Estate of Jetter, Matter of

Decision Date29 October 1997
Docket Number20020,Nos. 19999,s. 19999
Citation1997 SD 125,570 N.W.2d 26
PartiesIn the Matter of the ESTATE OF Robert G. JETTER, Deceased.
CourtSouth Dakota Supreme Court

Mark Barnett, Attorney General, David D. Wiest, Assistant Attorney General, Pierre, for appellant State of South Dakota.

Ronald C. Aho, Brookings, for appellee heirs of Frances Schwab Jetter.

James C. Robbennolt, Pierre, Joseph M. Butler and Allen G. Nelson, Rapid City, for appellee heirs of John Carl Jetter.


¶1 The State of South Dakota and the Office of the Commissioner of School and Public Lands (State) appeal from a trial court's order denying the State's claim of escheat. We affirm.


¶2 Robert G. Jetter (Jetter) and his brother Martin farmed and ranched together in Haakon County near Milesville, South Dakota. Neither brother ever married nor had children. They spent their entire lives solely devoted to their ranching pursuits and through decades of diligent hard work, they were successful at it.

¶3 In 1981, Jetter contacted attorney Russell C. Molstad and executed a will which devised all of his property to his brother Martin in the second provision to the will. Viewed in isolation, the will's third provision purported to disinherit all of Jetter's other relatives:

I have intentionally omitted all of my heirs and all other persons whomsoever, who are not specifically mentioned herein, and I hereby generally and specifically disinherit each and all persons whomsoever claiming to be my heirs-at-law and each and all persons whomsoever who, if I died intestate, would be entitled to any part of my estate except those herein provided for.

The following year, Martin contacted attorney Molstad and executed a nearly identical will, leaving all of his property to Jetter and including a provision purporting to disinherit all of Martin's other relatives.

¶4 Martin died in December 1990. Jetter inherited all of Martin's property under his will. At the time of Martin's death, Jetter was incompetent and remained so up until his death. He was living in a nursing home and did not attend his brother's funeral. He was unaware his brother had died and was likewise unaware of any of his relatives or of the nature and extent of any property he owned. A guardianship was established for Jetter approximately one month after Martin died.

¶5 Jetter died six years later on October 2, 1996. At the time of his death, he was still residing in a nursing home in Philip, South Dakota. He had amassed an estate estimated to be worth 3.2 million dollars in real and personal property. The will he executed in 1981 was admitted into probate and declared valid.

¶6 The personal representative petitioned for determination of heirship. A hearing on this petition was held December 5, 1996. Following that hearing, the trial court ruled the disinheriting clause in Jetter's will was not applicable and that his estate was to pass to his heirs by intestate succession unrestricted by the disputed "disinheritance" clause. The court concluded "[t]he plain language of Robert G. Jetter's Will indicates that he wanted to disinherit his other heirs if Martin was [sic] alive, but there is no indication that he intended to disinherit them if Martin Jetter predeceased him." From this, the trial court concluded the will made an ineffective disposition and that Jetter's property would be distributed pursuant to the law of intestacy.

¶7 The trial court denied the State's escheat claim. The State motioned for reconsideration of the court's decision. Following a hearing, this motion was denied. The State now appeals raising the following issues:

1) Whether SDCL 29A-2-101 mandates that words of disinheritance in Jetter's will apply to the testator's property?

2) Whether the disinheriting clause in Jetter's will is ambiguous?

3) Whether the trial court erred in holding that Jetter's estate passes by intestate succession to his heirs?

¶8 Appellees are heirs of Frances Schwab Jetter, Jetter's mother, and heirs of John Carl Jetter, Jetter's alleged half-blood brother. Heirs of John Carl Jetter filed a notice of review but waived consideration of any issues raised therein by failing to brief them. SDCL 15-26A-60(6); Peterson v. Safway Steel Scaffolds Co., 400 N.W.2d 909, 912 (S.D.1987).


¶9 1. Whether SDCL 29A-2-101 mandates that words of disinheritance in Jetter's will apply to the testator's property?

¶10 SDCL 29A-2-101 is part of the newly-enacted South Dakota Uniform Probate Code and this Court has not, until now, had the opportunity to interpret this statute. 1 The question presented is one of first impression. This Court interprets statutes under a de novo standard of review without deference to the decision of the trial court. City of Brookings v. Winker, 1996 SD 129, p 4, 554 N.W.2d 827, 828; In re Estate of Steed, 521 N.W.2d 675, 680 (S.D.1994).

