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Where there's a will there's a way: an examination of Estate of Kesling, In re and the South Dakota Supreme Court's application of the plain meaning rule.

In the Matter of the Estate of Kesling provided the South Dakota Supreme Court the opportunity to decide whether a holographic will clearly expressed the testator's intent regarding the disposition of his property. In reaching its decision, the Supreme Court grappled with the question of whether the will's language was reasonably capable of being understood in more than one sense." In a 3-2 decision, the Court narrowly affirmed the trial court's determination that the will's language clearly described the testator's intent and that evidence outside of the writing was not necessary in its analysis. The majority reasoned that the testator's intent was clearly expressed within the four-comers of the will and that it was bound by the plain language of the writing. The majority ultimately found that the testator did not give his wife a fee simple absolute in his personal and real property, but rather a life estate, with his three daughters as remaindermen. In reaching its conclusion, however, the majority misapplied the plain meaning rule because it did not give all of the words in the will their usual and ordinary meaning. Instead, the Court gave preferential effect to the word "shall" in the latter half of a crucial sentence and overly relied on grammatical syntax. Furthermore, the Court essentially utilized the presumption against disinheritance before application of this presumption was appropriate. The Court should have reversed and remanded the trial court's determination and permitted admission of additional evidence to clarify the will's ambiguity. By doing so the Court would have given the trial court the ability to resolve any doubt as to the testator's intent, honored the high value placed on testamentary freedom, and reinforced the traditional process of interpreting ambiguous language in a will.

I. INTRODUCTION

The transfer of property at death is a universal and ancient concept. (1) Historically, most cultures have allowed dying individuals to allocate their property to others. (2) In early societal dispensations, a transfer of property from one person to another was done in accordance with specific rules and rituals. (3) Over time, these customs evolved into established laws, which have become the foundations of testamentary freedom--and its limitations--in modern society. (4)

A will is a legal document that directs the distribution of an individual's estate after death. (5) The primary purpose of a will is to provide individuals the testamentary freedom to control the disposition of their property and to avoid the application of standardized distribution plans set forth by state intestacy laws. (6) Since testamentary freedom plays an important role in the use of wills, testators are given almost limitless power concerning how to dispose of their property. (7) Through the execution of a will, a testator may accomplish many goals including: devising property, identifying beneficiaries, designation of a personal representative, and--in some jurisdictions--limiting or disinheriting heirs from receiving a share of the testator's property. (8)

Generally, the provisions in a will are considered mandatory directives that must be followed if possible. (9) Sometimes language in a will is precatory in nature. (10) Precatory expressions are designed to advise or persuade a donee to confer some kind of benefit, often times property, to another person or entity. (11) Such recommendations or wishes are not mandatory, and the ultimate decision to follow the instruction is left to the discretion of the donee. (12)

In construing a will, courts are often challenged with interpreting whether certain words or clauses constitute mandatory or precatory language. (13) To answer this question, courts look to the intent of the testator. (14) The traditional rule that is still utilized by virtually all jurisdictions for ascertaining a testator's intent is the plain meaning rule. (15) This rule specifies that the meaning of the writing must be deduced solely from the language contained in the writing itself, unless such language is determined by the court to be ambiguous. (16) When language is ambiguous, circumstances surrounding the execution of the will, as well and other extrinsic evidence, is admissible to clarify the ambiguity. (17)

This note focuses on the South Dakota Supreme Court's holding in In re Estate of Kesling (18) ("Kesling") and the majority's application of the plain meaning rule. (19) Following the facts and procedure of the case, the background law surrounding the issues in Kesling will be examined. (20) The rules of will interpretation will be explored first, specifically the plain meaning rule and the problem of ambiguity. (21) A discussion of circumstantial and other extrinsic evidence will then be discussed as well as the rules of will construction. (22) The background will conclude with a discussion on precatory language. (23) The analysis provides an explanation of the majority's application of the plain meaning rule, specifically addressing three areas: the Court's error in giving preference to the word "shall", its overreliance on grammatical syntax, and its conclusory determination that the will's language did not posit an intent by James to possibly disinherit his daughters. (24) This note concludes that the South Dakota Supreme Court should have reversed the trial court's decision and permitted the admission of evidence to clarify whether the will gave the testator's widow an estate in fee simple or only a life estate. (25)

II. FACTS AND PROCEDURE

On April 2, 2008, James W. Kesling executed a holographic will. (26) The entire holographic reads as follows:

   Last Will and Testament of James W. Kesling Dated this 2nd Day of
   April 2008

   I James W. Kesling do hereby will all my personal property and
   personal belongings to Sandra L. Kesling of Mobridge who is my
   wife. This includes my land in Dewey, Corson and Walworth Counties.
   I also will my Contract For Deed with Faron Schweitzer, Coffy
   Enright and Richard Enright. It is my wish that my Estate be
   Administrated [begin strikethrough]my[end strikethrough] By my
   daughters and and [sic] upon Sandra L. Kesling [sic] death the
   Estate shall be divided Equally between my 3 daughters (over)
   I James W. Kesling being of Sound Mind and body do Hereby Sign
   this Document. (27)


James died three months later on July 4, 2008. (28) His wife, Sandra Kesling, and three daughters from a previous marriage, survived him. (29) Sandra and James were married for twenty-nine years and had no children together. (30) Following James' death, his will was submitted to probate for admittance and for appointment of a personal representative of his estate. (31) The court admitted the will on September 4, 2012 and appointed James' daughters as personal representatives. (32)

A. CIRCUIT COURT DECISION

The Estate and Sandra disagreed on the meaning of James' will. (33) On the one hand, the Estate believed that James' will clearly expressed his intention to devise to Sandra a life estate in both his personal and real property and that upon her death the property would pass to James' three daughters. (34) Sandra, on the other hand, believed that the will was ambiguous because it was susceptible to three reasonable, but different, interpretations. (35) In addition to the Estate's interpretation, Sandra believed that the language of the will could also be interpreted as giving her all of James' property in fee simple with a "wish"--not a requirement--that upon her death she would gift the property to his daughters. (36) In the alternative, Sandra contended that the will's language may also have devised her a fee simple, but provided that James' daughters inherit the property in the event that Sandra predeceased James. (37) Consequently, both parties petitioned the circuit court to construe the will. (38) The Estate raised a motion for summary judgment. (39)

The circuit court reviewed the entire writing and determined that it possessed the requisite characteristics to constitute a holographic will. (40) The court then examined the individual sentences of the will and found that James intent was clearly expressed within the four-comers of the document and that the Estate's interpretation was correct. (41) The circuit court determined the language of the will was unambiguous, therefore the court did not consider circumstances surrounding the will's execution or extrinsic evidence. (42) Therefore, the court granted the Estate's motion for summary judgment. (43)

B. ARGUMENTS TO THE SUPREME COURT AND ITS DECISION

Sandra appealed the circuit court's decision asserting that the court erred in granting summary judgment because the language in the fourth sentence of James' will was "reasonably capable of being understood in more than one sense." (44) Sandra emphasized the permissive nature of the word "wish" and its susceptibility of being interpreted as either mandatory or advisory language. (45) Sandra asserted that the admittance of evidence concerning the surrounding circumstances of the will's execution was necessary to help ascertain whether James meant the word "wish" to be mandatory or precatory instruction. (46)

The Estate maintained that the only reasonable interpretation of James' will was that Sandra received only a life estate with James' three daughters as remaindermen. (47) To support its argument, the Estate relied on James use of the words "upon" and "shall" in the later part of the will's fourth sentence. (48) The Estate purported this language constituted words of limitation which qualified Sandra's interest from a fee simple to a life estate. (49)

The Estate further asserted that Sandra's interpretations of the will were unreasonable because the document's language did not expressly disinherit James' daughters. (50) Specifically, the language expressed a desire to name the daughters as the estate's personal representatives. (51) The Estate argued that this fact supported James' intent to include his daughters in the disposition of his estate. (52)

On appeal, the South Dakota Supreme Court affirmed the circuit court's decision, holding James' will was not ambiguous and the circuit court was correct in excluding additional evidence. (53) In its decision, the majority (54) explained why Sandra Kesling's first interpretation of the will was unreasonable. (55) The Court surmised that James' use of the word "wish" in the fourth sentence did not control the disposition of James' estate due to the use of the word "shall" after the conjuncture. (56) Furthermore, the language of the will indicated that James intended his daughters to partake in his estate and the language did not raise a question of whether he intended to disinherit them. (57)

