Estate of Hubert

#29843-a-SRJ
2022 S.D. 73

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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ESTATE OF BONNIE JEAN HUBERT a/k/a
BONNIE JEAN PEASE, Deceased.

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APPEAL FROM THE CIRCUIT COURT OF
THE FIFTH JUDICIAL CIRCUIT
BROWN COUNTY, SOUTH DAKOTA

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THE HONORABLE GREGORY C. MAGERA
Judge

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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.

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CONSIDERED ON BRIEFS
AUGUST 30, 2022
OPINION FILED 12/07/22
#29843

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.

1. The Estate consisted of 80 acres of land valued at approximately $140,000, a
bank account, several vehicles, and Bonnie’s pet bird, Cocky.
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[¶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 SD 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

2. In 2015, Lisa testified that Bonnie believed that the State provided her with
poor medical treatment during her incarceration. Lisa indicated there was
no evidence that Bonnie’s death was a result of any medical maltreatment or
wrongful conduct by the State and that Bonnie did not further substantiate
the basis for her alleged claim against the SDWP.
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‘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

3. Douglas hired different counsel after this hearing.
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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

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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 informed the ACLU that they had potential funding for such litigation.

The Schocks represented that the ACLU explained it had no pending litigation

against the SDWP and did not anticipate commencing such litigation. Based upon

Douglas’s demand for documentation of the ACLU’s decision, the court ordered the

Schocks to obtain an affidavit from the ACLU verifying that the Schocks had

informed the ACLU of the Will’s Litigation Condition, the availability of startup

money, and the value of the Estate. The circuit court also directed Douglas to

propose an alternative plan for litigation if he believed that there was a cause of

action against the SDWP that should be pursued by the Schocks.

[¶13.] Following the hearing, the Schocks submitted an affidavit from the

Executive Director of the ACLU for North Dakota, South Dakota, and Wyoming.

The director confirmed in the affidavit that she was contacted by the Schocks about

the Litigation Condition in the Will and that the Schocks informed her that the net

worth of the Estate was approximately $225,000. The director explained that the

ACLU did not presently have any pending litigation against the SDWP and based

on the expense of litigation against prisons and the limited likelihood of success, the

ACLU did not, at the present time, intend to pursue any litigation against the

SDWP. Douglas did not respond to the ACLU affidavit.

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[¶14.] The court subsequently entered an order providing that Douglas could

purchase the real property at its appraised value less $50,000. Alternatively, the

court permitted the Schocks to sell the real property at auction; pay remaining

liens, debts and fees; pay Douglas the lesser of one-fourth of the Estate or $50,000;

and pay the remaining balance of the Estate to the Schocks. The order also

provided that no monies would be distributed to the ACLU, and directed the

Schocks to continue to care for Cocky. 4

[¶15.] On October 7, 2021, the Schocks filed a petition to close the Estate.

The Schocks stated that they had sold the real property at auction, they had paid all

claims and expenses of administration of the Estate, the Estate exceeded $200,000

after the payment of those expenses, and they therefore distributed $50,000 to

Douglas. The petition stated that the balance of the net proceeds would be

distributed to the Schocks. Douglas objected and argued that the Schocks failed to

satisfy the Litigation Condition and any gift to them had lapsed.

[¶16.] Following a hearing, the court entered findings of fact and conclusions

of law and an order finding the Schocks had fulfilled all three conditions of the Will,

directed the Schocks to distribute the Will according to the circuit court’s 2020 order

approving the Schocks’ proposed distribution, and granted the petition to close the

Estate. The court found that the Schocks had made reasonable efforts to satisfy the

Litigation Condition and further noted that Douglas had failed to offer an

alternative plan to satisfy the Litigation Condition.

4. Douglas attempted to appeal this order, but this Court dismissed the appeal
for failing to timely serve notice of the appeal on all required parties under
SDCL 15-26A-4(3).
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[¶17.] Douglas appeals, arguing that the circuit court erred in finding that

the Schocks fulfilled the Litigation Condition.

Analysis

[¶18.] “We review a circuit court’s interpretation of a will de novo.” In re

Bickel, 2016 S.D. 28, ¶ 28, 879 N.W.2d 741, 750. This Court’s “goal ‘in interpreting

a will is to discern the testator’s intent. If the intent is clear from the language

used, that intent controls.’” Novak v. Novak, 2007 S.D. 108, ¶ 12, 741 N.W.2d 222,

226 (citation omitted). “We limit our examination to what the testator meant by

what he said, not what we think he meant to say.” Bickel, 2016 S.D. 28, ¶ 28, 879

N.W.2d at 750. “In determining testamentary intent, all words and provisions

appearing in a will must be given effect as far as possible, and none should be cast

aside as meaningless.” In re Estate of Kesling, 2012 S.D. 70, ¶ 7, 822 N.W.2d 709,

711 (citation omitted). Regarding the circuit court’s finding that the Litigation

Condition was fulfilled, “[a] circuit court’s findings of fact will be upheld ‘unless they

are clearly erroneous.’” Estate of Fox, 2019 S.D. 16, ¶ 12, 925 N.W.2d 467, 471

(quoting In re Estate of Flaws, 2016 S.D. 60, ¶ 19, 885 N.W.2d 336, 342–43).