¶11 In addition, this Court has previously noted:

Statutes are to be construed to give effect to each statute and so as to have them exist in harmony. State v. Woods, 361 N.W.2d 620, 622 (S.D.1985); Matter of Exploration Permit Renewal, 323 N.W.2d 858, 860 (S.D.1982). It is a fundamental rule of statutory construction that the intention of the law is to be primarily ascertained from the language expressed in the statute. Petition of Famous Brands, Inc., 347 N.W.2d 882, 884 (S.D.1984). In addition, we are statutorily mandated to interpret uniform laws such as the [UPC] 'to effectuate its general purpose to make uniform the law of those states which enact it.' SDCL 2-14-13.

Rushmore State Bank v. Kurylas, 424 N.W.2d 649, 653 (S.D.1988).

¶12 SDCL 29A-2-101 provides that:

(a) Any part of a decedent's estate not effectively disposed of by will or otherwise passes by intestate succession to the decedent's heirs as prescribed in this code, except as modified by the decedent's will.

(b) A decedent by will may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession. If that individual or a member of that class survives the decedent, the share of the decedent's intestate estate to which that individual or class would have succeeded passes as if that individual or all members of that class had disclaimed their intestate shares.

(emphasis added). This statute was adopted from the Uniform Probate Code § 2-101, 1990 version, and is nearly identical to UPC § 2-101. 2 As such, it is appropriate to examine the Official Comment to the 1990 revision of UPC § 2-101(b):

New subsection (b) authorizes the decedent, by will, to exclude or limit the right of an individual or class to share in the decedent's intestate estate, in effect disinheriting that individual or class. By specifically authorizing so-called negative wills, subsection (b) reverses the usually accepted common-law rule, which defeats a testator's intent for no sufficient reason. See Note, "The Intestate Claims of Heirs Excluded by Will: Should 'Negative Wills' Be Enforced?," 52 U.Chi.L.Rev. 177 (1985).

Comment, UPC § 2-101, 8 ULA 105 (Supp.1997). 3 The Comment instructs that a "principal feature" of the 1990 revision is that "[s]o-called negative wills are authorized, under which the decedent who dies intestate, in whole or in part, can by will disinherit a particular heir." Id. at 104. 4 The Comment further states:

Whether or not in an individual case the decedent's will has excluded or limited the right of an individual or class to take a share of the decedent's intestate estate is a question of construction. A clear case would be one in which the decedent's will expressly states that an individual [or class] is to receive none of the decedent's estate....

An individual need not be identified by name to be excluded.... A group or class of relatives (such as 'my brothers and sisters') can also be excluded under this provision.

Id. at 105.

¶13 Thus, we are called upon to determine what constitutes a "class" within the confines of SDCL 29A-2-101. Is it limited to certain finite groups such as "my brothers and sisters," or is it so expansive as to constitute all those who would take as intestate heirs under a will thus allowing the State to argue that an escheat now exists?

¶14 Prior to the adoption of the Uniform Probate Code, a majority of states held that attempting to exclude an intestate heir from his or her share of intestate property was ineffective. This was referred to as the "American Rule." Other states followed what was known as the "English Rule," under which a testator could deprive an intestate heir of his or her intestate share if there were other heirs of the testator to take such property. See generally, "The Intestate Claims of Heirs Excluded by Will: Should 'Negative Wills' be Enforced?," 52 U.Chi.L.Rev. 177 (1985). South Dakota never had cause to adopt either of these rules.

¶15 We were informed by the Jetter heirs that they can locate no case in the past three hundred years either in England or the United States whereby heirs were known to exist and yet an escheat was still allowed in favor of the crown or state. The State of South Dakota concedes this to be correct. However, the State argues that the South Dakota Legislature, in adopting the Uniform Probate Code, in essence rejected both the traditional American and English rules and opted for a new rule which would authorize an escheat even where heirs are known to exist. The Jetter heirs counter that the UPC adopted the English rule.

¶16 As an overall view, we would note that the UPC does not appear to be a revolutionary departure from past probate procedure. SDCL 29A-1-103 provides that: "[u]nless displaced by the particular provisions of this code, the principles of law and equity supplement its provisions." 5

¶17 Although "class" is not defined by SDCL 29A-2-101(b), we would note 29A-2-603(c)(1) provides that a "class gift" excludes a devise to " 'heirs,' 'next...

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