In Re the Estate of Laue

#25472-a-PER CURIAM

2010 S.D. 80

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

IN THE MATTER OF THE
ESTATE OF DORIS BERYLE LAUE

* * * *

APPEAL FROM THE CIRCUIT COURT
OF THE SEVENTH JUDICIAL CIRCUIT
CUSTER COUNTY, SOUTH DAKOTA

* * * *

HONORABLE JOHN J. DELANEY
Judge

* * * *

KENNETH G. CAMPBELL
Rapid City, South Dakota Special Administrator
and appellee.

DALE W. LAUE
Gilroy, California Pro Se Appellant.

* * * *

CONSIDERED ON BRIEFS
ON OCTOBER 4, 2010

OPINION FILED 10/18/10
#25472

PER CURIAM.

[¶1.] Dale Laue (Dale) appeals from the circuit court’s order for complete

settlement of the estate of Doris Laue (Doris). We affirm.

Facts and Procedural History

[¶2.] Doris, a widow and resident of Custer County, South Dakota, died

testate on February 8, 2004. She had three sons: Dale, Bryan, and Wayne. Wayne

predeceased Doris in 2000, leaving three children of his own living in California.

Wayne had been divorced and, at the time of his death, his property was placed in a

trust for the benefit of his three children. There were four co-trustees of the trust

including Wayne’s brother, Bryan.

[¶3.] When Doris died, she left a will dated March 29, 1982. The will left all

of her property to her husband, Richard or, if Richard predeceased her, to her three

children, “equally, each to share and share alike.” The will further provided that as

to any of her children who predeceased her, that child’s share of the estate should,

“descend to and vest in the children of my deceased child . . . equally.” The will

named Richard executor and, if Richard predeceased Doris, Dale and Wayne, in

turn, as successor executors.

[¶4.] Dale was granted letters as personal representative of Doris’s estate on

March 8, 2004. In late 2006, counsel for Wayne’s three children petitioned for

Dale’s removal as personal representative. A hearing was held and on December

22, the circuit court entered findings of fact, conclusions of law and an order

removing Dale as personal representative, converting the case to formal probate,

and appointing Kenneth Campbell (Campbell) special administrator of the estate.

-1-
#25472

[¶5.] Among grounds for Dale’s removal, the circuit court found that Dale

failed to fulfill a number of duties required of the personal representative,

particularly with regard to Wayne’s children. The court further found that Dale’s

“antagonistic attitude” toward Wayne’s ex-wife, Jodi, and conflicts with Wayne’s

family would likely foster endless litigation not in the best interests of the estate or

the heirs. Based upon these findings, the circuit court determined it in the best

interests of the estate to remove Dale as personal representative and entered its

order accordingly.

[¶6.] Following his appointment as special administrator, Campbell

proceeded to collect the estate’s assets, inventory the property, investigate potential

claims, and formulate a strategy for distribution to the heirs. In this process,

Campbell filed a series of petitions for authorization of certain actions including

permission to abandon potential estate claims against Wayne’s trust for a real

estate loan and some cemetery lots. A hearing was held on the petitions and orders

directing abandonment of the claims were entered. Dale petitioned to vacate these

orders and his petitions were denied.

[¶7.] In July 2007, Campbell filed a petition for confirmation of the estate’s

sale of 153 acres of real property in Custer County. The petition indicated an

auction sale for the real estate was scheduled for July 31, 2007. Dale moved to

enjoin the auction but his motion was denied. After the auction, Campbell filed a

supplemental petition for confirmation of the sale of the real estate indicating the

property was sold for over two and one-half million dollars (precisely $2,668,400).

The petition further indicated a closing date was scheduled for the sale on August

-2-
#25472

20, 2007. After a hearing, an order confirming the sale of the real estate was

entered.

[¶8.] Over the ensuing months, Campbell resolved various additional issues

pertaining to the estate, made several partial distributions of assets, and filed

interim and final accountings. On September 3, 2009, Campbell filed a petition for

complete settlement after formal probate proceedings, asserting there were no

additional matters pending and the estate was ready for closing. Dale objected on

several grounds including the estate’s abandonment of the claims against Wayne’s

trust and the court’s failure to compel responses to requests for admissions issued

by Dale during the course of the litigation. The petition for complete settlement

was heard on October 26, 2009. On November 31, the court entered its order for

complete settlement overruling Dale’s objections, distributing the remaining assets,

discharging the special administrator (Campbell), and declaring settlement of the

estate complete.

