Rowett v. McFarland, 15061

• Citation: 394 N.W.2d 298
• Decision Date: 04 November 1986
• Docket Number: No. 15061,15061
• Parties: Sidney W. ROWETT, Elsie E. Rowett Kosnoski, and Ethel L. Posch, Plaintiffs and Appellants, v. Gregor B. McFARLAND, David A. McFarland, First Federal Savings & Loan Association, Rapid City, South Dakota, United States of America (Farmers Home Administration), and Dave Jolley, d/b/a Vador Funds, Defendants and Appellees, v. Kenneth D. SNYDER, E. Dean Snyder, and Kay E. Snyder, Defendants and Third Party Plaintiffs and Appellees, v. Delores M. McFARLAND, Third Party Defendant and Appellee, and Kenneth D. SNYDER, E. Dean Snyder, Kay E. Snyder, Gregor B. McFarland, David A. McFarland, and First Federal Savings & Loan Association, Defendants and Third Party Plaintiffs and Appellees, v. John A. ROWETT, Harold Rowett, Grace Ries, Freda Nelson, the Unknown Heirs at Law, Devisees, Legatees, Administrators and Creditors of Raymond D. Rowett a/k/a Ray Rowett, and Frances Rowett, both deceased, the Heirs, Devisees, Legatees, Administrators and Creditors of any of Said Third Party Defendants Who May be Deceased, all Persons Unknown Who Have or Claim to Have any Interest or Estate in or Lien or Encumbrance Upon the Premises Described in the Third Party Complaint, and the State of South Dakota and the Department of Revenue of the State of South Dakota, Third Party Defendants.
• Court: Supreme Court of South Dakota

Page 298

394 N.W.2d 298

Sidney W. ROWETT, Elsie E. Rowett Kosnoski, and Ethel L.

Posch, Plaintiffs and Appellants, v. Gregor B. McFARLAND, David A. McFarland, First Federal

Savings & Loan Association, Rapid City, South Dakota, United

States of America (Farmers Home Administration), and Dave

Jolley, d/b/a Vador Funds, Defendants and Appellees, v. Kenneth D. SNYDER, E. Dean Snyder, and Kay E. Snyder, Defendants and Third Party Plaintiffs and Appellees, v. Delores M. McFARLAND, Third Party Defendant and Appellee, and Kenneth D. SNYDER, E. Dean Snyder, Kay E. Snyder, Gregor B.

McFarland, David A. McFarland, and First Federal

Savings & Loan Association, Defendants and Third Party Plaintiffs and Appellees, v. John A. ROWETT, Harold Rowett, Grace Ries, Freda Nelson, the

Unknown Heirs at Law, Devisees, Legatees, Administrators and

Creditors of Raymond D. Rowett a/k/a Ray Rowett, and Frances

Rowett, both deceased, the Heirs, Devisees, Legatees,

Administrators and Creditors of any of Said Third Party

Defendants Who May be Deceased, all Persons Unknown Who Have

or Claim to Have any Interest or Estate in or Lien or

Encumbrance Upon the Premises Described in the Third Party

Complaint, and the State of South Dakota and the Department

of Revenue of the State of South Dakota, Third Party Defendants.

No. 15061.

Supreme Court of South Dakota.

Argued Feb. 10, 1986.

Decided Oct. 1, 1986.

Rehearing Denied Nov. 4, 1986.

George A. Bangs, Bangs, McCullen, Butler, Foye & Simmons, Rapid City, for plaintiffs and appellants.

James H. Wilson, Wilson, Olson, Goodsell & Nash, Rapid City, for defendants and appellees (McFarlands).

Keith R. Smit, Morman, Smit, Shepard, Hughes & Wolsky, Sturgis, for defendants and appellees (First Federal).

Ted L. McBride, Asst. U.S. Atty., Rapid City, for defendant and appellee (U.S. and Farmers Home Admin.).

David E. Morrill and Timothy L. Thomas, Morrill, Hansen, Hubbard & Brown, Rapid City, for defendants and third party plaintiffs and appellees (Snyders).

HERTZ, Acting Justice.

Rowetts appeal from the trial court's entry of summary judgment in favor of appellees McFarland, et al. We reverse and remand.

Facts

This appeal concerns the determination of the consistently troubling question of whether a remainder is vested or contingent. In assessing case authority from foreign jurisdictions, the only conclusion which may be safely entertained is that the opinions are in conflict.

The focal point of this action is approximately 3,000 acres of real property located in Meade County, South Dakota. The conflict arises from its disputed ownership. Ewell Hanks (Hanks), owned this land and referred to it as the "home place." Hanks died on April 25, 1936. By paragraph six of his Last Will and Testament dated December 17, 1935, Hanks gave his wife, Lena Hanks, a life estate in the "home place" for her lifetime, or until she should remarry, and without power of sale. Hanks disposed of the remainder of this property by paragraph seven of the will, which sets forth the following:

SEVENTH: That upon the death of my said wife, without issue, or if she should re-marry, at the time of her re-marriage, all of the said land herein referred to as "approximately 3000 acres belonging to my home place" shall revert to my estate and shall be divided equally between my son, Harvey Hanks, and my daughter, Frances Rowett, or their heirs.

A Decree of Distribution for the Ewell Hanks estate was entered by the Meade County Court on November 27, 1937. This decree restates the will in its entirety, and thus reaffirms the life estate in Lena Hanks. It also adopts paragraph seven stated above, however, the last phrase reads, "or to their heirs", rather than "or their heirs", as was written in the will. ¹ (emphasis added).