The majority also reasoned that Sandra's second interpretation was unreasonable. (58) The language of the will addressed issues solely pertaining to James' death and the subsequent devise to his daughters was not contingent on Sandra predeceasing him. (59) The majority opined that the only reasonable interpretation of James' will was that forwarded by the Estate. (60) The majority proffered support for this by relying on the capitalization of the word "Estate" in the fourth sentence. (61) It explained this feature indicated the estate referenced in the latter half of the fourth sentence was still James' estate and not Sandra's. (62)

In dissent, Justice Severson, joined by Justice Wilbur, contended that extrinsic evidence was necessary since the language of the fourth sentence was subject to two reasonable interpretations. (63) Justice Severson pointed to the fact that James was clear and used direct words when devising his property to Sandra. (64) The dissent supported this assertion by highlighting James' use of the word "will" twice, before to switching to the word "wish," suggesting that the word "wish" in such a context was less definite and subject to ambiguity. (65)

The dissent explained that precatory language is not always determined by viewing a single word or phrase in isolation. (66) Precatory language, on the contrary, "must be determined from the manner in which such words are used in connection with other phraseology of [a] will." (67) The dissent asserted that without the admission of additional evidence, it was uncertain whether James intended to devise his property in fee simple to Sandra or if James intended to devise a life estate with his daughters as remaindermen. (68)

III. BACKGROUND

This section reviews the law of will interpretation and the application of the plain meaning rule. (69) It also discusses the issues associated with ambiguity, followed by an examination of extrinsic evidence and its application in resolving ambiguous language. (70) Rules of construction regarding irreconcilable language and the presumption against disinheritance are then discussed. (71) This background concludes with an examination of precatory language and the permissive nature of the word "wish" in the context of wills. (72)

A. WILL INTERPRETATION AND THE PLAIN MEANING RULE

Will interpretation is directed by the familiar and well-understood rule that testator intent always governs when it can be determined and is legally permitted. (73) The high value placed on intent is attributed to the indispensible principle of testamentary freedom that serves as the backbone of the law of wills. (74) The law acknowledges that people are permitted to distribute their property in almost any manner that they see fit to do so. (75)

The vast majority of jurisdictions, including South Dakota, follow the plain meaning rule when interpreting a will. (76) This rule requires a court to enforce a will when the testator's intent is clearly expressed from the language used. (77) The reason for this rule is based primarily on the Statute of Wills and the parol evidence rule. (78) The concept is that the words of the will--rather than outside sources--are the best evidence of the testator's intent and provides the greatest protection against fabricated or less reliable evidence. (79) As a result, a court is not free to speculate about the intent of the testator. (80) A court's determination of testator intent is limited to construing the text of the will unless the court deems the text ambiguous. (81)

The plain meaning rule requires a court to enforce a testator's legally valid devise, even when such a devise is bizarre or unnatural. (82) This means that a court is not permitted to ignore a testator's express devise merely because it thinks the devise is unreasonable or unfair. (83) If a testator decides to limit or exclude a person from receiving a distribution of his property he may do so. (84) The law does not mandate that a testator recognize his relatives equally, or even at all, when devising property. (85)

Courts utilize the four-comers test when interpreting language in a will. (86) The four-comers test is based on the supposition that the person who wrote the will had a clear and uniform purpose throughout the entire document. (87) Therefore, consideration must be given to the will's language as whole, rather than focusing on separate provisions. (88) To ascertain the uniform purpose in a testator's will a court must consider the individual provisions employed, expressions used, and words utilized "in connection with other phraseology [in] the will." (89)

A key principle of interpreting the plain meaning of a will requires a court to "attempt as much as possible to give meaning to all words and provisions." (90) Words written by the testator should be interpreted "in their normal grammatical sense" according to their usual and common meaning. (91) It goes against reason to assume that a testator would have committed a useless act by putting words in the will that carry no effect; thus, an interpretation which makes a word inconsequential or inoperative should be avoided. (92)

When examining words in a will, courts are sometimes asked to interpret disputed words or expressions in the exact same manner as they have been interpreted in other cases. (93) Courts are generally unwilling to apply this rigid type of approach when attempting to ascertain the testamentary intent of a will. (94) This is because courts understand that the same word or phrase can express different intentions when read in connection with other words and phraseology in a will. (95) Unless two wills use the exact same language and are created under the same circumstances, precedent concerning the meaning of words has little to no weight in determining intent. (96) Consequently, the applicability of precedent when dealing with issues of interpretation is limited to general principles and methods of discerning intent, rather than bright line rules that must be rigidly followed. (97)

Finally, the formalities of writing cannot be used to defeat a testator's intention. (98) Courts recognize that not all people are astute in the use of grammar and that a lack of such astuteness should not be used to thwart the intention of the testator. (99) Furthermore, any addition or elimination of punctuation must be consistent with the otherwise clear intent of the testator. (100) Grammar and syntax, therefore, play a limited role in the process of ascertaining testamentary intent. (101)

B. AMBIGUOUS LANGUAGE

Sometimes the intent of a testator is not always clear because a part of the testator's will is ambiguous. (102) This occurs when there is an uncertainty about what a clause or term means in the document. (103) Courts have traditionally categorized ambiguous provisions or terms as either patent or latent. (104)

A patent ambiguity, on the one hand, can be found on the face of the will itself. (105) This can arise when provisions in a will conflict, or when the will's language lacks specificity. (106) An example of a patent ambiguity would be where a testator devised to another "two-hundred fifty thousand dollars ($25,000)." (107) An ambiguity exists because the written portion devises two-hundred fifty thousand dollars, whereas the numerical description devises twenty-five thousand dollars." (108)

A latent ambiguity, on the other hand, is not apparent on the face of a will. (109) Such an ambiguity is classified into one of two categories. (110) The first category entails situations where a person or object is clearly described in a will, but more than one person or object fits the description. (111) The second category includes instances where no person or object precisely fits the description in a will, but more than one person or object partially fits the description. (112)

Historically, the distinction between patent and latent ambiguities was important because extrinsic evidence was only permitted to clarify a latent ambiguity. (113) Modern rules have changed this, however, and admittance of extrinsic evidence to assist in interpreting both types has largely eliminated the need to distinguish between the categories. (114) An example of this integration of both categories into a single umbrella classification is the South Dakota Supreme Court's description of ambiguous language pertaining to the interpretation of wills. (115) The Court has stated that language is ambiguous when it is "reasonably capable of being understood in more than one sense". (116) Other jurisdictions have similar definitions for determining what encompasses ambiguous language. (117)

C. EXTRINSIC EVIDENCE AND RULES OF WILL CONSTRUCTION

If a court determines that language in a will is ambiguous, the plain meaning rule permits the admission of outside evidence. (118) The purpose of admitting such evidence is to explain the testator's intended meaning of the ambiguous language. (119) Occasionally conflicts can arise as to what particular type of extrinsic evidence is permitted to resolve an ambiguity. (120) The guiding principal, however, is that extrinsic evidence cannot be used to show an intention that is inconsistent with an intent clearly expressed within the four-comers of the will. (121)

Circumstances surrounding the execution of a will are a common type of evidence that courts may examine to assist in interpretation of ambiguous language. (122) Evidence of the circumstances surrounding a will's execution is preferred because it is more likely to be objective and less likely to be susceptible to instances of fraudulent misrepresentations. (123) Through the admittance of circumstantial evidence, a court can place itself in the shoes of the testator by examining the context of the will's language in light of the surrounding facts and circumstances at the time of its execution. (124) When examining facts and circumstances to clarify ambiguous language, a court may consider motives that may reasonably influence the testator's disposition of property. (125) The various facts and circumstances that courts often consider include: "[t]he character and the occupation of testator; the amount, the extent and the condition of testator's property; the number, identity and the like of testator's family and of other natural objects of his bounty; and the testator's relation to the beneficiaries and to the natural objects of his bounty." (126)

In addition to circumstantial evidence, other forms of extrinsic evidence may also be permitted to show intent. (127) In South Dakota, depositions of will drafters, testimony from disinterested individuals, legal documents, letters, and the exchange of gifts, have all been recognized as valid evidentiary sources for clarifying ambiguous language. (128) This type of evidence does not necessarily relate to the time at which a testator executed his or her will, but is nonetheless appropriate to establish testamentary intent. (129)