[¶9.] Dale appeals the circuit court’s order for complete settlement of the

estate, raising the following issues:

1. Whether the special administrator had power to sell the real
property of the estate.

2. Whether the special administrator was required to offset certain
indebtedness of Wayne’s trust to the estate against the
inheritance of Wayne’s three children.

3. Whether the special administrator breached his duty to inquire
into certain debts allegedly owed to the estate by Wayne’s trust.

4. Whether the circuit court had jurisdiction to compel answers to
Dale’s request for admissions.

Additional facts will be set forth as they pertain to these issues.

-3-
#25472

Standard of Review

[¶10.] This Court’s standard of review in estate cases is set forth in In re

Estate of Olson, 2008 S.D. 4, ¶ 8, 744 N.W.2d 555, 558:

This Court reviews a trial court’s findings of fact under the
‘clearly erroneous’ standard and overturns a trial court’s
conclusions of law only when the trial court erred as a matter of
law. Questions of law are reviewed de novo. “This Court
interprets statutes under a de novo standard of review without
deference to the decision of the trial court.”

(quoting Matter of Estate of O’Keefe, 1998 S.D. 92, ¶ 7, 583 N.W.2d 138, 139

(citations omitted)).

Analysis and Decision

[¶11.] 1. Whether the special administrator had power to sell the
real property of the estate.

[¶12.] In a succession of arguments, Dale challenges Campbell’s power as

special administrator to sell the real property of the estate.

Special Administrator’s General Power of Sale

[¶13.] Campbell was appointed special administrator under SDCL 29A-3-614

et seq. A special administrator has the powers of a general personal representative.

SDCL 29A-3-617. “[A] personal representative has the same power over the title to

property of the estate that an absolute owner would have” and “[t]his power may be

exercised without notice, hearing, or order of court.” SDCL 29A-3-711. “Except as

restricted or otherwise provided by the will,” a personal representative acting for

the “benefit of the estate” may dispose of land and sell the real property of the

estate. SDCL 29A-3-715(a)(6) & (23). Thus, Campbell had statutory power to sell

the real property of the estate.

-4-
#25472

[¶14.] Dale argues Doris’s will restricted the power to sell the real property of

the estate to the named executors and, therefore, Campbell had no such power. As

support for his argument, Dale relies on Olson in which this Court held that a

specific devise of real property in a will restricts a personal representative’s

statutory power of sale. 2008 S.D. 4, 744 N.W.2d 555. This, however, is a different

case than Olson. In Olson, this Court emphasized that the will provided for the

specific devise of the real property and did not otherwise provide for a power of sale

for the realty. See Olson, 2008 S.D. 4, ¶ 20, 744 N.W.2d at 561–62. Here, the will

did not provide for the specific devise of the real property and did otherwise provide

for a power of sale for the realty.

[¶15.] Doris’s will actually contained no specific devises. It was a simple

three page will that first directed payment of her funeral expenses and debts and

then bequeathed “all” of her property, both real and personal, to her husband

Richard. If Richard predeceased her, it bequeathed “all” of her property, both real

and personal, to their three children. This stands in contrast to the specific devise

of the real property to designated heirs in Olson and the separate devise of the

personal property to the same heirs via a residuary clause. See Olson, 2008 S.D. 4,

¶ 2, 744 N.W.2d at 557. It can also be contrasted with the specific devises of real

property described in In re Estate of Siebrasse where the will set forth separate

parcels of property to be distributed to each heir. 2002 S.D. 118, ¶ 9, 652 N.W.2d

384, 386. There were no similar devises of the realty in this case.

[¶16.] Also unlike Olson, Doris’s will did provide for a power of sale for her

real property, stating in pertinent part: “I further order and direct that any named

-5-
#25472

executor herein, shall have full power and authority to sell any and all real and

personal property without prior Court approval.” (Emphasis added). Similar

language is described as an unrestricted power of sale in Olson. 2008 S.D. 4, ¶ 21,

744 N.W.2d at 562. The Court cited authority in Olson noting that such clauses

reflect an intention by a testator to give the heirs all of the real estate, but subject

to the power of sale in the executors. Id. at n. 5 (citing Weinstein v. Hunter, 276

A.D. 471, 476, 96 N.Y.S.2d 1 (N.Y. App. Div. 1950)).

