In re Hubert
| Decision Date | 07 December 2022 |
| Docket Number | 29843-a-SRJ |
| Citation | 2022 S.D. 73 |
| Parties | ESTATE OF BONNIE JEAN HUBERT a/k/a BONNIE JEAN PEASE, Deceased. |
| Court | South Dakota Supreme Court |
2022 S.D. 73
ESTATE OF BONNIE JEAN HUBERT a/k/a BONNIE JEAN PEASE, Deceased.
No. 29843-a-SRJ
Supreme Court of South Dakota
December 7, 2022
CONSIDERED ON BRIEFS AUGUST 30, 2022
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT BROWN COUNTY, SOUTH DAKOTA THE HONORABLE GREGORY C. MAGERA Judge
BRIAN L. UTZMAN of
Smoot & Utzman, P.C.
Rapid City, South Dakota
Attorneys for appellant Douglas D. Hubert
WILLIAM D. GERDES of
Gerdes & McNeary, P.C.
Aberdeen, South Dakota
Attorneys for appellees Lynn
Schock and Lisa Schock.
JENSEN, Chief Justice
[¶1.] Bonnie J. Pease, also known as Bonnie J. Hubert, died leaving a handwritten holographic will (Will). This Court held in Estate of Hubert, 2016 S.D. 74, 887 N.W.2d 80 (Hubert I) that the Will appointed Lynn and Lisa Schock (Schocks) as the personal representatives and gave them Bonnie's entire estate, subject to three conditions. On remand, the circuit court declared that the Schocks satisfied the conditions of the Will and approved the Schocks' final proposed distribution of Bonnie's estate (Estate).[1] Bonnie's brother, Douglas Hubert, appeals, arguing that the circuit court erred in finding that the Schocks had fulfilled one of the conditions of the Will. We affirm.
Facts and Procedural History
[¶2.] Bonnie died from health conditions while incarcerated at the South Dakota Women's Penitentiary (SDWP) on August 4, 2013. She executed the Will approximately seven months before her death. The Will disinherited all of Bonnie's family members except for Douglas. The gifting clause of the Will 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
It is the final phrase of the gifting clause, "making some arrangements for litigation start monies to correct injustices at SDWP in Pierre" (Litigation Condition), that is at issue in this appeal.
[¶3.] With respect to the Litigation Condition, the Will further explained that "I also feel a need to help prevent the [egregious] wrongs done by the State of South Dakota, et. al. I hope to provide some recoverable monies to the ACLU of South Dakota to help with that endeavor and/or to provide funding so my estate/my brother Douglas Dean Hubert can recover what he would have obtained but for my wrongful death and the many other wrongful acts of S.D. State et. al."[2]
[¶4.] The Schocks were long-time friends of Bonnie. Bonnie lived with the Schocks when she did not have a home. Additionally, while Bonnie was incarcerated, the Schocks handled Bonnie's financial matters and cared for her bird, Cocky. The Schocks continued to care for Cocky after Bonnie's death.
[¶5.] In the proceedings leading up to the appeal in Hubert I, the circuit court determined that the Will did not give the Schocks anything, and instead only appointed the Schocks as co-personal representatives. The circuit court found that the Will directed the Schocks to provide monies for Cocky's care and to fund litigation against the State, and once they completed those two conditions, they were required to distribute the entire residual Estate to Douglas.
[¶6.] The Schocks appealed the circuit court's order, and this Court reversed and remanded the case back to the circuit court. Hubert I, 2016 S.D. 74, ¶ 1, 887 N.W.2d at 81. We held in Hubert I that the gifting language of the Will was unambiguous and "unequivocally 'give[s] all' of [Bonnie's] 'belongings' to Schocks
'contingent on' them 'giving a share' to Douglas, providing for 'Cocky's new keeper mom search, and making some arrangements for litigation start monies.'" Id. ¶ 8, 887 N.W.2d at 83.
[¶7.] At the initial hearing on remand, the parties agreed that the Schocks could dispose of the personal property and pay the expenses of administration of the Estate. The Schocks also informed the court that they had cared for Cocky since Bonnie's death and intended to continue doing so.
[¶8.] However, the parties were not in agreement concerning the amount of the bequest to Douglas or the Litigation Condition. The Schocks proposed that Douglas should receive one fourth of the Estate, while Douglas asserted that he should receive at least half of the Estate. Douglas argued that the Litigation Condition was not capable of execution because Bonnie did not indicate the nature of the cause of action and the statute of limitations for any alleged claim had already expired. He objected to the Estate spending any money to pursue litigation against the State because he believed that it would be a waste of the Estate's assets and did not "think that [was] worthwhile to spend [E]state resources on."[3] The Schocks, however, suggested that the American Civil Liberties Union (ACLU) should be contacted about the funding of potential litigation described in the Will.
[¶9.] The court authorized the Schocks "to inquire further to see whether the ACLU is willing to pursue [a lawsuit,] . . . and make reasonable efforts to accomplish the goals of Ms. Pease." The court explained that the Schocks were not to pursue futile causes of actions, but rather, if the ACLU determined that there
were no viable causes of action, the Estate should not waste any resources on pursuing litigation. The court further instructed that if the Schocks believed that Bonnie intended "to pursue a more broad recompense . . . for the conditions at [SDWP]" and they wanted to pursue litigation beyond contacting the ACLU, they must present a reasonable plan for doing so.
[¶10.] In January 2019, Douglas filed a proposed distribution that provided for the entire Estate to be distributed to him. The Schocks objected, and the court held a hearing to address Douglas's proposed distribution. Douglas argued that the entire Estate should be distributed to him because the Schocks failed to take any steps to fulfill the Litigation Condition imposed by the Will. However, Douglas did not suggest another plan to fulfill the Litigation Condition. The court denied Douglas's proposed distribution and directed the Schocks to present a plan to fulfill the Litigation Condition within two months.
[¶11.] The Schocks filed a notice of proposed action and distribution of assets on June 16, 2020. The Schocks proposed selling the real property, paying Douglas one-fourth of the Estate or $50,000, whichever was less, and paying the remaining balance to the Schocks. The Schocks further proposed paying nothing to the ACLU "because the entity [did] not intend to pursue legal action[.]" They also agreed to continue to care for Cocky. Douglas objected, arguing that the Schocks failed to propose a plan for litigation against the SDWP as required by the Will and that the Schocks failed to give him his share of the Estate, which he asserted was the remaining balance of the Estate. Douglas also requested that the court remove the
Schocks as co-personal representatives for failing to timely satisfy the conditions of the Will since a 2016 circuit court order that predated Hubert I.
[¶12.] At the hearing on the Schocks' proposed distribution, the Schocks claimed that they had contacted the ACLU to inquire about litigation against the SDWP and...
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