#27793-r-SLZ

2016 S.D. 74

                      IN THE SUPREME COURT
                              OF THE
                     STATE OF SOUTH DAKOTA

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                 ESTATE OF BONNIE JEAN HUBERT,
               also known as Bonnie Jean Pease, Deceased.


                                 ****

               APPEAL FROM THE CIRCUIT COURT OF
                  THE FIFTH JUDICIAL CIRCUIT
                 BROWN COUNTY, SOUTH DAKOTA

                                 ****

                 THE HONORABLE SCOTT P. MYREN
                            Judge

                                 ****

WILLIAM D. GERDES
JERALD M. MCNEARY, JR. of
William D. Gerdes, P.C.
Aberdeen, South Dakota                       Attorneys for appellants
                                             Lynn and Lisa Schock.


JACK H. HIEB
ZACHARY W. PETERSON of
Richardson, Wyly, Wise,
 Sauck & Hieb, LLP
Aberdeen, South Dakota                       Attorneys for appellee
                                             Donna Mae Sedivy.

                                 ****

                                             CONSIDERED ON BRIEFS
                                             ON OCTOBER 3, 2016

                                             OPINION FILED 10/26/16
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ZINTER, Justice

[¶1.]        Bonnie Jean Pease 1 died leaving a holographic will. The circuit court

ruled that the will devised all residual property to Douglas Hubert and nothing to

Lisa and Lynn Schock. The court ruled that Pease only intended Schocks to be

personal representatives who were to execute the will. Schocks appeal. We reverse.

                            Facts and Procedural History

[¶2.]        Pease executed a holographic will while in the penitentiary

approximately seven months before her death on August 4, 2013. The will

disinherited Pease’s mother Donna Sedivy, her sister Beverly Shimmin, and her

brother Brian Hubert, but not her brother Douglas Hubert. The will explained the

disinheritances as well as her other wishes. With respect to her wishes, Pease

indicated that Douglas had “some right to acquire some of [her] wealth,” that she

owed her friends Lisa and Lynn Schock “for their amazing precious support,” that

she needed to provide care for her bird “Cocky,” and that she wanted to provide

funding for a lawsuit against the State and the South Dakota Women’s Prison.

Following this explanatory language, Pease wrote gifting language that provided:

             Hence, I give all my belongings to Lisa and Lynn Schock
             contingent on them giving a share to my brother Douglas Dean
             Hubert and for Cocky’s new keeper mom search, and making
             some arrangements for litigation start monies to correct
             injustices at SDWP in Pierre.

The foregoing language was followed by a break and a new paragraph concerning

“executors.” It provided:




1.      Also known as Bonnie Jean Hubert.
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              Specifically I name Lisa & Lynn Schock the Executors of my
              estate. I have already transferred many things to them prior to
              my death. This is for what remains and I [sic]
              Dated this 10th day of January 2013.

[¶3.]         The circuit court admitted the will to probate and held an evidentiary

hearing to determine whether the will could be executed and if so, how to execute it.

Following the hearing, the court interpreted the will to mean that Pease did not

intend to devise anything to Schocks. The court ruled that Pease only intended to

appoint them as personal representatives who were to set aside funds to search for

a new home for Cocky and fund litigation against the State; and after that, Schocks

were to distribute the entire residual estate to Douglas. 2

[¶4.]         Schocks appeal. They argue that the gifting language of the will gives

them a conditional gift.

                                       Decision

[¶5.]         We review the interpretation of a will de novo, with no deference to the

circuit court’s interpretation. In re Estate of Kesling, 2012 S.D. 70, ¶ 6, 822 N.W.2d

709, 710. “The primary goal in interpreting a will is to determine the testator’s

intent.” Id. ¶ 7, 822 N.W.2d at 710-11. “In determining testamentary intent, all

words and provisions appearing in a will must be given effect as far as possible, and

none should be cast aside as meaningless.” Id. ¶ 7, 822 N.W.2d at 711. “If the

intent is clear from the language used, that intent controls.” Id. “Our inquiry is

limited to what the testator meant by what [she] said, not what we think the




2.      The Schocks volunteered to care for the bird. Therefore, the court ruled that
        the Schocks would only have to submit a plan for the litigation and provide a
        proposal for what Douglas would receive from the estate.
                                          -2-
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testator meant to say.” In re Estate of Klauzer, 2000 S.D. 7, ¶ 9, 604 N.W.2d 474,

477.