Sometimes the process of interpretation fails and an ambiguity persists even after the admission of extrinsic evidence. (130) When this occurs, courts will resort to the rules of will construction. (131) Although the distinction between interpretation and construction may seem superficial, there is a distinct difference. (132) Interpretation is a prerequisite to construction and involves discovering the testator's intention through using permitted data. (133) By contrast, construction occurs only after interpretation has failed to reveal the testator's intent and involves the utilization of established presumptions and canons to assign meaning. (134) There are two canons, most relevant to the issues presented in Kesling. (135)

The first canon addresses the process of reconciling inconsistent or contradictory language. (136) The South Dakota Supreme Court has recognized this canon. (137) Under this canon, language appearing to devise property in fee simple would be qualified, if subsequent irreconcilable language suggested a lesser estate. (138)

The second canon of construction is the presumption against disinheritance. (139) This canon presumes that a testator would not intend to disinherit his heirs, absent a clear intention to the contrary. (140) The presumption against disinheritance is especially strong when there is an absence of evidence that the testator had bad or ill feelings towards the heir purported to be disinherited. (141) Despite this fact, the presumption cannot bar a devise that disinherits an heir or class of heirs when a will's language clearly indicates such intent by express terms or by implication. (142)

Finally, the indispensible value placed on testamentary freedom requires the rules of construction be subordinate to the testator's intent. (143) Constructional canons and presumptions reinforce the principle that a person's exercise of testamentary freedom should control the disposition of his property. (144) When it becomes necessary, however, canons of construction may be utilized to determine how to dispose of a testator's property. (145)

D. PRECATORY LANGUAGE

Precatory language are "words of entreaty, request, wish or recommendation" addressed to a donee under a will. (146) A testator typically uses precatory language to convey his or her wish that the devisee use the bequeathed property to benefit someone or some entity. (147) These recommendations are not mandatory instructions; the ultimate choice is left within the discretion of the donee. (148)

Precatory language often raises a question of intent. (149) Courts have generally recognized that an absolute gift of property will not be diminished to a lesser estate if it is followed by precatory words. (150) For example, if a gift is made to "A" in fee simple, courts will be inclined to find precatory words to have no legal effect. (151) Courts are inclined to recognize, however, such language as mandatory when clearly expressed through the context of the will as a whole. (152)

Precedent has limited application in ascertaining whether language is precatory. (153) Consequently, previous court decisions on the interpretation of words such as "wish" and "desire" are of little guidance, and no absolute rule can be laid down as to their meaning. (154) Instead, the court must look to the "manner in which such words are used in connection with other phraseology of the will." (155)

An example of how the same word can have a different meaning when viewed in connection with other text is illustrated in the cases of Novak v. Novak (156) and In re Estate of Wynea, (157) both of which were decided by the South Dakota Supreme Court. (158) In Novak, the word "wish" followed immediately by the words "and I hereby direct" constituted mandatory language, clearly expressing the testator's intent. (159) Conversely, in Wynea, the Court determined that the word "wish" followed by the phrases "shall have the privilege" and "if he so desired" constituted precatory language. (160)

Finally, since precedent provides only limited assistance in determining whether language is precatory, extrinsic evidence is vital in ascertaining intent when a plain reading of a will's language is insufficient. (161) Extrinsic evidence aids the interpretation of ambiguous language by providing the context upon which the language was used. (162) By examining ambiguous language in light of the surrounding facts and circumstances, courts are in a better position to discover whether a testator issued a mandatory edict or precatory instruction. (163)

IV. ANALYSIS

In Kesling, the Court deviated from the traditional application of the plain meaning rule. (164) The Court gave preferential treatment to the word "shall" and failed to give the words "wish" and the word "and" proper significance. (165) The Court also overly relied on the grammatical syntax of the testator. (166) Moreover, the Court made a conclusory determination that the language of the will, as a whole, did not raise a question of whether James intended to disinherit his daughters, which effectively amounted to a premature use of the presumption against disinheritance. (167) Admittance of evidence outside the four comers of the will was a necessary course of action that the Court should have allowed to help discover the true intent of James Kesling. (168)

A. SELECTIVE WEIGHT AND OVERRELIANCE ON GRAMMATICAL SYNTAX

The first oversight of the Court was to give preferential effect to the testator's use of the word "shall" in the latter half of the fourth sentence. (169) The fourth sentence states:

   It is my wish that my Estate be Administrated my By my daughters
   and and [sic] upon Sandra L. Kesling [sic] death the Estate shall
   be divided Equally between my 3 daughters (over) I James W. Kesling
   being of Sound Mind and body do Hereby Sign this Document. (170)


The Court determined that the verb "shall" controlled the disposition of James' estate since it appeared after the word "wish" and after the conjuncture "and". (171) This weighty treatment of "shall" minimized the significance of the testator's use of the words "wish" and "and" within the context of the sentence and the other phraseology of the whole will. (172) The plain meaning rule requires a reviewing court to consider "all words" in a will to ascertain a testator's intent. (173) The Court's focus on the placement of the word "shall" at the end of the fourth sentence, instead of analyzing its relevance within the context of the entire will, was contrary to the supposition that a testator has a uniform purpose to convey throughout the entire will document. (174)

The Court's reliance on the word "shall" had the effect of the canon of construction that gives preference to later phrases or words in a will. (175) This goes against the established rule that canons of construction should be utilized only after an interpretive analysis has failed. (176) The only way that the Court could have interpreted "shall" to be controlling--without basing its conclusion on the plain meaning of all the phraseology in the will--was to first find James' will ambiguous. (177)

By not giving the word "wish" its proper significance, the Court attributed James to committing a useless act. (178) This goes against well-established precedent that an interpretation that makes a word inconsequential should be avoided. (179) The fact that James twice used the words "I will" before switching to the phrase "it is my wish" is significant and should have been given proper consideration. (180)

The majority proffered additional support for its holding by ineffectually relying on grammatical syntax. (181) The Court concluded that the "Estate" mentioned in the clause before the conjunction, and the "Estate" mentioned in the subsequent clause were both in reference to James' estate. (182) In the latter half of the fourth sentence, however, where the will addresses the gifting of property after Sandra's death, James does not use words that clearly refer to the estate as being his. (183) Despite this overlooked omission, the Court reasoned that the estate referenced was still James' by relying on capitalization, and the Court's limited interpretation of the common use of the word "and." (184)

The majority's reliance on capitalization to determine James' intent contradicts the rule that grammatical errors are not to be used to defeat a testator's intention. (185) It is possible that James capitalized the word "Estate" to reference his own estate, but it is equally possible to attribute his capitalization of the word "Estate" to poor grammar. (186) An examination of the will, as a whole, supports the latter; James utilized capitalization of several words, many of which do not comport with the technical rules of grammar. (187) Consequently, James' use of capitalization should have been given less effect in ascertaining his intent when viewed harmoniously with the various rules of interpretation. (188)

The Court also misapplied the plain meaning rule when it relied on the formal rules of grammar to support its decision. (189) The majority found that the conjunction "and" in the fourth sentence created two independent clauses and that James' "wish" did not continue beyond the first independent clause. (190) The Court should have focused its attention, rather, on the common usage of the word "and." (191) The word "and" can be used either as a separating or a connecting word, thus allowing for two separate, but still reasonable, interpretations. (192) As such, it is possible that James intended the clauses to be independent of one another. (193) It is also equally possible that James used the word "and" to connect both phrases together, making the later clause an extension of his "wish." (194) Since both interpretations are plausible, the Court should have found James' will ambiguous and permitted the admittance of additional evidence to determine James' intent. (195)

B. DISINHERITANCE BY IMPLICATION AND PREMATURE USE OF CANON AGAINST DISINHERITANCE

The Court also marginalized the plain meaning rule when it concluded that the language of the will did not show a possible intent by James to disinherit his three daughters. (196) This determination was premature because James did not need to expressly disinherit his daughters if he devised all of his property to Sandra in fee simple. (197) Such a devise would have effectively disinherited James' daughters by necessary implication. (198)

