Parkman v. Hanna , 311 S.C. 20 ( 1992 )

426 S.E.2d 743 (1992)

Cheryl PARKMAN, Russell Parkman, Suzanne Parkman and Stephen Parkman, Respondents,
v.
Larry L. HANNA, Appellant.

No. 23768.

Supreme Court of South Carolina.

Heard November 5, 1992. Decided December 21, 1992.

Steven E. Solomon, Myrtle Beach, for appellant.

David E. Martin, of DuRant & Martin, Myrtle Beach, for respondents.

CHANDLER, Justice:

We issued a writ of certiorari to review an Order of the Probate Court terminating the appointment of Larry L. Hanna (Hanna) as Personal Representative (PR) of the Estate of George Siekmann (Decedent). We affirm.

FACTS

Hanna was disbarred by this Court on May 7, 1990. In re Larry Laverne Hanna, 301 S.C. 310, 391 S.E.2d 728 (1990).^[1] Several years prior to disbarment, Hanna drafted a Will for the Decedent, in which he was named Personal Representative of the Estate.

The Decedent died, testate, on February 15, 1991, leaving Respondents (The Parkmans) as the only heirs-at-law. Hanna filed the Will with Probate Court on February 22, 1991, and was appointed PR on the same date.

The Parkmans petitioned Probate Court for Hanna's removal, alleging he was untrustworthy, incompetent and unfit to serve as PR for having committed acts of dishonesty, fraud and deceit which brought about his disbarment.

After a hearing, Probate Court found Hanna unsuitable to serve as PR on the basis of the facts and circumstances giving rise to his disbarment. Attorney David Martin was appointed as successor PR.

ISSUE

We issued certiorari to consider whether Hanna's termination was proper.

DISCUSSION

Under the South Carolina Probate Code, S.C.Code Ann. § 62-3-203(e)(2) (Cum.Supp. 1991),

(e) No person is qualified to serve as a personal representative who is:

(2) a person whom the Court finds unsuitable in formal proceedings; ...

We recognized in In re McClam's Estate, 245 S.C. 315, 319, 140 S.E.2d 478, 479 (1965) that

the Judge of Probate may deny administration to the person first entitled under the statute if upon the showing made before him he is satisfied that such person is not properly qualified for the position, and among other things the court calls attention to the fact that the granting of letters of administration is not automatic, because the law requires the issuance of a citation, to the end that the kindred or creditors of the intestate may show cause why the administration should not be granted to the person applying for it, notwithstanding such person may have the statutory priority. * * *

(Emphasis supplied) [citing Ex Parte Small, 69 S.C. 43, 48 S.E. 40 (1904)].

In Ex Parte Small, we noted that

one of the highest causes [upon which to deny a person administration] would be that the person applying was without character upon which to base a trust, or had given by conduct convincing reasons for the conclusion that he designed to divert the assets from the purposes of administration.

69 S.C. at 45, 48 S.E. at 40.

The authority of the Probate Court, derived from the statute and precedent case law, will not be disturbed absent a clear abuse of discretion. Ex Parte Tolbert, In re Tolbert's Estate, 206 S.C. 300, 34 S.E.2d 49 (1945).

Here, Probate Court acted well within its discretion in terminating the appointment. It noted, specifically, that Hanna had been found guilty by the Executive Committee of dishonesty, fraud, deceit, and misrepresentation, and that this Court had described his conduct in the disbarment proceeding as "patently shocking" and "manifestly unconscionable." 301 S.C. at 313, 391 S.E.2d at 729.

The court correctly equated the attorney client relationship with that of the PR of an Estate. Given Hanna's violation of his fiduciary relationship as an attorney, Probate Court found him likewise unfit for such a relationship as PR.

Significantly, all beneficiaries petitioned for Hanna's removal based upon his acts of fraud, deceit and untrustworthiness.

In sum, we find ample evidence supporting Hanna's termination as PR in this case^[2] and, accordingly, affirm the Order of the Probate Court.

AFFIRMED.

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

NOTES

[1] Hanna was also publicly reprimanded in 1987. In the Matter of Hanna, 294 S.C. 56, 362 S.E.2d 632 (1987).

[2] We do not hold that a disbarred attorney is per se disqualified to serve as the named PR in every case. The determination is one for the Probate Court pursuant to the provisions of § 62-3-203(e), reviewable upon a showing of abuse of discretion. Ex Parte: Tolbert, supra.