[¶17.] Based upon the absence of a specific devise of real property in Doris’s

will and the unrestricted power of sale over the real estate granted to her executors,

there is nothing in the will restricting the statutory power of sale over the realty

granted to Campbell by SDCL 29A-3-715(a)(6) & (23). Accordingly, Campbell had

power to sell the realty under those provisions.

Power of Sale of a Successor Administrator

[¶18.] SDCL 29A-3-716 provides in pertinent part that: “[A] successor

personal representative has the same powers and duties as the original personal

representative to complete the administration and distribution of the estate . . . but

the successor shall not exercise any power expressly made personal to the personal

representative named in the will.” Citing this statute, Dale argues that the power

of sale over the real property in her will was granted personally to the named

executors and, therefore, could not be exercised by a successor personal

representative such as Campbell.

[¶19.] The Supreme Court of Missouri considered whether a power of sale

was personal to executors named in a will in In re Estate of Basler v. Delassus, 690

-6-
#25472

S.W.2d 791 (Mo. 1985). The court noted that the will named coexecutors and an

alternate, that the clause conferring the power of sale did not mention any executor

by name, and that the clause’s clear intent was to permit its exercise by whatever

executor or executors happened to be serving. Id. at 795. Accordingly, the court

concluded the power of sale was not designed to be personal but ancillary to the

administration of the estate and exercisable by a successor fiduciary. Id.

[¶20.] Factors similar to those in Basler are present here. The will named

three potential executors. The separate paragraph of the will conferring the power

of sale over both the real and personal property did not mention any of these three

executors by name. The paragraph’s intent was clearly to permit the exercise of the

power of sale by whichever executor happened to be serving. Thus, the power of

sale was not designed to be personal, but ancillary to the administration of the

estate and, therefore, exercisable by a successor fiduciary such as Campbell.

Power of Sale as Affected by Devolution of the Property

[¶21.] Dale also argues that, upon Doris’s death, her real and personal

property devolved directly to her heirs under SDCL 29A-3-101, providing in

pertinent part: “Upon the death of a person, that person’s real and personal

property devolves to the persons to whom it is devised by will . . ..” However Dale

ignores language at the end of the sentence providing that the devolution is “subject

to . . . administration.” Id. Moreover, the opening sentence of the statute provides

that, “the rights of . . . heirs to the person’s property are subject to the restrictions

and limitations contained in this code to facilitate the prompt settlement of estates.”

Id. Thus, while the real property devolves at death, it devolves subject to the

-7-
#25472

personal representative’s statutory power to sell the real property as explicitly

granted by SDCL 29A-3-715(a)(6) & (23). Dale’s interpretation of the statute would

render the statutory power of sale meaningless, violating rules of statutory

construction. See Stratmeyer v. Stratmeyer, 1997 S.D. 97, ¶ 16, 567 N.W.2d 220,

223 (providing that statutes are to be considered as a whole as well as other

enactments relating to the same subject); Dakota Plains Ag Center, LLC v. Smithey,

2009 S.D. 78, ¶ 47, 772 N.W.2d 170, 185–86 (stating that this Court must read

statutes with the underlying assumption that the legislature did not insert

surplusage into its enactments).

Power of Sale as Affected by Requirements of Distribution in Kind or for
Partition of Real Property

[¶22.] SDCL 29A-3-906(a) requires assets of the estate to be distributed in

kind “to the extent possible . . ..” Under SDCL 29A-3-906(b), the personal

representative must deliver a proposed distribution to the distributees, giving them

fourteen days to object on the basis of the kind or value of the assets to be received.

Dale argues that lack of compliance with the requirement of in kind distribution

and with the notice to object provision of the statute deprived Campbell of the

power of sale over the real property.

[¶23.] The North Dakota Supreme Court has reviewed the requirements of

that state’s counterpart to SDCL 29A-3-906(a) and held that, while the provision

expresses a “preference” for in kind distributions, it allows distribution of the

residuary of the estate in “any equitable manner” and, therefore, “grants more

authority to the court, not less.” Estate of Zimbleman, 539 N.W.2d 67, 72-73 (N.D.