Whether James' daughters were disinherited by implication turns on James' intended meaning of the word "wish" and whether such meaning was meant to carry through the entire sentence. (199) If James intended the word "wish" to be precatory, and to carry through the entire sentence, Sandra would own the property in fee simple. (200) If, however, "wish" was meant to be mandatory in nature, or to not be controlling due to its placement before shall in the second clause, Sandra would hold only a life estate interest. (201) The Court should have looked at the manner in which the word "wish" was used in the will as a whole and then instructed the trial court to supplement its analysis with extrinsic evidence, since the text alone was insufficient. (202)

The Court also deviated from the traditional application of the plain meaning rule when it speculated that James' "wish" that his daughters be personal representatives was a clear indication that he intended them to be included in the disposition of his estate. (203) This speculation essentially amounted to a premature use of the presumption against disinheritance, and was utilized prior to the review of evidence outside the will document. (204) It is possible that James wished to have his daughters represent his estate and not receive any of his property. (205) Such intent would certainly be unusual, but precedent has established that an unusual disposition can still be legally valid. (206)

C. JAMES' WILL IS AMBIGUOUS AND EXTRINSIC EVIDENCE WAS NECESSARY TO RESOLVE THE AMBIGUITY

James' use of the word "wish" in the crucial fourth sentence is reasonably capable of being understood in more than one sense. (207) When read in the context of the will's other language, it is unclear whether James intended to give Sandra a fee simple interest in his property or merely a life estate. (208) This ambiguity required the Court to permit additional evidence outside of the four comers of the will to ascertain James' intent. (209)

Precedent has established the plain meaning of the word "wish" can be either precatory or mandatory language. (210) Recall that in Novak, the word "wish" followed immediately by the words "and I hereby direct" constituted mandatory language. (211) In Wynea, the Court determined that the word "wish" followed by the words "shall have the privilege" and "if he so desired" constituted precatory language. (212) In Kesling, the language used in conjunction with "wish" is less definite than that found in Novak or Wynea, and thus created ambiguity. (213) Additionally, since precedent serves as a general guide to interpretation, the holdings in Novak and Wynea can provide only minimal assistance in ascertaining James' intent. (214)

To properly discover James' actual intent, the meaning of the fourth sentence should have first been ascertained by consideration of its language within the context of the whole will. (215) Justice Severson applied this process in the dissenting opinion.-16 The crux of Justice Severson's argument was that the fourth sentence was ambiguous when read in connection with James' will as a whole. (217) James used discrete language to convey all of his property to Sandra. (218) Justice Severson astutely pointed out that James switched to the less definite phrase "it is my wish" in the fourth sentence, only after his intended conveyance to Sandra. (219) Furthermore, Justice Severson's analysis is properly devoid of any conclusions pertaining to James' motives in wishing his daughters be involved in his estate. (220) This was appropriate because application of the plain meaning rule precludes the Court from hypothesizing about James' intent and instead focuses its analysis solely on the text contained in the four comers of the will. (221)

After consideration of the entire will, the Court should have acknowledged the need for additional evidence to assist in determining the true nature of James' use of the word "wish." (222) Evidence about James' relationship with his daughters as well as other circumstances bearing on the disposition of his property should have been taken into consideration. (223) This evidence may have revealed that James had a reason to disinherit his daughters, despite the fact that he wished them to be representatives of his estate. (224) Admittance of this evidence would have been the correct application of the plain meaning rule and was the necessary next step in discovering whether James' instruction in the fourth sentence of the will was mandatory or precatory in nature." (225)

V. CONCLUSION

The Court's determination that the plain language of James Kesling's will clearly expressed his intent does not comport with the traditional application of the plain meaning rule. James Kesling's intention remains uncertain because the fourth sentence of his will is subject to disparate interpretations when read in the context of the entire will. After a plain reading of the will, it is unknown whether the word "wish" was meant to be an advisory or a mandatory instruction.

After reading the entire will, it is plausible to conclude that James' intention was to devise his property to Sandra for life, with his daughters inheriting the estate after her death. It is also plausible, however, that James meant to devise his property to Sandra in fee simple, with a "wish" or recommendation that Sandra devise the property to his daughters after her death. These interpretations are irreconcilable without considering additional evidence. The Court should have found that James' will was ambiguous and permitted the admission of extrinsic evidence. This evidence would have provided the context under which James' will was executed and assisted in determining the nature of the words used by James in devising his estate. By admitting such evidence, the South Dakota Supreme Court would have followed the traditional application of the plain meaning rule, likely resolved any doubt as to the testator's intent, honored the high value placed on testamentary freedom, and reinforced the Court's traditional process of interpreting ambiguous language in the context of a will.

APPENDIX

(1.) 10 Thompson ON Real Property, 214 (David A. Thomas, ed. 1994) [hereinafter THOMPSON].

(2.) Eunice L. Ross & Thomas J. Reed, Will Contests [section] 2.1 (2d ed. 1999). The authors reference the Bible as one of the earliest examples of a society permitting the transfer of property to others. Id.

(3.) Id. The author states that "Germanic tribes [of Great Britain] ... recognized the right to make death bed gifts of property." Id. Roman law and tradition permitted "a free man [to] transfer up to three-fourths of his assets at death by executing an oral or written transfer of assets prior to death...." Id. The Norman people had a primitive system of gifting property through written and oral agreements. Id.

(4.) Id.

(5.) Black's Law Dictionary 1833 (10th ed. 2014) [hereinafter Black's].

(6.) Carroll v. Carroll's Lessee, 57 U.S. 275, 281 (1853); In re Estate of letter 1997 S.D. 125, [paragraph] 28, 570 N.W.2d 26, 32 (stating "the whole purpose of a will [is] to avoid the State's estate plan by creating your own").

(7.) Jesse Dukeminier & Stanley M. Johanson, Wills, Trusts And Estates 4 (9th ed. 2013) [hereinafter Dukeminier], The authors state: "In American law, freedom of disposition at death is subject only to wealth transfer taxation and a handful of policy limitations". Id. A testator is "[s]omeone who has made a will; especially] a person who dies leaving a will." Black's, supra note 5, at 1703.

(8.) See Dukeminier, supra note 7, at 1 (stating "the right of a property owner to dispose of her property on terms that she chooses has come to be recognized as a separate stick in the bundle of rights called property"). See, e.g., In re Estate of Burk, 468 N.W.2d 407, 412 (S.D. 1991) (commenting that a testator has the privilege to dispose of his property as he chooses, within limits by statute, and that the law does not require recognition of relatives at all). In South Dakota, a person may utilize a negative will provision, effectively disinheriting heirs that would normally take under intestacy. Jetter, 1997 SD 125, [paragraph] 12, 570 N.W.2d at 28.

(9.) Smith v. Bell, 31 U.S. 68, 75 (1832).

(10.) George Gleason Bogert, et al., The Law of Trusts and Trustees at 72-73 (2d ed. 1984) [hereinafter BOGERT, ET AL.].

(11.) Id. at 72-73 (citations omitted). A donee is "one to whom a gift is made; the recipient of a gift." Black's, supra note 5, at 596.

(12.) BOGERT, ET AL., supra note 10, at 73-75.

(13.) Id. at 73-74. See also Colton v. Colton, 127 U.S. 300, 312-13 (1888) (noting that whether language is precatory is determined by "[the] words [the testator] has used, according to their natural meaning, modified only be the context and the situation and circumstances of the testator when he used them"); In re Estate of Nelson, 274 N.W.2d 584, 588 (S.D. 1978) (determining whether the language in a document labeled "personal instruction" was to be construed as a dispositive intent to control the disposition of testator's property).

(14.) See Colton, 127 U.S. at 312-13 (explaining that a testator's intent determines whether language is meant to be precatory or mandatory instruction). See also Nelson, 274 N.W.2d at 587-88 (explaining that "an instrument which merely recommends a disposition but leaves the actual disposition of the property within the discretion of another, is not testamentary in character").

(15.) DUKEMINIER, supra note 7, at 366. But see ANDREA W. CORNELISON, Dead Man Talking: Are Court's Ready to Listen? The Erosion of the Plain Meaning Rule, 35 REAL PROP. PROB. & TR. J. 811, 839 (2001) [hereinafter CORNELISON] (explaining that the Supreme Court of Connecticut rejected the plain meaning rule, "but the scope and effect of this ruling remain]s] uncertain").

(16.) BLACK'S, supra note 5, at 1336.

