In re Estate of Klauzer

• Citation: 2000 SD 7,604 N.W.2d 474
• Decision Date: 12 January 2000
• Docket Number: No. 20997., No. 20921
• Parties: ESTATE OF John KLAUZER, Deceased.
• Court: Supreme Court of South Dakota

604 N.W.2d 474

2000 SD 7

ESTATE OF John KLAUZER, Deceased.

Nos. 20921, 20997.

Supreme Court of South Dakota.

Argued November 30, 1999.

Decided January 12, 2000.

Keith R. Smit and Candi Thomson of Morman Law Firm, Sturgis, South Dakota, for appellant Frank Klauzer.

Brad P. Gordon of Fuller, Tellinghuisen, Gordon & Percy, Spearfish, South Dakota, for appellees Douglas Olson and Fern Olson.

E. James Hood and Lester Nies of Richards, Hood & Nies, Spearfish, South Dakota, for appellees William Hollister and Shirley Hollister.

SABERS, Justice

[¶ 1.] Frank Klauzer, personal representative of John Klauzer's estate, appeals: (1) the Order of distribution of the estate in sixteen equal shares; (2) the denial of claimed compensation and reimbursement for expenses; and (3) a subsequent Order denying Frank the authority to appeal on behalf of the estate. We affirm.

FACTS

[¶ 2.] On March 26, 1993, Frank was appointed to act as Guardian and Conservator for his brother, John, who had suffered a severe stroke. In this capacity, Frank was required to inventory, account and manage the property of John and provide an annual accounting of John's estate. Frank was compensated for those services.

[¶ 3.] On September 9, 1996, John passed away. His estate was valued at $1.4 million. Pursuant to John's will, Frank was appointed personal representative of the estate on October 11, 1996. Wade Klauzer, John's nephew, petitioned for supervised administration and the trial court ordered the same.

[¶ 4.] John's will, dated August 30, 1990, disposed of the majority of his estate in the following residuary clause:

THIRD: I hereby give, devise and bequeath unto my brother, Thomas Klauzer, my sister, Agnes Blake, my sister, Anna Malenovsky Baker, my brother, Raymond Klauzer, my niece, Jenny Culver, my niece, Judy Klauzer, my niece, Bernice Cunningham, my nephew, Wade Klauzer, my nephew, Jim Klauzer, my niece, Debra Klauzer, friends, Douglas Olson and Fern Olson, and my friends, William Hollister and Shirley Hollister, my brother, Frank Klauzer, and my sister-in-law, Patricia Klauzer, all of my property of every kind and character and wheresoever situated, in equal shares, share and share alike. That should any of the individuals above named predecease me, then their share of my estate shall go to their decedent's [descendant's] ¹ surviving.

[¶ 5.] On December 22, 1998, the trial court ordered that (1) the residuary clause be distributed in sixteen equal shares and that (2) Frank be compensated for his services and expenses in the amount of $11,000. Frank petitioned the trial court requesting (3) authorization to appeal the decision on behalf of the estate, which was denied. Frank appeals all three issues in his personal capacity.

[¶ 6.] 1. WHETHER THE TRIAL COURT ERRED IN DIVIDING THE ESTATE IN SIXTEEN EQUAL SHARES INSTEAD OF FOURTEEN.

[¶ 7.] Frank argues that the twelve Klauzer relatives named in clause number three should take one share each while friends, Doug and Fern Olson and William and Shirley Hollister, should receive one share per couple resulting in a 1/14 th division of the estate. He relies heavily on what he terms the "grammatical geometrics" of the clause to support his contention: i.e., (1) the placement of the commas between the names of the devisees and the indication of relationship for the twelve heirs, but not for Olsons and Hollisters; (2) the word "and," which connects the spouses' names, is claimed as evidence that John intended for each couple to receive one share; and (3) his claim that in his previous will, John referred to his relatives individually and to his friends collectively as married couples which evidenced his continued intention to treat his married friends as one unit, not as individuals.

[¶ 8.] On the other hand, Olsons and Hollisters argue that all named individuals should take in equal shares resulting in a 1/16th division of the estate. For support, they point to John's will which: (1) refers to all sixteen heirs as "individuals"; (2) indicates that if any of the "individuals above named" predecease him, their share is to go to their "[descendant's] surviving"; and (3) provides that the named parties are to receive his property "in equal shares, share and share alike." They further argue that if John intended to treat them as two units, he would have repeated the exact language he used in his previous will. Instead, he materially altered his language which indicated his later intention to treat them as four individuals instead of two units.

