Express Trusts

The South Carolina Trust Code⁶³ provides that an express trust may be created by either the "transfer of property to another person as trustee," or by a

"written declaration signed by the owner of property that the owner holds identifiable property as trustee." S.C. Code Ann. § 62-7-401(a)(1); see also All Saints, 385 S.C. at 449, 685 S.E.2d at 174. However, it is axiomatic that the trust is created only if, inter alia, the settlor indicates an intention to create the trust.

S.C. Code Ann. § 62-7-402(a)(2); State v. Parris, 363 S.C. 477, 482, 611 S.E.2d 501, 503 (2005). Moreover, to satisfy the statute of frauds, "a trust of real property . . . must be proved by some writing signed by the party creating the trust." S.C.

Code Ann. § 62-7-401(a)(2); Whetstone v. Whetstone, 309 S.C. 227, 231–32, 420 S.E.2d 877, 879 (Ct. App. 1992) (citing Beckham v. Short, 298 S.C. 348, 349, 380 S.E.2d 826, 827 (1989)). Proof of express trusts must be made by clear and

convincing evidence. Price v. Brown, 4 S.C. 144 (1873); cf. S.C. Code Ann. § 62-7-407 (stating that the burden of persuasion for oral trusts is clear and convincing

63 S.C. Code Ann. §§ 62-7-101 to -1106 (2009 & Supp. 2016).

evidence).

In examining the efficacy of the Dennis Canon, I would find that it does not satisfy the requirements for creating an express trust under South Carolina law.

First, there was no transfer of title. In fact, the defendants stipulated at trial that the property in dispute is (and has always been) titled in the plaintiff parishes' names.

Thus, in order to create an express trust, the plaintiff parishes—as the title-holders—must have made a written, signed statement of intent to transfer their property into a trust for the benefit of the national church. Cf. Turbeville v. Morris, 203 S.C. 287, 26 S.E.2d 821 (1943) (examining the document creating a purported trust in order to ascertain which church faction was the beneficiary of the trust).

However, the Dennis Canon is merely the national church's statement of interest in the plaintiff parishes' properties. "It is an axiomatic principle of law that a person or entity must hold title to property in order to declare that it is held in trust for the benefit of another or transfer legal title to one person for the benefit of another."

All Saints, 385 S.C. at 449, 685 S.E.2d at 174. Thus, I believe the only conclusion this Court could reach under South Carolina law is that the Dennis Canon is not a basis for asserting legal title to the plaintiffs' properties, nor does it create an

express trust over the those properties. Id. (holding that the Dennis Canon does not create an express trust pursuant to South Carolina property law); cf. Jones, 443 U.S. at 606 (stating that civil courts must give effect to deeds and trust documents executed by the general church "provided [the documents are] embodied in some legally cognizable form" (emphasis added)).⁶⁴

With respect to the writing requirement, the defendants argue that twenty-eight of the thirty-six plaintiff parishes "made express promises in their governing documents to comply with the [n]ational [c]hurch's rules after those rules had been amended to include the Dennis Canon in 1979," and that "[t]hese writings fulfilled the writing and signature requirements of South Carolina's Trust Code."⁶⁵ I would

64 For this reason, I believe the lead opinion errs in reexamining our holding in All Saints. I am just as firmly convinced now—as the Court was in 2009—that the Dennis Canon did not create an express trust under South Carolina law and that All Saints was correctly decided. To the extent the lead opinion contends that it is not seeking to overrule the result of All Saints, its analysis of the issue does not

comport with this assertion.

65 A majority of the Court agrees with my analysis up to this point, finding we must apply neutral principles of South Carolina property law to resolve this

reject this argument for two reasons.

First, the twenty-eight parishes that made this alleged express promise at most merely acceded to the national church's constitution and canons. However, their accession did not include a transfer of title in a form recognized under South Carolina law. Moreover, like the two prior disassociations—from the Church of England during the Revolutionary War, and from the national church during the Civil War—the plaintiffs associated and disassociated with the national church on their own terms, and at no point made a title transfer recognizable under South Carolina law. Thus, it is my opinion that the parishes' accession to the national church's rules does not constitute clear and convincing evidence that they intended to place their property in trust (either revocable or irrevocable) for the national church. See Price, 4 S.C. at 144 (requiring clear and convincing evidence of intent to place property in beneficial use for another).⁶⁶

dispute. However, on this argument, Chief Justice Beatty and I part ways. He agrees with the defendants' argument, finding "the Dennis Canon had no effect until acceded to in writing by the [twenty-eight] individual parishes." I explain, infra, why I respectfully disagree with him. Essentially, I do not believe mere accession meets the requirements of South Carolina law for the creation of a trust.

66 I note that the defendants ask that we resolve this title issue by deciding whether the parties complied with the rules set forth in their respective constitutions and canons—such as the Dennis Canon. While we can decide that the Dennis Canon (and other governing documents) are not legally binding trust documents because they do not comport with the secular formalities required by South Carolina law to impose a trust on the settlor's property, it would be completely improper under settled First Amendment jurisprudence for this Court to resolve this real property title issue by delving into the ecclesiastical doctrine of the national church. See, e.g., Presbyterian Church, 393 U.S. at 449 ("States, religious organizations, and individuals must structure relationships involving church property so as not to require the civil courts to resolve ecclesiastical questions.").

The concurrence suggests the Court does not have enough information to determine, applying long-standing state property principles, the statuses of the titles of the various properties, and that at best, a remand would be required to allow the parties to litigate the issue. However, this flies in the face of basic appellate principles. Cf. Odom v. State, 337 S.C. 256, 261, 523 S.E.2d 753, 755