(17.) In re Hurley's Estate, 248 N.W. 194, 195 (S.D. 1933); In re Estate of Klauzer, 2000 SD 7, [paragraph][paragraph] 9-10, 604 N.W.2d 474, 477.

(18.) In re Estate of Kesling, 2012 SD 70, 822 N.W.2d 709.

(19.) See infra Parts II-TV.

(20.) See infra Part III.

(21.) See infra Part III.A-B.

(22.) See infra Part III.C.

(23.) See infra Part III.D.

(24.) See infra Part IV.

(25.) See infra Part V.

(26.) Appellee's Brief at 2, In re Estate of Kesling, 2012 SD 70, 822 N.W.2d 709 (No. 26204) [hereinafter Appellee's Brief]. A holographic will is "[a] will that is handwritten by the testator." BLACK'S, supra note 5, at 1833.

(27.) Kesling, 2012 SD 70, [paragraph] 2, 822 N.W.2d at 710. Cf. Appellant's Brief app. at 2.1-2.2, In re Estate of Kesling, 2012 SD 70, 822 N.W.2d 709 (No. 26204) [hereinafter Appellant's Brief]. In the Court's written opinion, it did not transcribe all the capitalization found in the original will. Compare id. at 2.1-2.2 (original copy of will), with Kesling, 2012 SD 70, [paragraph] 2, 822 N.W.2d at 710 (providing the Court's transcribed version). See Appendix.

(28.) Appellant's Brief, supra note 27, at 2.

(29.) Kesling, 2012 SD 70, [paragraph] 2, 822 N.W.2d at 710.

(30.) Id. [paragraph] 2, 822 N.W.2d at 710.

(31.) Appellant's Brief, supra note 27, at 5. A personal representative is "[s]omeone who manages the legal affairs of another because of incapacity or death, such as the executor of an estate." BLACK'S, supra note 5, at 1494.

(32.) Appellant's Brief, supra note 27, at 5.

(33.) Kesling, 2012 SD 70, K 4, 822 N.W.2d at 710.

(34.) Id. A life estate is "an estate held only for the duration of a specified person's life, usu[ally] the possessor's." BLACK'S, supra note 5, at 665.

(35.) Kesling, 2012 SD 70, [paragraph] 9, 822 N.W.2d at 711.

(36.) Id. [paragraph] 4, 822 N.W.2d at 710. A fee simple absolute interest is "an estate of indefinite or potentially infinite duration." BLACK'S, supra note 5, at 734.

(37.) Appellant's Brief, supra note 27, at 6.

(38.) Kesling, 2012 SD 70, [paragraph] 4, 822 N.W.2d at 710.

(39.) Id. [paragraph] 5, 822 N.W.2d at 710.

(40.) Appellee's Brief, supra note 26, at 3. "A will is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator's handwriting." S.D.C.L. [section] 29A-2-502 (1995).

(41.) Appellee's Brief, supra note 26, at 3-4.

(42.) See id. at 4 (explaining that the circuit court read the will and found no ambiguity within its four-comers).

(43.) Id.

(44.) Kesling, 2012 SD 70, [paragraph] 8, 822 N.W.2d at 711.

(45.) Appellant's Brief, supra note 27, at 13 (commenting [t]he language used in the fourth sentence is reasonably capable of being understood in more than one way--as the testator's desire or hope ... or as a directive"). Precatory language refers to words, "requesting, recommending, or expressing a desire rather than a command. An example of precatory language is 'it is my wish and desire to....'" Black's supra note 5, at 1366.

(46.) Appellant's Reply Brief at 10-11, In re Estate of Kesling, 2012 SD 70, 822 N.W.2d 709 (No. 26204) [hereinafter Appellant's Reply Brief] (asserting that the nature of the property at time of will's execution, when it was purchased, with whose funds, and how the property was acquired would clarify the testator's use of ambiguous language).

(47.) Appellee's Brief, supra note 26, at 23.

(48.) Id. at 10 (contending that James intended to give property to his three daughters following Sandra's death by employing the mandatory word "shall" instead of the discretionary word "may").

(49.) Id. at 19.

(50.) Id. at 24 (concluding that if James had intended to disinherit his daughters he would have used language that made it expressly clear).

(51.) Id.

(52.) Id.

(53.) In re Estate of Kesling, 2012 SD 70, [paragraph] 13, 822 N.W.2d 709, 712.

(54.) Id. [paragraph][paragraph] 1-15, 822 N.W.2d at 709-12. Chief Justice Gilbertson wrote the majority opinion. Id. Justice Konenkamp and Justice Zinter concurred. Id. [paragraph] 16, 822 N.W.2d at 712.

(55.) Id. [paragraph] 10, 822 N.W.2d at 711 (stating "Sandra's first interpretation of the fourth sentence ... ignores the plain language of the will.").

(56.) Id. [paragraph] 11, 822 N.W.2d at 711 (stating "There is no need to carry the noun 'wish' over because James used the verb 'shall' after the conjunction, leaving two independent clauses.").

(57.) Id. (determining that the testator's expression that his daughters be named the estates personal representatives was further evidence that the daughters were to be included in the estate's distribution).

(58.) Id. [paragraph] 12, 822 N.W.2d at 712.

(59.) Id. (pointing out that it made no sense to have James address the administration of his estate and also the issue of Sandra predeceasing him in the same sentence).

(60.) Id. [paragraph] 13, 822 N.W.2d at 712.

(61.) Id. [paragraph] 10, 822 N.W.2d at 712.

(62.) Id.

(63.) Id. [paragraph][paragraph] 17-22, 822 N.W.2d at 712-13.

(64.) Id. [paragraph] 19, 822 N.W.2d at 713.

(65.) Id.

(66.) Id. [paragraph] 20, 822 N.W.2d at 713.

(67.) Id.

(68.) Id. [paragraph] 21, 822 N.W.2d at 713.

(69.) See infra Part III.A.

(70.) See infra Part III.B-C.

(71.) See infra Part III.C.

(72.) See infra Part III.D.

(73.) Smith v. Bell, 31 U.S. 68, 74 (1832); In re Walsch's Estate, 239 N.W. 240, 241 (S.D. 1931).

(74.) John H. Langbein, Substantial Compliance with the Wills Act, 88 HARV. L. Rev. 489, 491 (1975). See generally Rowett v. McFarland, 394 N.W.2d 298, 301 (S.D. 1986) (stating that "it is the testator's intention which is used as the polestar to guide in the interpretation of all wills").

(75.) Restatement (Third) of Property: Wills and Other Donative Instruments [section] 10.1 cmts. a, c (2003).

(76.) DUKEMINIER, supra note 7, at 366. But see CORNELISON, note 15, at 839 (explaining that the Supreme Court of Connecticut rejected the plain meaning rule, "but the scope and effect of this ruling remain[s] uncertain").

(77.) In re Estate of Klauzer, 2000 SD 7, [paragraph] 9, 604 N.W.2d 474, 477; McFarland, 394 N.W.2d at 301 (citation omitted).

(78.) THOMPSON, supra note 1, at 274. Author states "[t]he will itself is the best evidence of testator's intent, since formalities of execution should help the testator avoid fraud as well as inadvertent error." Id.

(79.) CORNELISON, supra note 15, at 815.

(80.) In re Estate of Roehr, 2001 SD 85, [paragraph] 9, 631 N.W.2d 600, 603 (citation omitted).

(81.) Klauzer, 2000 SD 7, [paragraph] 9, 604 N.W.2d at 477.

(82.) See In re Estate of Blake, 136 N.W.2d 242, 246 (S.D. 1965) (noting that "the law does not require that [a testator] recognize his relatives equally or at all"). See also In re Goltz's Estate, 238 N.W. 374, 376 (Wis. 1931) (holding "a court cannot by indirection, change the will of the testator so as to accomplish what might seem a more equitable division of his estate").

(83.) Julia M. Melius, Was South Dakota Deprived of $3.2 Million? Intestacy, Escheat, and the Statutory Power to Disinherit in the Estate of Jetter, 44 S.D. L. REV. 49, 62 (1999) [hereinafter Melius]. Author provides support by quoting In re Wayne's Estate, an Oregon case: "[i]t may be said the will is unjust ... but, perhaps unfortunately, the law does not avoid a will because it fails to square itself with what the persons other than the testator deem to be justice." Id. at 62 n.100 (quoting In re Wayne's Estate, 294 P. 590, 591 (Or. 1930)).