[¶6.]         The only dispute is whether the will makes a gift to Schocks or

whether it only appoints them personal representatives. 3 The circuit court ruled

that the language of the will reflected Pease’s intent to give Schocks her

“belongings” only as “executors” to distribute them according to the “specific

requests.” In the court’s view, the gifting language, “Hence, I give all my belongings

to Lisa and Lynn Schock contingent on” three specific requests—when read together

with the explanatory language—“indicate[d] no desire to give the Schocks

anything.” The court found that Pease only intended to: provide funding to search

for a new home for Cocky; provide “litigation start monies” against the prison; and

provide Douglas with the remainder of the estate. The court believed that because

Pease had three specific goals4 but made no specific devise to Schocks, they were

not entitled to receive anything. The court also believed that Pease had already

transferred everything she wanted Schocks to receive before her death and that the

statement in the executor language, “This is for what remains,” reflected Pease’s

intent that Schocks were to distribute her remaining belongings only as personal

representatives and not devisees.




3.      There were other concerns about execution of other provisions that were
        addressed in the proceedings below. None of those issues have been raised on
        appeal.

4.      The court did not believe that the sentence in the explanatory language, “I
        owe Lisa & Lynn Schock for their amazing precious support of me and Cocky
        from 2010 to and through the end of my life,” was one of the will’s specific
        goals.
                                           -3-
#27793

[¶7.]           We disagree with the circuit court’s interpretation. Immediately after

explaining the reasons for her wishes, Pease wrote a gifting clause with language

unambiguously making a testamentary gift to Schocks: “Hence, I give all my

belongings to Lisa and Lynn Schock . . . .” Pease did condition this gift on three

requirements: “giving a share to . . . Douglas Dean Hubert and for Cocky’s new

keeper mom search, and making some arrangements for litigation start monies to

correct injustices at SDWP in Pierre.” But this conditional gifting language is not

precatory—it does not leave “the actual disposition of the property within the

discretion of another.” See Nelson v. First Nw. Tr. Co. (In re Estate of Nelson),

274 N.W.2d 584, 587 (S.D. 1978). Further, the gifting language is followed by the

blank line and new paragraph appointing Schocks as “executors.” This separation

of language and subject matter indicates that the language in the “executors”

paragraph was neither gifting language nor a limitation on the gifting language in

the preceding paragraph. Cf. Estate of Kesling, 2012 S.D. 70, ¶ 11, 822 N.W.2d

at 711 (stating the word “wish” at the beginning of a sentence to indicate who would

be administrator of the estate did not carry over into the second part of the

sentence, which used the word “shall” in reference to disposition of the estate,

because the sentence contained two independent clauses separated by a

conjunction).

[¶8.]           The gifting language in Pease’s will is not ambiguous. The will does

not say “I give all my belongings to my brother Douglas Hubert.” Nor does it say “I

give all my belongings to Lisa and Lynn Schock to distribute to my brother Douglas

Hubert.” It unequivocally “give[s] all” of Pease’s “belongings” to Schocks

“contingent on” them “giving a share” to Douglas, providing for “Cocky’s new keeper
                                         -4-
#27793

mom search, and making some arrangements for litigation start monies.” Because

“[o]ur inquiry is limited to what the testator meant by what [she] said, not what we

think the testator meant to say,” Estate of Klauzer, 2000 S.D. 7, ¶ 9, 604 N.W.2d

at 477, we conclude that the will gives Pease’s property to Schocks subject to the

stated conditions.

[¶9.]        Reversed and remanded.

[¶10.]       GILBERTSON, Chief Justice, and SEVERSON, WILBUR, and KERN,

Justices, concur.




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