Bock's Estate, In re, 10716

• Citation: 85 S.D. 113,177 N.W.2d 734
• Decision Date: 09 June 1970
• Docket Number: No. 10716,10716
• Parties: In the Matter of the ESTATE of Fred BOCK, Deceased. Lorraine ULMAN, Gladys Bock, Carol Chandler, Robert Bock and Earl Bock, as five of the heirs of Fred Bock, Deceased, Appellants, v. ESTATE of Fred BOCK, Evelyn Barwick, Estate of Frances Bock, Estate of Albert Bort, and Evalyn Thompson Belcher, Respondents.
• Court: Supreme Court of South Dakota

Page 734

177 N.W.2d 734

85 S.D. 113

In the Matter of the ESTATE of Fred BOCK, Deceased.

Lorraine ULMAN, Gladys Bock, Carol Chandler, Robert Bock and Earl Bock, as five of the heirs of Fred Bock, Deceased, Appellants, v. ESTATE of Fred BOCK, Evelyn Barwick, Estate of Frances Bock,

Estate of Albert Bort, and Evalyn Thompson

Belcher, Respondents.

No. 10716.

Supreme Court of South Dakota.

June 9, 1970.

Walter Mueller, of Overpeck, Hamblin & Mueller, Belle Fourche, for appellants.

John Amundson, Bowman, N.D., and Robert Kelley, of Johnson & Kelley, Lemmon, for respondents, coexecutors of Fred Bock Estate.

Newell E. Krause, of Lakeman & Krause, Mobridge, for respondents, Evelyn Barwick and Executrix of Frances Bock Estate and Executrix of Albert Bort Estate.

William E. Anderson, Belle Fourche, for respondent, Evalyn Thompson Belcher.

RENTTO, Judge.

This proceeding concerns the interpretation of the residuary clause of the will of Fred Bock, deceased. The county court determined that the property devised and bequeathed thereby was distributable per stirpes and not per capita. On appeal the circuit court affirmed. This appeal is taken from that action by five nieces and nephews of the testator, being five of the eight children of a brother who predeceased him, claiming that the distribution should have been per capita.

The will in question, drawn by a lawyer, was executed July 19, 1965. Following several specific bequests, the clause in issue appears as Article IV thereof and states:

'All the rest, residue and remainder of my estate, whether real, personal and mixed, whatsoever and wheresoever situate, not hereby nor in any codicil hereto otherwise disposed of, I give, devise and bequeath unto my beloved sister, if she survives me, and to my nieces and nephews. It is my intention that the persons taking under this Article shall receive such share as determined and in the proportions fixed by the laws of the State of South Dakota then in force relating to the descent of property in the event of intestacy.'

The testator died July 19, 1966. He was survived by only one sister who died August 3, 1967. Two other sisters and two brothers predeceased him. They left children and grandchildren surviving. These, along with the executrix of the surviving sister's estate, are the residuary legatees and devisees.

The petinent law of South Dakota relating to the descent of property in the event of intestacy now appears as SDCL 29--1--7. It provides that:

'If there he no issue, nor husband, nor wife, nor father, nor mother, then the estate is succeeded to and must be distributed in equal shares to the brothers and sisters of the decedent, and to the children or grandchildren of any deceased brother or sister by right of representation.'

There has been no change in the substance of this feature of our law since the adoption of our revised code in 1939. SDC 56.0104(3).

Appellants' claim of per capita distribution is premised on the notion that the first sentence of Article IV gave the residuary estate to a group of individuals who were to share it equally. They frankly concede that to sustain their position we must read out of the will the second sentence of that article. An interpretation that renders inoperative any of the words in a will should be avoided. SDCL 29--5--9. In ascertaining a testator's intent all the words and provisions appearing in his will must be given effect as far as possible, and none should be cast aside as meaningless. 95 C.J.S. Wills § 597; 57 Am.Jur., Wills, § 1129. To hold otherwise would be to convict a testator of performing useless acts.

In In Re Estate of Williamson, 45 S.D. 180, 186 N.W. 827, this court held that the beneficiaries under a will provision which read 'All of real and personal property I bequeath to my brothers and their familes' took per capita and not per stirpes. The opinion makes clear that its conclusion would have been different if there had been anything in the will to indicate the contrary. The second sentence of the article here involved, which appellants seek to eliminate, is the kind of indication the court observed to be absent in that case.

The complaining beneficiaries advance several reasons why this vital sentence should be ignored. They say that honoring it results in the testator dying intestate as to his residuary estate and testate as to the rest. In our view this observation is not justified. The residuary legatees and devisees take under the will, and the statute of descent is material only because the will gives to them that to which they would have been entitled, if the testator had died intestate. They also suggest that because the law of intestate succession is subject to legislative change the scheme of distribution in effect at the testator's death could differ from that prevailing when the will was executed. As pointed out above our law remained unchanged during such period. Consequently, we do not reach the question posed.

It appears rather uniformly held that a reference to the statute of descent and distribution tends to show that per stirpital...