(84.) Blake, 136 N.W.2d at 246. See also Schwager v. Schwager, 109 F.2d 754, 759 (7th Cir. 1940) (noting that a doctrine firmly rooted in every jurisdiction is that testator has the right to dispose of his property in a manner that he or she sees fit and noting further that "[a] testator may ignore wholly, if he desires, those in close relation to him by ties of blood, and he may bestow his devises and bequests upon [another]....").

(85.) Blake, 136 N.W.2d at 246. See generally In re Estate of Fleege, 230 N.W.2d 230, 231 (S.D. 1975) (holding that brother and four sisters of testator had no greater claim to testator's bounty than nephew who was the sole beneficiary to testator's property in will); In re Estate of Flohl, 764 So. 2d 802 (Fla. Dist. Ct. App. 2000) (holding that the court was not free to disregard a testator's intent merely because the testator chose to leave his property to another rather than his son).

(86.) Melius, supra note 83, at 62; BLACK'S supra note 5, at 772.

(87.) Melius, supra note 83, at 62.

(88.) Smith v. Bell, 31 U.S. 68, 76 (1832); In re Barrett's Estate, 18 N.W.2d 787, 789 (S.D. 1945).

(89.) In re Walsh's Estate, 239 N.W. 240, 242 (S.D. 1931) (citation omitted).

(90.) In re Schwan 1996 Great, Great Grandchildren's Trust, 2006 SD 9, [paragraph] 15, 709 N.W.2d 849, 852.

(91.) In re Estate of Nelson, 250 N.W.2d 286, 288 (S.D. 1978).

(92.) In re Estate of Bock, 177 N.W.2d 734, 735 (S.D. 1970) (citation omitted). See generally In re Estate of Seefeldt, 2006 SD 74, [paragraph] 16, 720 N.W.2d 647, 653 (interpreting a testator's use of the word "suggest" to be precatory language since any other interpretation would render the use of the word meaningless when read in conjunction with other language in his will).

(93.) 4 William J. Bowe & Douglas H. Parker, Page on Wills 25 (3d. ed. 2004) [hereinafter Page].

(94.) Id.

(95.) Briggs v. Briggs, 45 N.W.2d 62, 67 (S.D. 1950).

(96.) Smith v. Bell, 31 U.S. 68, 69 (1832). See, e.g., Whitmore v. Starks, 161 N.E.2d 254, 257 (Ill. 1959) (noting that in determining the testator's intention, "each case must be considered on its own particular facts and circumstances, since even the same words, when used under different circumstances and in different context, may express different intentions").

(97.) See Smith, 31 U.S. at 69.

(98.) Id. at 83-84. See also In re Estate of Johnson, 501 N.W.2d 342, 346 (N.D. 1993) (noting language used in a will, "however crudely or inartfully drawn, should be construed to accomplish, and not defeat, the testator's intent").

(99.) In re Estate of Nelson, 250 N.W.2d 286, 288 (S.D. 1978) (noting that the testator's words in her will were not a "model of grammatical astuteness" but were none the less sufficient to convey her intent).

(100.) Estate of Cuneo, 1 Cal. App. 3d 1008, 1011 (Cal. Ct. App. 1969).

(101.) See supra at notes 98-100. See also In re Estate of Klauzer, 2000 SD 7,7, 14, 604 N.W.2d 474, 476, 478 (disregarding contention that the placement of commas was indicative of testator's intention, since the language of the will clearly expressed a different intention).

(102.) See infra notes 103-117 and accompanying text.

(103.) BLACK'S, supra note 5, at 97 (defining ambiguity as "[d]oubtfulness or uncertainty of meaning or intention, as in a contractual term or statutory provision; indistinctness of signification, especially] by reason of doubleness of interpretation.").

(104.) Melius, supra note 83, at 58. See also Dukeminier, supra note 7, at 335 (discussing and providing examples of both latent and patent ambiguities in wills).

(105.) Melius, supra note 83, at 58.

(106.) CORNELISON, supra note 15, at 819.

(107.) Dukeminier, supra note 7, at 335.

(108.) Id.

(109.) CORNELISON, supra note 15, at 820.

(110.) DUKEMINIER, supra note 7, at 335.

(111.) Id. (noting that this "type of latent ambiguity is called equivocation").

(112.) Id.

(113.) CORNELISON, supra note 15, at 823 (noting that courts would not attempt to cure a patent ambiguity, because it would require the courts "to give effect to unattested language").

(114.) DUKEMINIER, supra note 7, at 337.

(115.) In re Estate of Klauzer, 2000 SD 7, [paragraph] 10, 604 N.W.2d 474, 477.

(116.) Id.

(117.) Compare In re Estate of Boehm, 2012 ND 104, [paragraph] 5, 816 N.W.2d 793, 796 (stating that "a will is ambiguous if a provision is susceptible to more than one reasonable interpretation"), and Roberts v. Wilson, 394 S.W.3d 45, 50-51 (Tex. App. 2012) (stating "a term is not made ambiguous because parties offer differing interpretations of a term."), with Klauzer, 2000 SD 7, [paragraph] 10, 604 N.W.2d at 477 (stating that language is ambiguous when it is "reasonably capable of being understood in more than one sense" and explaining that an ambiguity does not only exist when parties do not agree on a wills interpretation).

(118.) CORNELISON, supra note 15, at 819.

(119.) See Melius, supra note 83, at 59; Smith v. Bell, 31 U.S. 68, 74 (1832).

(120.) PAGE supra note 93, at 296.

(121.) E.g., In re Hurley's Estate, 248 N.W. 194, 195-96 (S.D. 1933) ("[T]he plain meaning of the words of a will cannot be disturbed by evidence that the testator intended another meaning."); DUKEMINIER, supra note 7, at 328.

(122.) In re Estate of Martin, 2001 SD 123, [paragraph] 20, 635 N.W.2d 473, 477 (citing Klauzer, 2000 SD 7, [paragraph] 9, 604 N.W.2d at 477).

(123.) THOMPSON, supra note 1, at 274.

(124.) Page, supra note 93, at 68.

(125.) Colton v. Colton, 127 U.S. 300, 309 (1888). See, e.g., In re Swenson's Estate, 230 N.W. 884, 887 (S.D. 1930) (holding extrinsic evidence supported testator's motivation for omitting his daughter from his will was because she was in a state institution).

(126.) PAGE supra, note 93, at 80-82 (footnotes omitted). See also Schalk v. Dickinson, 232 N.W.2d 140, 143-144 (S.D. 1975) (examining testator's relationship to granddaughter to determine intention to disinherit).

(127.) See infra note 128 and accompanying text.

(128.) See In re Estate of letter, 1997 SD 125, [paragraph] 27, 570 N.W.2d 26, 32 (considering the testimony of a disinterested witness present during will signing); In re Estate of Klauzer, 2000 SD 7, [paragraph] 15, 604 N.W.2d 474, 478 (comparing prior will with current will); Luke v. Stevenson, 2005 SD 51, [paragraph][paragraph] 12-13, 696 N.W.2d 553, 558-59 (allowing conversation with wife and testimony from previous litigation); Schalk, 232 N.W.2d at 144-45 (assessing letters and gifts exchanged between testator and grandchild as well as depositions of witnesses, including will drafter).

(129.) See supra note 128.

(130.) Melius, supra note 83, at 61; THOMAS E. ATKINSON, HANDBOOK OF THE Law OF WILLS 813 (2d ed. 1953) [hereinafter Atkinson] (stating the "process of interpretation is not always possible.")

(131.) Page supra note 93, 11-12. See also In re Estate of Barrett, 18 N.W.2d 787, 790 (S.D. 1945) (stating "[b]efore resort may be had to rules of construction preference, it must appear that a testator left room for doubt as to his intention").

(132.) ATKINSON, supra note 130, at 809. See also In re Burns' Estate, 100 N.W.2d 399, 404 (S.D. 1960).

(133.) Atkinson, supra note 130, at 809-10.

(134.) See In re Estate of Klauzer, 2000 SD 7, [paragraph] 9, 604 N.W.2d 474, 477; Briggs v. Briggs, 45 N.W.2d 62, 65 (S.D. 1950).

(135.) See infra notes at 136-142.

(136.) Briggs, 45 N.W.2d at 66; ATKINSON, supra note 130, at 814-15.

