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appealtrialwill
appealtrialwill

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In re Estate of Fabian, 326 S.C. 349, 483 S.E.2d 474

Facts

In 1942, Mary Grace Fender gave birth to Rudy out of wedlock, and the family agreed to present him as Eva's child. Rudy was raised as a brother to Alexina and her siblings, and this was reflected in family obituaries and estate distributions after the death of their father, J.J. However, when Alexina died, her will excluded Rudy as a beneficiary, leading to the current dispute over the interpretation of the term 'brother' in her will.

In 1942, twenty-one year old Mary Grace Fender gave birth, out of wedlock, to a son she named Rudy. Mary Grace's parents, Junior Jacob (J.J.) and Eva, gathered the four oldest of seven siblings, including Mary Grace, together. The family took a solemn vow to tell the community Rudy was Eva's child. From that moment on, they agreed the siblings would speak of Rudy only as their brother and the parents would call him their son. They were so dedicated to this vow that Rudy did not find out the real truth until he was 47 years old.

Issue

Did the trial court err in finding that Rudy was not a beneficiary under Alexina's will and in excluding extrinsic evidence to determine the testator's intent?

Rudy appeals, arguing the trial judge erred in excluding extrinsic evidence to establish Alexina's intent.

Rule

In construing a will, courts should strive to discover and give effect to the testator's intent, and may resort to extrinsic evidence when the terms of the will are ambiguous.

In construing a will, courts should strive to discover and give effect to the testator's intent. Fenzel v. Floyd, 289 S.C. 495, 347 S.E.2d 105 (Ct.App.1986). The first resort is always to the language of the will itself. Id. Where the terms of the will are ambiguous, the court may resort to extrinsic evidence to resolve the ambiguity. Id.

Analysis

The court determined that a latent ambiguity existed regarding the term 'brother' as used in Alexina's will, given the unique circumstances of Rudy's upbringing and the family's treatment of him as a sibling. The court noted that extrinsic evidence was necessary to ascertain Alexina's true intent at the time she executed her will, especially since she had previously treated Rudy as a brother in other contexts.

Applying the above principles to this case, we must first determine whether a latent ambiguity exists. Ordinarily, brother means male sibling. However, the facts of this case are far from ordinary.

Conclusion

The Court of Appeals reversed the trial court's decision and remanded the case for a new trial, instructing that extrinsic evidence be considered to determine Alexina's intent regarding the term 'brother' in her will.

We therefore reverse and remand for a new trial. On remand, the court shall consider extrinsic evidence in determining Alexina's intent.

Who won?

Rudy C. Fender prevailed in the appeal because the court found that the trial court had erred in excluding extrinsic evidence that could clarify the testator's intent.

Rudy C. Fender prevailed in the appeal because the court found that the trial court had erred in excluding extrinsic evidence that could clarify the testator's intent.

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