[¶ 9.] Our goal in interpreting a will is to discern the testator's intent. If the intent is clear from the language used, that intent controls. However, "[i]f ... doubt remains as to decedent's intent, the language used and the circumstances surrounding the execution of the writing will again be examined in light of pertinent rules of construction." In re Estate of Nelson, 250 N.W.2d 286, 288 (S.D.1977) (citations omitted). Our inquiry is limited to what the testator meant by what he said, not what we think the testator meant to say. In re Trust of Cross, 551 N.W.2d 344, 346 (Iowa Ct.App.1996) (citation omitted).

[¶ 10.] In determining whether testamentary language is ambiguous, we have stated: "Language is ambiguous when it is reasonably capable of being understood in more than one sense." In re Estate of Jetter, 1997 SD 125, ¶ 20, 570 N.W.2d 26, 30-31 (quoting In re Estate of Olson, 332 N.W.2d 711, 713 (S.D.1983) (citation omitted)). "`[A]n ambiguity is not of itself created simply because the parties differ as to the interpretation of the [will].'" Id. 1997 SD 125, ¶ 20, 570 N.W.2d at 31. (quoting City of Watertown v. Dakota, Minnesota & Eastern RR Co., 1996 SD 82, ¶ 21, 551 N.W.2d 571, 576 (quoting Johnson v. Johnson, 291 N.W.2d 776, 778-79 (S.D.1980))). "This [c]ourt reviews [the interpretation of] a will de novo, with no deference given to the trial court's interpretation." Id. (citing In re Estate of Bol, 429 N.W.2d 467, 470 (S.D.1988)). "All the words and provisions appearing in [a] will must be given effect as far as possible, and none should be cast aside as meaningless." Id. (quoting In re Estate of Bock, 85 S.D. 113, 177 N.W.2d 734, 735 (S.D. 1970)). Extrinsic evidence is admissible to clarify any ambiguity. In re Estate of Brown, 559 N.W.2d 818, 822 (ND 1997); In re Estate of Rogers, 473 N.W.2d 36, 39 (Iowa 1991).

[¶ 11.] The third clause in John's will, as set forth above, names each individual followed by their relationship to John. Olsons and Hollisters are referenced as follows: "friends, Douglas Olson and Fern Olson, and my friends, William Hollister and Shirley Hollister...." Each spouse is named as an individual. They are not referred to as "Mr. and Mrs. Olson" nor as "William and Shirley Hollister."

[¶ 12.] The clause contains other language to support the position that John intended that his estate be divided sixteen ways versus fourteen ways. After naming all sixteen individuals, the clause provides that they should receive his property "in equal shares, share and share alike. That should any of the individuals above named predecease me, then their share of my estate shall go to their [descendant's] surviving."

[¶ 13.] First, John refers to his friends as individuals. Second, he requests that they receive his property "in equal shares, share and share alike." See In re Estate of Nagl, 408 N.W.2d 768, 771 (Iowa Ct. App.1987)

(holding that the language "equally share and share alike" indicates an intention to make a per capita distribution or an equal division among the number of individuals named). Third, he states that if one individual predeceases him, his or her share "shall go to their [descendants] surviving." In this regard, it is important to point out that married couples may have different descendants.

[¶ 14.] We determine that the testator's intent is clearly expressed within the four corners of the document. We are bound by the unambiguous language of the will. Therefore, extrinsic evidence is not needed. However, even the extrinsic evidence supports our decision.

[¶ 15.] Compare the language used by John in his prior will, which was executed in 1985:

I. To my friends, Douglas and Fern Olson, of Newell, South Dakota, or the survivor of them, if either predecease me....

J. To my friends, William or Shirley Hollister, of Redig, South Dakota, or the survivor of them, if either predece[a]ses me....

It is undisputed that John, in his 1985 will, treated these married parties as one unit and not as individuals.² If John intended to continue treating the married parties as one unit, he could have used the same language. However, John materially altered the language in his 1990 will. He changed the word "or" to "and" indicating an intention that each spouse be treated individually. He also provided both the first and last name of each spouse, rather than both of the spouses' first names and only one last name. He also eliminated the words "or the survivor of them," all of which supports the argument that he intended to give each of them an equal share instead of treating the married couple as a unit, as he did in 1985.

[¶ 16.] During oral argument, Frank's attorney acknowledged that he prepared the 1990 will. As attorney for Frank, the personal representative of the estate, the attorney did not testify to the intention of John, despite the fact that he may be the sole surviving witness able to testify to John's intentions. As an attorney prosecuting the case, he could not testify and continue as an attorney under the Rules of Professional Conduct. In other words, he can not testify to the merits of the issue and continue as an attorney in the case.³

[¶ 17.] In South Dakota, we recognize and use the "adverse inference rule." This rule provides that if a party has evidence under its control and does not present that evidence, an inference may be drawn that the evidence would not support that party's claim....