(137.) See Briggs, 45 N.W.2d at 66 ("All the parts of a will are to be construed in relation to each other, as, if possible, to form one consistent whole but where several parts are absolutely irreconcilable, the later must prevail.") (quoting S.D.C.L. [section] 29-5-5 (repealed) (original version SDC 56.0305)). Chapter 29 of the code was replaced with the Uniform Probate Code in 1995. See S.D.C.L. [section] 29A-1-101 (1995). Chapter 29A did not specifically include the canon codified in S.D.C.L. [section] 29-5-5. See id. The canon is still viable however, since the Uniform Probate Code provides that "[u]nless displaced by the particular provisions of this code, the principles of law and equity supplement its provisions." S.D.C.L. [section] 29A-1-103 (1995).

(138.) See Briggs, 45 N.W.2d at 67 (citation omitted).

(139.) PAGE, supra note 93, at 142-47 (explaining that the presumption against disinheritance is a question of constmction only).

(140.) Melius, supra note 83, at 63-64. See also In re Estate of Jetter, 1997 SD 125, 32-34, 570 N.W.2d 26, 32 (noting with reference to a finding of ambiguous language that it seemed more logical that testator meant for unknown relatives to take residual estate than to have it escheat to the state).

(141.) Melius, supra note 83, at 63.

(142.) Jetter, 1997 SD 125, [paragraph] 12, 570 N.W.2d at 32 (acknowledging that a testator may expressly disinherit an individual or class of heirs through the use of a disinheritance clause). See also In re Estate of Swenson, 230 N.W. 884, 887 (S.D. 1930) (holding language supported that testator's motivation for omitting his daughter from his will was because she was in a state institution); In re Estate of Eden, 99 S.W.3d 82, 86, 93 (Tenn. Ct. App. 1995) (holding that testator disinherited two of his four children by necessary implication, even though the testator enjoyed a cordial relationship with all his children); Page, supra note 93, at 147.

(143.) Melius, supra note 83, at 61.

(144.) Id.

(145.) See ATKINSON, supra note 130, at 813-14 (explaining that will construction is necessary when interpretation fails).

(146.) Bogert, ET AL., supra note 10, at 72-73.

(147.) Id.

(148.) See id. (commenting that an appropriate inquiry into will language is whether the language indicates that the testator meant to control the disposition or merely to influence or advise).

(149.) See In re Estate of Nelson, 274 N.W.2d 584, 588 (S.D. 1978) (noting a word cannot always be construed as mandatory or advisory simply by viewing it in isolation).

(150.) BOGERT, ET AL., supra note 10, at 90; Smith v. Trs. of the Baptist Orphanage of Va., 75 S.E.2d 491, 495 (1953) (holding that a fee simple estate expressly given to son in will was not diminished by a wish expressed in codicil).

(151.) BOGERT, ET AL., supra note 10, at 93-94.

(152.) See Novak v. Novak, 2007 SD 108, [paragraph][paragraph] 12-15, 741 N.W.2d 222, 226-27 (finding the word "wish" not precatory language when read in connection with entire will).

(153.) See Briggs v. Briggs, 45 N.W.2d 62, 67 (S.D. 1950) (stating '"no will has a brother' ... if a testator's intention is to prevail, precedents cannot be accorded too great an influence in the construction of his will").

(154.) See Colton v. Colton 127 U.S. 300, 313 (1888) (noting that it is difficult to have a rigid test for determining whether precatory language in a will is obligatory).

(155.) In re Estate of Walsh, 239, N.W. 240, 241. See also In re Estate of Nelson, 274 N.W.2d 584, 588 (S.D. 1978) (noting that, to determine the meaning of a will, courts "will look to the express intention of the testator, as found from the context of the will").

(156.) 2007 SD 108, 741 N.W.2d 222.

(157.) 167 N.W. 394 (S.D. 1918).

(158.) See infra notes 159-160 and accompanying text.

(159.) Novak, 2007 SD 108, [paragraph][paragraph] 12-15, 741 N.W.2d at 226-27.

(160.) Wynea's, 167 N.W. at 395-96.

(161.) See Briggs v. Briggs, 45 N.W.2d 62, 67 (1950) (commenting that "precedents cannot be accorded too great an influence in the construction of [a] will"). See also Smith v. Dolan, 197 N.W.2d 416, 417 (1972) (stating "it is an endless and hopeless task to try to reconcile the judicial decisions on the various phrases of the persons who are to take property...."). Accord In re Estate of Nelson, 274 N.W.2d 584, 588 (S.D. 1978) (examining surrounding circumstances to ascertain whether words were precatory or mandatory in nature).

(162.) See Melius, supra note 83, at 60 (stating that extrinsic evidence allows a court to "place itself in the place of the testator, to see things as the testator saw them, and to apply the testator's language as he intended").

(163.) PAGE, supra note 93, at 67-68.

(164.) See infra Part IV.A-B.

(165.) See infra notes 169-180 and accompanying text.

(166.) See infra notes 190-195 and accompanying text.

(167.) See infra Part IV.B.

(168.) See infra Part IV.C.

(169.) Compare Briggs v. Briggs, 45 N.W.2d 62, 65-66 (S.D. 1950) (explaining that the irreconcilable language canon of construction is to be used only when language is ambiguous), and ATKINSON, supra note 130 at 813-15 (explaining that "the last of two inconsistent provisions prevails" when interpretation is not possible), with In re Estate of Kesling, 2012 SD 70, [paragraph][paragraph] 10-11, 822 N.W.2d 709, 711 (stating that the use of "shall" equated to mandatory instruction, and stating that "wish" need not be considered, because "shall" was subsequently used by the testator).

(170.) Kesling, 2012 SD 70, [paragraph] 3, 822 N.W.2d at 710.

(171.) Id. [paragraph][paragraph] 10-11, 822 N.W.2d at 711.

(172.) Id.

(173.) Id. [paragraph] 7, 822 N.W.2d at 711.

(174.) Melius, supra note 83, at 62 (noting the four-comers test is based on the supposition that the testator had a uniform purpose throughout the will).

(175.) See Kesling, 2012 SD 70, [paragraph] 10-11, 822 N.W.2d at 711 (stating that the use of "shall" after the conjunction "and" created an independent clause); Briggs v. Briggs, 45 N.W.2d 62, 66 (S.D. 1950) (explaining the canon of construction that later provisions in a will control previous provisions if irreconcilable).

(176.) See supra notes 143-145.

(177.) In re Estate of Seefeldt, 2006 S.D. 74, [paragraph] 8, 720 N.W.2d 647, 653.

(178.) In re Estate of Bock, 177 N.W.2d 734, 735 (S.D. 1970). See also Seefeldt, 2006 S.D. 74, [paragraph] 16, 720 N.W.2d at 653.

(179.) Id. [paragraph] 16, 720 N.W.2d at 653.

(180.) Kesling, 2012 SD 70, 1 3, 822 N.W.2d at 710. See also Bock, 177 N.W.2d at 735 (commenting that a court's determination that words or phrases are meaningless would accuse a testator of committing a useless act); Seefeldt, 2006 SD 74, [paragraph] 16, 720 N.W.2d at 653 (noting "failing to acknowledge the difference between 'suggest' and a controlling provision in testator's would render the word 'suggest' meaningless").

(181.) See Kesling, 2012 SD 70, [paragraph] 10-11, 822 N.W.2d at 711 (interpreting 'and' as a separating word to create independent clauses and relying on capitalization to determine intent).

(182.) See id. (emphasis in parenthetical added) (stating, "James wrote that his estate, not Sandra's estate, shall be divided among his daughters. James capitalized "estate" which shows that James is referring back to his estate as referenced in the beginning of the sentence.").

(183.) See id. [paragraph] 3, 822 N.W.2d at 710 (containing the words "my Estate" in the first half of the sentence, but only the words "the Estate" after the conjuncture).

(184.) See id. [paragraph] 10-11. 822 N.W.2d at 711 (interpreting "and" as a separating word to create independent clauses and relying on capitalization to determine intent).

(185.) See supra notes 98-99.

(186.) Compare William Strunk, Jr. & E.B. White, The Elements of Style 94 (4th ed. 2000) (explaining that capitalization indicates a proper noun), with Smith v. Bell, 31 U.S. 68, 83-84 (1832) (noting that strict interpretation of grammar should not negate otherwise obvious intent), and In re Estate of Nelson, 250 N.W.2d 286, 288 (S.D. 1978) (noting that the testator's words in her will were not a "model of grammatical astuteness" but were none the less sufficient to convey her intent).

