by a parol gift without delivery; but by
delivery is not meant an actual manual delivery in all cases, but any circumstances
amounting to a clear demonstration of the intention of the one to transfer,
and of the other to accept, and which puts it into his power, or gives him authority
to take possession, is all that is necessary, and is a fact that is left to
the jury.
Id. at 70, 74 S.E.2d at 421 (internal quotations
omitted). Indeed, whenever a donor intending to make a gift so acts as to
put it within the power of the donee to take possession and exercise dominion
and control, he has completed delivery, whether he actually makes a manual deliverance
of the thing itself or not. Copeland v. Craig, 193 S.C. 484, 496, 8
S.E.2d 858, 866 (1940).
Applying the forgoing to the case at bar,
when Cave bestowed the key to the bank bag upon the Dunbars, she relinquished
and the Dunbars retained much more than a small metallic object. Keys are instrumentalities
of access; to deliver a key is to deliver that which is held under lock. See
Jaggers v. Estes, 22 S.C.Eq. (3 Strob. Eq.) 379 (1849) (But if the key
be delivered of a desk, in which a paper or a jewel is contained, the paper
or jewel is thereby delivered; because he who has the key has the dominion of
it.). Although the Dunbars left the bank bag hidden in Caves residence, by
retaining the key given to them, they likewise retained the power to take possession
of the bags contents. As correctly noted by the special referee, possession
of the key gave the Dunbars sole authority to take possession of the cashiers
checks at any time they desired, as even Ms. Cave did not have access to the
checks without the key to open the locked bag. Accordingly, because Caves
delivery of the key satisfied the element of delivery for the cashiers checks,
the continued physical presence of the bag in Caves residence does not render
ineffective the inter vivos gift to the Dunbars.
Mentally Competency
Lastly, Appellant contends that the special
referee erred in concluding that Cave was mentally competent when she executed
the banking transaction on March 16, 2001. We disagree.
When a party challenges a transaction based on
mental incompetence, the party alleging incompetence bears the burden of proving
incapacity at the time of the transaction by a preponderance of the evidence.
In re Thames, 344 S.C. 564, 572, 544 S.E.2d 854, 858 (Ct. App. 2001)
(internal citations omitted). This Court has previously defined contractual
capacity as a persons ability to understand, at the time the contract is executed,
the nature of the contract and its effect. Id. at 570, 544 S.E.2d at
857. To make this determination, we generally inquire as to whether the individual
lacked sufficient mental capacity to reasonably understand the transaction,
including the consequences and effects the transaction has upon the individuals
rights and interests. Id.
At trial, Appellant relied primarily on assessments
of Caves capacity in generalincluding testimony that she tended to be more
alert in the afternoon than in the morningto insinuate her incapacity on the
morning of the transaction. The special referee noted this deficiency by stating
that although Appellant offered several witnesses to testify about Ms. Caves
mental state prior to and subsequent to March 16, [Appellant] offered no testimony
about Ms. Caves mental capacity on the date these transactions occurred.
The referees analysis is in keeping with the rule that the question of competency
relates only to the date of the transaction. Church v. Trotter, 278
S.C. 504, 506, 299 S.E.2d 332, 333 (1983) ([T]his Court has looked specifically
to the condition of a party at the time of a transaction.). Respondent, on
the other hand, introduced the testimony of Ms. Wright, the bank employee under
specific instructions not to transact any business with Cave unless she was
alert and in a position to do business. This was the only testimony of an unbiased
witness as to Caves capacity at the time of the transaction. Accordingly,
viewing the record in full, we find sufficient evidence to support the referees
conclusion that the burden of proving Caves incapacity was unmet by Appellant.
AFFIRMED.
HEARN, C.J., ANDERSON and BEATTY, JJ., concur.
[1] We decide this case without oral argument pursuant
to Rule 215, SCACR.