1995) (citing Uniform Probate Code § 3-906 cmt. (1998) in noting that the section

-8-
#25472

establishes a preference for distribution in kind, but directs the personal

representative to convert assets to cash only where there is a special reason for

doing so). See also Estate of Haynes, 594 A.2d 1112 (Me. 1991) (holding under § 3-

906 that a probate court’s discretion in distributing estate assets is broad and may

include physical partition, sale, distribution in kind, or some combination of these

remedies). In Zimbleman, the North Dakota court found no error of law in the

lower court’s order to sell real property where that court found distribution in kind

was neither practicable nor workable, and was not desired by the heirs. Based upon

similar findings by the circuit court here, there was no error in its order confirming

the sale of the real property.

[¶24.] With regard to the notice to object requirement of SDCL 29A-3-906(b),

Dale was given notice of Campbell’s intention to sell the real property and actually

did object to the sale by seeking to enjoin it and, later, at a hearing on his

objections. The hearing was held on August 20, 2007, when the closing on the sale

of the real property was still contingent on court approval and could have been

stopped if the court so ordered. Dale’s objections to the sale were largely based on

allegations of lack of compliance with SDCL 29A-3-911 concerning the partition of

real property to be distributed to the heirs of an estate. However, the real property

here was not partitioned among the heirs, but was simply sold to a third party as

permitted by SDCL 29A-3-906(a). Thus, lack of compliance with partition

requirements posed no barrier to the court’s approval of the sale.

-9-
#25472

[¶25.] Based upon the foregoing, Campbell’s power of sale was not limited by

the requirements of distribution in kind or for the partition of real property in an

estate.

[¶26.] 2. Whether the special administrator was required to offset
certain indebtedness of Wayne’s trust to the estate against the inheritance
of Wayne’s three children.

[¶27.] Dale argues that because Wayne’s three children were beneficiaries of

Wayne’s trust as well as heirs of Doris’s estate, Campbell was required to offset

mortgage debt the trust allegedly owed to the estate against the inheritance of

Wayne’s three children. In support of his argument, Dale cites SDCL 29A-3-903

which requires “noncontingent indebtedness” of a successor to the estate to be offset

against the successor’s interest in the estate.

[¶28.] Dale ignores the only evidence in the record concerning the mortgage

debt reflects that, if it existed at all, it was indebtedness owed by Wayne’s trust to

the estate, not Wayne’s children. The children were simply beneficiaries of the

trust. Generally, “the contracts of the trustee made in due course of performance of

his trust do not render the beneficiary liable to the creditor at law or in equity . . ..”

George Gleason Bogert, The Law of Trusts and Trustees § 721 (Rev. 2d ed. 1982).

See also Austin Wakeman Scott, The Law of Trusts § 274 (3rd ed. 1967) (stating

that, “[t]he beneficiaries of a trust are not subject to personal liability to third

persons on obligations incurred by the trustee in the administration of the trust.”);

Ovrevik v. Ovrevik, 527 S.E.2d 586, 590 (Ga. Ct. App. 2000) (holding that a trust is

responsible for its own expenses and neither a trustee nor a beneficiary is

personally liable on a judgment against a trust).

- 10 -
#25472

[¶29.] Dale offers no theory on how Wayne’s children, as beneficiaries of

Wayne’s trust, could be held personally liable to Doris’s estate for the mortgage debt

allegedly owed by the trust to the estate. Neither of the cases Dale cites in support

of this argument involved holding trust beneficiaries responsible for a trust’s debt to

an estate. See In re Estate of Fauskee, 497 N.W.2d 324 (Minn. Ct. App. 1993)

(where the debt resulted from two promissory notes executed by the beneficiary to

the decedent); Estate of Randeris v. Randeris, 523 N.W.2d 600 (Iowa Ct. App. 1994)

(where the beneficiary was indebted directly to the decedent). Accordingly, there is

no foundation for Dale’s claim that Wayne’s children had a noncontingent

indebtedness to the estate that was required to be offset against their interests in

the estate.

[¶30.] 3. Whether the special administrator breached his duty to
inquire into certain debts allegedly owed to the estate by Wayne’s trust.

