Olson's Estate, Matter of

• Decision Date: 15 October 1982
• Docket Number: No. 13580,13580
• Parties: In the Matter of the ESTATE OF George OLSON, aka George M. Olson, Deceased. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 711

332 N.W.2d 711

In the Matter of the ESTATE OF George OLSON, aka George M.

Olson, Deceased.

No. 13580.

Supreme Court of South Dakota.

Considered on Briefs Oct. 15, 1982.

Decided April 27, 1983.

Brent A. Wilbur of May, Adam, Gerdes & Thompson, Pierre, for appellants Beneficiaries Olsons.

Wally Eklund of Johnson, Eklund & Davis, Gregory, for appellees Kaltsulas and Nachtigall.

WOLLMAN, Justice.

This is an appeal from an order construing the will of George Olson, deceased, and directing the co-executors to seek a recoupment of excess distributions paid to certain beneficiaries. We affirm.

Article Eleven of the will makes specific bequests in the amount of $15,000.00 to each of the decedent's seven nephews, Wilbur, Delwyn, Glen, Robert, Duane, Gene, and Vernon Olson.

Article Twelve of the will devises certain real property to nephews, Duane, Wilbur, and Robert Olson, subject to a lien in favor of the estate in the amount of $400,000.00. This article also sets forth terms and conditions under which the devisees are entitled to receive the real property.

Article Thirteen of the will provides:

I give, devise and bequeath all the rest, residue and remainder of my property, be it real, personal or mixed, of every kind and character, whether now owned or hereafter acquired, and wheresoever situated, together with the proceeds from Article Twelve above, to the following named persons in the amounts indicated: ...

Listed as beneficiaries under this provision are the seven nephews named above, together with five of decedent's nieces, each of the beneficiaries being given a one-twelfth share.

Article Fourteen of the will provides:

I direct that the bequest given to any beneficiary under this Will in Article Eleven and Article Thirteen shall be diminished to the extent that said beneficiary receives funds from a Savings Certificate or Certificate of Deposit which I held jointly with said beneficiary at the date of my death. The additional funds available for distribution to other beneficiaries by virtue of the operation of the provisions of this Article shall be divided equally among the other beneficiaries in Article Thirteen.

At the time of his death, George Olson owned jointly held certificates of deposit totaling $189,131.90 with the seven nephews named in Article Eleven. These certificates ranged in amount from $48,265.52 with Delwyn Olson to $10,353.60 with Vernon Olson.

Duane, Wilbur, and Robert Olson were named in the will as co-executors. On April 17, 1980, a partial distribution was made from the estate to the beneficiaries named in Articles One through Five and Eight through Ten of the will. On May 15, 1980, the co-executors filed an intermediate accounting and a second petition for partial distribution, asking that a partial distribution be made to the beneficiaries named in Articles Eleven and Twelve of the will. Following a hearing on the petition, the circuit court entered an order authorizing the co-executors to pay the $15,000.00 bequests to each of the persons named in Article Eleven of the will.

On May 4, 1981, the co-executors filed a second intermediate accounting and a petition for a construction of Article Fourteen of the will. Following a hearing on the petition, the court entered the order appealed from, which determined that the beneficiaries named in Article Eleven are entitled to receive the $15,000.00 bequests set forth therein in addition to the shares that they are entitled to under Article Thirteen, subject to having the amounts received by way of jointly held certificates of deposit or savings accounts with decedent at the time of his death charged against the share which the beneficiaries would otherwise receive under the provisions of Articles Eleven and Thirteen. Further, the order directed the co-executors to seek recoupment from the seven nephews named in Article Eleven of the excess distributions paid under the second partial distribution in the total amount of $96,499.11, ranging in individual amounts from $15,000.00 from Delwyn, Glen, Wilbur, and Duane Olson, down to $10,353.60 from Vernon Olson. The trial court determined that the excess distributions should have been applied to the payment of the federal estate tax obligation, which was drawing interest at the rate of 12% per year, and therefore ordered that the excess distributions draw interest at the rate of 12% from October 10, 1980, until repaid to the estate. With the exception of Vernon Olson, the nephews named in Article Eleven have appealed from the order. The appellees are four of the nieces named in Article Thirteen, together with Vernon Olson.

Appellant's first contention is that the trial court should have ruled that Article Fourteen created an ambiguity in that its provisions render vague the otherwise clear provisions of Articles Eleven and Thirteen. Thus, appellants contend, the trial court should have granted their request to introduce evidence bearing on the testator's true intent.

Although SDCL 29-5-8 permits the introduction of extrinsic evidence in certain cases, ^* we have held that "[e]xtrinsic evidence as to the intention of the testator, whether circumstantial or otherwise, is admissible only when there is ambiguity or uncertainty upon the face of the will." In re Hurley's Estate, 61 S.D. 233, 237, 248 N.W. 194, 195 (1933).

SDCL 29-5-5 provides, "All the parts of a will are to be so construed in relation to each other, as, if possible, to form one consistent whole but where several parts are absolutely irreconcilable, the latter must prevail." Applying this statute, the trial court concluded in its memorandum opinion:

In viewing the will as a whole, the court determines that the...