[¶19.] While neither party claims that the Litigation Condition is per se

ambiguous, in their arguments as to whether the condition has been satisfied, they

disagree concerning its breadth. Douglas argues that the circuit court erred by

determining that the Litigation Condition was satisfied because the Schocks

contacted the ACLU and provided an affidavit from the ACLU stating that it did

not intend to pursue litigation against the SDWP. He asserts that the Schocks

should have contacted other lawyers or public interest groups and used Estate

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funds to solicit efforts to commence litigation against the SDWP as expressed in

Bonnie’s Will. The Schocks respond that they fulfilled the Litigation Condition

because they complied with the language of the Will and the circuit court’s

directions to explore potential litigation with the ACLU. The Schocks argue that

there was no potentially meritorious action to be taken against the SDWP and the

ACLU’s decision not to proceed with litigation against the SDWP was effectively a

disclaimer of the bequest under SDCL 29A-2-801. 5

[¶20.] We established in Hubert I that the gifting clause contains mandatory

language conditioning the gift to the Schocks as follows: “I give all my belongings to

Lisa and Lynn Schock contingent on them . . . making some arrangements for

litigation start monies to correct injustices at SDWP in Pierre.” See Hubert I, 2016

S.D. 74, ¶¶ 2, 8, 887 N.W.2d at 81, 83 (emphasis added) (holding that the Will

unambiguously gives Bonnie’s property to the Schocks subject to the stated

conditions). However, Hubert I did not interpret the specific language of the

Litigation Condition. This language conditioning the gift to the Schocks on making

“some arrangements for litigation start monies to correct injustices at SDWP” does

not specify the alleged wrongs that Bonnie believed the Schocks should pursue or

the amount of money to be used toward this endeavor. The phrase “some

5. SDCL 29A-2-801 provides that “[a]ny person who may be entitled to receive
any property or beneficial interest . . . under any will . . . shall have the right
to disclaim irrevocably the whole or any part of such property or beneficial
interest.” See also 38 Am. Jur. 2d Gifts § 28 (2022) (“[A] gift ordinarily can be
completed only if it is accepted by the donee; the law forces no one to accept a
gift.”). Bonnie expressed some intention to use Estate funds to encourage the
ACLU to pursue litigation against the SDWP, but the Litigation Condition in
the gifting clause did not actually gift any monies to the ACLU. Therefore,
there was no gift for the ACLU to disclaim under the Will.
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arrangements” and the lack of specificity in the gifting clause demonstrate that the

Will provided the Schocks with discretion to determine how to use funds for

pursuing litigation against the SDWP. See In re Estate of Seefeldt, 2006 S.D. 74,

¶ 17, 720 N.W.2d 647, 653 (“It is also significant that . . . the word ‘suggest’

provided [the personal representative] with discretion in choosing the appraisers.”).

[¶21.] Bonnie’s intention to provide the Schocks with discretion in deciding

how to apply the Litigation Condition is further demonstrated by precatory

language in the Will, which stated “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 SD State et. al.”

[¶22.] Precatory language in a will “advises or recommends a disposition but

leaves the actual disposition of the property within the discretion of another [and] is

not testamentary in character.” Matter of Nelson’s Estate, 274 N.W.2d 584, 587

(S.D. 1978). When language is merely precatory, “[w]ords in a will . . . may be used

in resolving doubts in other parts of the will; but they do not amount to a

testamentary disposition, and do not control or alter express dispositions in the will,

unless it is apparent that it was the testator’s intention that such words of desire or

intention should be mandatory.” In re Wynea’s Estate, 40 S.D. 416, 167 N.W. 394,

395 (1918) (citation omitted). The language “I . . . feel a need” and “I hope to

provide some monies to the ACLU to help with that endeavor” is precatory and

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lacks any mandatory directive in terms of a specific action the Schocks were

required to take in fulfilling the Litigation Condition.

[¶23.] Douglas’s proposed reading of the Litigation Condition imposes duties

on the Schocks that are not present within the four corners of the Will. He argues

that the Schocks should have expended more resources or made further efforts to

pursue litigation against the SDWP. In response, the circuit court provided

Douglas an opportunity to present a plan to fulfill the Litigation Condition.

Douglas did not at any time present an alternative plan. More importantly, there is

no evidence, or even a suggestion, that the Estate had a potentially meritorious

claim against the SDWP. The Schocks’ actions under these circumstances were

sufficient to carry out the intentions expressed by Bonnie in the Litigation

Condition. The circuit court did not err in finding that the Schocks satisfied the

Litigation Condition of the Will with their efforts.

[¶24.] We affirm.

[¶25.] KERN, SALTER, and DEVANEY, Justices, and KLINGER, Circuit

Court Judge, concur.

[¶26.] KLINGER, Circuit Court Judge, sitting for MYREN, Justice, who

deemed himself disqualified and did not participate.

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