Lena Hanks had no children by Ewell Hanks and she never remarried. She died on November 3, 1983.

At the time of his death, Hanks left two surviving children: Harvey Hanks (Harvey) and Frances Rowett (Frances). Harvey died on April 13, 1942. The Decree of Distribution entered in connection with his estate distributed Harvey's one-half remainder interest in the "home place" to Solomon Wartti and to attorney H.F. Fellows (Fellows), an assignee of Wartti.

Frances and her husband Raymond (Ray) Rowett conveyed her remainder interest in the "home place" to George McFarland by warranty deed dated December 28, 1953, for the sum of $8,000. Frances died intestate on October 27, 1975, and left the following heirs: her husband Ray, and her children, appellants Sidney W. Rowett, Elsie E. Rowett Kosnoski and Ethel L. Posch (Rowetts). Frances' estate was not probated.

Ray died intestate February 10, 1980, and left as his heirs the three appellants, and four other children from a previous marriage. These four children were brought into the action as third party defendants after their existence was discovered during the taking of the Rowetts depositions. Ray's estate was not probated.

Through a series of conveyances, Fellows and another attorney, Percy H. Helm (Helm), owned as assignees Harvey's undivided one-half remainder interest in the "home place" which they sold to George McFarland by contract dated December 23, 1953. After abstracts of title showed the title to be free, clear, and merchantable, Fellows, Helm, and their respective spouses conveyed their interest in the "home place" by warranty deed to George McFarland on January 3, 1955.

George McFarland conveyed his interest in the "home place" to appellee David A. McFarland ² on October 4, 1976. Lena Hanks and her son, Lloyd Marcotte, a lessee of the "home place", quit claimed their interest in the "home place" to appellees Gregor B. McFarland ² and David A. McFarland on October 29, 1976. David A. McFarland and his wife, Delores, ² sold and conveyed their interest in the subject property to the appellees Snyder ² on July 9, 1982.

On September 25, 1983, Snyder received a letter from one of the Rowetts which indicated a possible claim of ownership in the "home place", which Snyder had purchased some fourteen months earlier. This litigation followed.

Initially, Rowetts prayed for a judgment quieting title to their undivided one-half interest in the "home place." McFarlands denied the validity of Rowetts claim and requested the quieting of title to the one-half interest in themselves. Certain additional parties were joined who are not material to this discussion. Both sides moved for summary judgment.

In granting McFarlands motion for summary judgment, the trial court determined that paragraph seven of Hanks' will was ambiguous. As such, it recognized the presumption of vesting unless clearly designated otherwise, and held that paragraph seven vested the remainder interest in the "home place" to Harvey Hanks and Frances Rowett as of the death of Ewell Hanks. Rowetts appeal to this court.

Claims of the Parties

Rowetts claim ownership of an undivided one-half interest in the "home place" by virtue of paragraph seven in Hanks' will. They contend that this provision unambiguously created a life estate in Lena Hanks, upon whose death, a contingent remainder passed to their mother, Frances Rowett, or if she failed to survive the life tenant, then to her heirs who take the share their mother would have taken if living. (emphasis added). Rowetts contend that Frances' interest, at most, was vested subject to divestment, in the event she predeceased Lena Hanks. Therefore, Rowetts claim that their mother, as well as Harvey Hanks, conveyed nothing to the McFarlands because the remaindermen had no vested interest in the "home place."

McFarlands argue that paragraph seven's use of the phrase "or their heirs" was ambiguous because Hanks failed to use any specific words of survivorship or a time reference, to provide for the event of the remaindermen predeceasing the life tenant. They claim that the ambiguity, coupled with the presumption of vesting, created an indefeasibly vested remainder in Harvey Hanks and Frances Rowett upon the death of Ewell Hanks. As such, McFarlands contend that the respective deeds from Lena Hanks, Frances (and Ray) Rowett, and the assignees of Harvey Hanks, resulted in a complete fee title to the McFarlands, and ultimately, the Snyders, despite the fact that Harvey and Frances predeceased Lena Hanks. McFarlands further assert that any claims of Rowetts are barred by marketable record title and the principle of equitable estoppel.

The issues will be separately stated and so treated.

I WHETHER PARAGRAPH SEVEN UNAMBIGUOUSLY CREATED A CONTINGENT REMAINDER IN THE HEIRS OF FRANCES ROWETT?

Were Frances and Harvey's ³ interests vested remainders as claimed by the McFarlands, or were they contingent remainders, or at most, vested subject to divestment as claimed by the Rowetts? The resolution of this question turns on the application of the following guiding principles.

The process of will construction has as its sole purpose the discovery of the testator's intent. Briggs v. Briggs, 73 S.D. 500, 506, 45 N.W.2d 62, 65 (1950); SDCL 29-5-1. For it is the testator's intention which is used as a polestar to guide in the interpretation of all wills, and, when ascertained, effect will be given to it unless it violates some rule of law, or is contrary to public policy. Tiffany v. Thomas, 190 S.E. 101, 103 (Va.1937). "In ascertaining this intention the language used, and the sense in which it is used by the testator, is the primary source of information, as it is the expressed intention of the testator which is sought." Id. If that intention is clearly manifested by the language of the will, it is the duty of this court to declare and enforce it. Briggs, 73 S.D. at 506, 45 N.W.2d at 65. "If after its language is so considered doubt remains as to the meaning the testator sought to express, his intention will be determined by reconsidering his entire language and the circumstances surrounding the making of the will in connection with established canons of...