[¶31.] The special administrator has “the duties . . . prescribed in the order

[of appointment].” SDCL 29A-3-617. The court’s order appointing Campbell special

administrator directed him to inquire into “the history and status of the debt of

Wayne Laue to his parents and the disposition of the cemetery lots in California.”

Dale argues Campbell failed to comply with this duty.

[¶32.] Campbell was appointed special administrator in December 2006. In

April 2007, he petitioned to forego potential claims to some real estate in California

and for the value of some cemetery lots in that state. The real estate claim was

related to Wayne’s parents’ sale of a home in California to Wayne. The parents

allegedly retained a mortgage on the home which Wayne later sold, using the

proceeds to purchase a different residence. Wayne allegedly retained the

- 11 -
#25472

outstanding debt to his parents in his divorce from his wife, Jodi. Significantly,

Campbell’s petition stated he had seen no evidence of a note or evidence of a right to

trace a note to the second residence or that any obligation existed on Jodi’s part.

Campbell also reported Dale’s brother, Bryan, believed it was his parents’ intention

to forgive the loan to Wayne.

[¶33.] Campbell identified a number of problems in attempting to pursue an

action on the alleged real estate claim including: lack of evidence; connecting the

loan to the second residence; expiration of the statute of limitations; and laches.

Campbell also expressed concerns over further delay in filing tax returns and the

cost and expense to the estate of pursuing an action in California. Based upon

these considerations, Campbell requested authorization to abandon any claims to

the California realty.

[¶34.] As to the cemetery lots, Campbell indicated they were transferred by

Wayne’s father, Richard, to Wayne in 2000, and were currently held by Wayne’s

trust. The estate’s claim to the lots was that Richard may have transferred them

involuntarily and without Doris’s consent in violation of California law. Campbell

also identified a number of problems in pursuing a claim on the lots including: that

the lots may not have been community property because Richard and Doris were

not California residents; Doris may have actually consented to the transfer;

expiration of the statute of limitations; laches; and Richard’s estate would be a

potential defendant in the action. Again, Campbell expressed concerns over the cost

and expense to the estate of pursuing an action in California when the lots were

- 12 -
#25472

valued at $2,500. Like the realty claim, Campbell requested authorization to

abandon any claims to the cemetery lots.

[¶35.] Campbell’s petitions were heard on April 30, 2007, and the court

entered orders the next month approving abandonment of the claims for the reasons

set forth in the petitions. The court found abandonment of the real estate claim was

in the best interests of the estate because of the cost of pursuing the matter in the

absence of any evidence of a note tracing the loan proceeds to the California realty. 1

The court also found it in the best interests of the estate to abandon the claim to the

cemetery lots because the costs of pursuing the claim would be substantially greater

than the $2,500 value of the lots.

[¶36.] Dale petitioned to vacate the circuit court’s orders approving

abandonment of the claims, raising a number of additional allegations concerning

the merits of the claims. Campbell reviewed the additional information provided by

Dale and continued to recommend abandonment of the claims, largely for the

reasons previously expressed. Dale’s petitions to vacate were heard in June 2007.

The court subsequently entered orders denying the petitions, finding the cemetery

lots were “not worth the fight” and that all of the evidence suggested whatever debt

Wayne had owed his parents had been forgiven.

[¶37.] Based upon the foregoing, and contrary to Dale’s assertions, we hold

that Campbell made reasonable efforts to comply with the order to inquire into the

history and status of Wayne’s debt to his parents and the disposition of the

1. It appears the last best estimate of the balance due on the alleged real estate
mortgage would have been $41,216 at the time of Wayne’s death in 2000.
- 13 -
#25472

cemetery lots. Campbell looked into these issues and reported to the court on not

only one, but two occasions. The court agreed with Campbell’s assessment of the

viability of the claims on not only one, but two occasions. Dale’s contentions that

Campbell failed to comply with the court’s order are, therefore, lacking in merit.

[¶38.] 4. Whether the circuit court had jurisdiction to compel
answers to Dale’s requests for admissions.

