Olson's Estate, Matter of, 13580

• Court: Supreme Court of South Dakota
• Writing for the Court: WOLLMAN
• Citation: 332 N.W.2d 711
• Parties: In the Matter of the ESTATE OF George OLSON, aka George M. Olson, Deceased. . Considered on Briefs
• Docket Number: No. 13580,13580
• Decision Date: 15 October 1982

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.

Page 712

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...