THE STATE OF SOUTH CAROLINA

In The Supreme Court

American Heart

Association, South

Carolina Affiliate, Inc.,

and the American Cancer

Society, South Carolina

Division, Inc.,

County of Greenville, the

Honorable C. Diane

Smock, in her official

capacity as the Probate

Judge of Greenville

County, and the State of

South Carolina,

Appeal From Greenville County

Marc H. Westbrook, Judge

Opinion No. 24685

Heard February 6, 1997 - Filed September 2, 1997

AFFIRMED

D. Garrison Hill and Leo H. Hill, both of Hill Wyatt &

Bannister, L.L.P., of Greenville, for appellants.

County Attorney Judith S. Burk and Assistant County

Attorney Jeffrey D. Wile, both of Greenville, for

respondents County of Greenville, and the Honorable C.

Diane Smock.

Attorney General Charles Molony Condon, Deputy

Attorney General Treva Ashworth and Senior Assistant

Attorney General Kenneth P. Woodington, all of

p31

AMERICAN HEART ASSOCIATION, et al. v. COUNTY OF GREENVILLE, et al

Columbia, for respondent State of South Carolina.

H. Simmons Tate, Jr., of Sinkler & Boyd, P.A., of

Columbia and H. Bartholomew Cox, of Fort

Washington, Maryland, for amicus curiae petitioner The

Manuscript Society.

FINNEY, C.J.: Appellants commenced this action requesting a

declaration that the original will and signature of "Shoeless Joe" Jackson is an

asset of his estate and therefore, devised to his wife (Katie Jackson) and ultimately

to appellant charities.1 Appellants are seeking ownership and possession of the

tangible will. Additionally, appellants allege that respondents' claim of ownership

and possession constitute a taking of appellants' property without just

compensation. All parties moved for summary judgment on the basis that there

were no genuine issues of material fact and each side was entitled to judgment in

its favor as a matter of law. The court granted summary judgment in respondents'

favor and denied appellants' motion. Following a hearing, the circuit court declared

the original will is the property of Greenville County or alternatively, the State of

South Carolina. Appellants, the residual beneficiaries of Katie Jackson's estate

appeal the trial court's order.

Appellants contend the trial court erred in granting respondents'

summary judgment motion. Appellants assert a will is a person's personal property

since individuals may during their lifetime own, possess, use, enjoy, and dispose of

their will any way they see fit and upon death, the will becomes part of one's

estate passing directly to the personal representative. We disagree.

Summary judgement is appropriate when it is clear there is no genuine

issue of material fact and the moving party is entitled to judgment as a matter of

law. Kreutner v. David, 320 S.C. 283, 465 S.E.2d 88 (1995). The trial court ruled

that the Jackson will is a public record and must remain in the care, custody and

control of the Probate Court. The court held the original will constitutes a public

record pursuant to S. C. Code Ann. § 30-4-20(c) (1991). The circuit court concluded

that original wills, which are required by state law to be filed with the Probate

Court, constitute "public records."2 "Public record" under the Freedom of

Information Act includes all papers, or other documentary materials regardless of

physical form or characteristics prepared, owned, used, in the possession of, or

retained by a public body. § 30-4-20(c). The court determined that the probate

1Mr. Jackson's original signature is considered extremely rare and valuable.

2 S.C. Code Ann. § 62-2-901 (Supp. 1996) provides that persons having

possession, custody, or control of any last will and testament must deliver such

will to the probate court within thirty days of death.

p32

AMERICAN HEART ASSOCIATION, et al. v. COUNTY OF GREENVILLE, et al

code neither intends nor provides that the deliverer of a will, even if a devisee

under it, gain ownership in the actual document. Further, the circuit court

considered the records retention policy as ordered by this Court which provides for

the permanent retention of original documents from decedent estates.

We find Mrs. Jackson never owned the original will and therefore could

not pass ownership of the document to appellants. The trial court did not err in

concluding the will is a public record subject to retention by the county or State

and hence there was no unconstitutional taking of private property.

The trial court's judgment is

AFFIRMED.

TOAL, MOORE, WALLER and BURNETT, JJ., concur.

p33