[¶39.] During the litigation over the estate’s abandonment of the California

real estate and cemetery lot claims, Dale served a set of requests for admissions on

each of the four trustees of Wayne’s trust. Each set of requests sought the trustee’s

admission that Wayne’s parents never signed documents forgiving Wayne’s debt on

the California real estate. Each set also sought the trustee’s admission as to the

genuineness of two separate lists of trust debts mentioning a real estate debt to

Wayne’s father. 2 Each trustee filed a “Declaration” declining to respond to the

requests for admissions on the basis that Dale had no standing to issue them and

that the trust was not a party in the estate proceedings.

[¶40.] Dale filed a motion to compel responses to the requests for admissions.

Following a hearing, the circuit court denied the motion, finding it had no

jurisdiction over the California trust or trustees and that neither the trust nor the

trustees were parties to the action. Dale argues the trustees waived any argument

over jurisdiction by filing their “Declarations.”

2. One list mentioned a debt to Wayne’s father for the California real estate and
the other indicated the debt had been forgiven. Thus, even if genuine, the
lists were inconclusive evidence as to the debt for the realty. Moreover, the
lists were eventually admitted as evidence in any event and appear as
exhibits in the record and attachments to the briefs.

- 14 -
#25472

[¶41.] “Unless specifically provided to the contrary” or “unless inconsistent

with its provisions” the rules of civil procedure apply to proceedings under the

Uniform Probate Code. SDCL 29A-1-304. Thus, the provisions of SDCL 15-6-36(a)

& (b) on requests for admissions are applicable in probate proceedings. SDCL 15-6-

36(a) permits a “party” to serve requests for admissions “upon any other party . . ..”

(Emphasis added). The purpose of the rule, “is to define and limit the matters in

controversy between the parties.” 8B Charles Alan Wright et al., Federal Practice

and Procedure § 2252 (3d ed. 2010) (emphasis added). Neither Wayne’s trust nor

the trustees of the trust were parties in this estate case. 3 Thus, neither the trust

nor the trustees had any standing to limit the matters in controversy between the

parties. It follows that Dale had no authority whatsoever under SDCL 15-6-36(a) to

serve requests for admissions on the trust or trustees and neither the trust nor the

trustees could be compelled to respond to the requests. Accordingly, the circuit

court appropriately denied Dale’s motion to compel responses.

Appellate Attorney’s Fees

[¶42.] The estate filed a motion for appellate attorney’s fees in the amount of

$9,953.40. The motion is accompanied by an itemized statement of costs incurred

and legal services rendered as required by SDCL 15-26A-87.3. “‘SDCL 15-26A-87.3

permits an award of appellate attorney’s fees if they are otherwise allowable . . ..’”

In re Estate of Seefeldt, 2006 S.D. 74, ¶ 22, 720 N.W.2d 647, 654 (quoting Shaefer ex

rel. S.S. v. Liechti, 2006 S.D. 19, ¶ 20, 711 N.W.2d 257, 264). “SDCL 29A-3-720

3. One of the trustees was a beneficiary of Doris’s estate. However, Dale’s
requests for admissions from the trustee were served upon him in his
capacity as a trustee, not as a beneficiary or party to the estate case.
- 15 -
#25472

permits an award of beneficiary’s attorney’s fees when the services resulted ‘in a

substantial benefit to the estate.’” Seefeldt, 2006 S.D. 74, ¶ 22, 720 N.W.2d at 654

(quoting Wagner v. Brownlee, 2006 S.D. 38, ¶¶ 14-15, 713 N.W.2d 592, 597).

However, SDCL 29A-3-720 is not limited to beneficiaries and also permits an award

of attorney’s fees, “to any person who prosecuted or defended an action that resulted

in a substantial benefit to the estate.” (Emphasis added).

[¶43.] Campbell, acting on behalf of the estate, has successfully defended an

action resulting in a substantial benefit to the estate. See In re Estate of Torgersen,

711 N.W.2d 545, 555 (Minn. Ct. App. 2006) (noting that the public policy underlying

§ 3-720 of the Uniform Probate Code recognizes that an estate as an entity is

benefited when genuine controversies as to the validity or construction of a will are

litigated and finally determined (citing In re Estate of Flaherty, 484 N.W.2d 515,

518 (N.D. 1992))). Accordingly, we grant the estate appellate attorney’s fees of

$9,953.40.

[¶44.] Affirmed.

[¶45.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER,

MEIERHENRY, and SEVERSON, Justices, participating.

- 16 -