(187.) Kesling, 2012 SD 70 [paragraph] 3, 822 N.W.2d at 710. Furthermore, the Court's written opinion did not transcribe all the capitalization found in the original will. Compare id. [paragraph] 2, 822 N.W.2d at 710 (Court's transcribed version of will) with Appellant's Brief supra note 27, at app. 2.1-2.2 (original copy of will). See Appendix.

(188.) See supra notes 98-100 (explaining grammar's limited role in ascertaining intent).

(189.) See infra notes 190-195 (explaining how the Court's use of grammar with respect to the word "and" was not in accordance with the traditional application of the plain meaning rule).

(190.) Kesling, 2012 SD 70, [paragraph] 11, 822 N.W.2d at 711.

(191.) See Melius, supra note 83, at 58 (commenting that South Dakota follows the plain meaning rule).

(192.) Bryan A. Garner, The Redbook: A Manual on Legal Style (3d ed. 2013) (stating that "a conjunction joins two or more words, phrases, clauses, or sentences. It may coordinate one element with another as equals ... or subordinate one element to another...."). See also WEBSTER'S THIRD New International Dictionary 80 (1993). Webster's provides for a plethora of definitions relating to the word "and." Id. For example one definition indicating connection states "along with or together with ... added to or linked to ... conjoin word with word ... or phrase with phrase ... or clause with clause ... or combinations thereof...." Id. Another example, stated that "and" is a "[]variation or difference ... or [] logical semantic modification of one notion by another as when [] two elements are joined so that the second logically qualifies the first...." Id.

(193.) See supra note 192 and accompanying text.

(194.) See supra note 192; Kesling, 2012 SD 70, [paragraph] 3, 822 N.W.2d at 710 (emphasis in parenthetical added) ("It is my wish that my Estate be Administrated my By my daughters and and [sic] upon Sandra L. Kesling [sic] death the Estate shall be divided Equally between my 3 daughters (over) I James W. Kesling being of Sound Mind and body do Hereby Sign this Document.").

(195.) See Kesling, 2012 SD 70, [paragraph] 7, 822 N.W.2d at 711; CORNELISON, supra note 15, at 819.

(196.) See infra 197-206 and accompanying text.

(197.) See In re Estate of Eden, 99 S.W.3d 82, 93 (Tenn. Ct. App. 1995) (holding that testator disinherited son and daughter by necessary implication when testator devised all his property to others); Page, supra note 93, at 142-47.

(198.) See supra note 197.

(199.) See infra notes 200-202 (explaining why the intended meaning of the word wish determines the nature of the estate devised to Sandra).

(200.) See BOGERT, ET AL., supra note 10, at 90 (explaining that an absolute gift of property will not normally be diminished to a lesser estate if it is followed by precatory words).

(201.) See Novak v. Novak, 2007 SD 108, TI 12-15, 741 N.W.2d 222, 226-27 (finding the word "wish" to be a mandatory instruction when read in connection with entire will).

(202.) See In re Estate of Klauzer, 2000 SD 7, 51 9, 604 N.W.2d 474, 477 (explaining that court looks at extrinsic evidence when the testator's intent is uncertain); In re Estate of Walsh, 239 N.W. 240, 241 (S.D. 1931) (explaining that the court looks at a word's context to determine the word's intended meaning).

(203.) See In re Estate of Kesling, 2012 SD 70, 51 11, 822 N.W.2d 709, 711; Klauzer, 2000 SD 7, f 9, 604 N.W.2d at 477 (stating when "intent is clear ... that intent controls").

(204.) See Kesling. 2012 SD 70, 51 7, 822 N.W.2d at 711 (citing In re Estate of Seefeldt, 2006 S.D. 74, 5| 7, 720 N.W.2d 647, 649 (explaining canons are used after a will is deemed ambiguous). See also PAGE, supra note 93, at 142-47 (explaining that the presumption against disinheritance is a question of construction only).

(205.) See supra notes 82-85 and accompanying text (discussing testator's freedom to devise property in any manner that he sees fit).

(206.) See In re Blake's Estate, 18 N.W.2d 242, 246 (S.D. 1965) (noting that "the law does not require that [a testator] recognize his relatives equally or at all"). See also In re Estate of Flohl, 764 So. 2d 802 (Fla. Dist. Ct. App. 2000) (holding that the court was not free to disregard a testator's intent merely because the testator chose to leave his property to another rather than his son); In re Goltz's Estate 238 N.W. 374, 376 (Wis. 1931) (holding "a court cannot indirection, change the will of the testator so as to accomplish what might seem a more equitable division of his estate.").

(207.) See infra notes 210-225 and accompanying text.

(208.) Kesling, 2012 SD 70, [paragraph] 20-21, 822 N.W.2d at 713 (Severson, J., dissenting).

(209.) Id. [paragraph] 7, 822 N.W.2d at 711 (majority opinion).

(210.) See supra notes 159-160 and accompanying text.

(211.) Novak v Novak, 2007 SD 108, [paragraph][paragraph] 12-15, 741 N.W.2d 222, 226-27.

(212.) In re Wynea's Estate, 167 N.W. 394, 395-96 (S.D. 1918).

(213.) Compare Kesling, 2012 SD 70, [paragraph] 3, 822 N.W.2d at 710 (language of the will), with Wynea, 167 N.W. at 394-95 (same), and Novak, 2007 S.D. 108, [paragraph] 12, 741 N.W.2d at 226 (same).

(214.) See Briggs v. Briggs, 45 N.W.2d 62, 67 (S.D. 1950) (stating "no will has a brother" and that "precedents cannot be accorded too great an influence"). See also Smith v. Dolan, 197 N.W.2d 416, 417 (S.D. 1972) (stating "[i]t is an endless and hopeless task to try to reconcile the judicial decisions on the various phrases of the persons who are to take property ... and that precedents may be of little value").

(215.) See In re Barrett's Estate, 18 N.W.2d 787, 789 (S.D. 1945) (stating, "[i]t is axiomatic that in gathering the intention of the testator a will must be considered as a whole").

(216.) Kesling, 2012 SD 70, [paragraph] 18-22, 822 N.W.2d at 712-13 (Severson, J., dissenting).

(217.) Id.

(218.) Id. [paragraph] 19, 822 N.W.2d at 712-13.

(219.) Id.

(220.) Id.

(221.) In re Estate of Roehr, 2001 SD 85, [paragraph] 9, 631 N.W.2d 600, 603 (citing Estate of Klauzer, 2000 SD 7, [paragraph] 9, 604 N.W.2d 474, 477); Melius, supra note 83, at 58.

(222.) See PAGE, supra note 93, at 67-68 (stating that circumstantial evidence should be used when language in a will is ambiguous, so as to put the court "in the position in which testator was when he made the will"). The Court itself acknowledges that circumstantial evidence should be used when the language of a will is ambiguous. Kesling, 2012 SD 70, [paragraph] 7, 822 N.W.2d at 711.

(223.) See PAGE supra, note 93, at 80-82 (footnotes omitted) (listing the various circumstances commonly considered). See also Schalk v. Dickinson, 232 N.W.2d 140, 143-144 (S.D. 1975) (examining testator's relationship to granddaughter to determine intention to disinherit); In re Estate of Swenson, 230 N.W. 884, 887 (S.D. 1930) (holding circumstantial evidence supported that testator's motivation for omitting his daughter from his will was because she was in a state institution).

(224.) See Appellant's Reply Brief, supra note 46, at 10-11 (reviewing circumstances that may have influenced James' to devise his property to Sandra in fee simple).

(225.) See CORNELISON, supra note 15, at 819 (explaining that the plain meaning rule permits extrinsic evidence when language in a will is susceptible to more than one reasonable interpretation).

Jarell A. Dillman, J.D. Candidate, 2016, University of South Dakota School of Law; B.S. in Criminal Justice, 2008, Utah Valley University. I would like to thank my ever patient and encouraging editorial team: Ashlee Wendt, Aron Hogden, Elizabeth Chrisp and Jonathon Sanborn. I would also like to recognize the Von Wald Law Office for its contribution to the realization of this article. Most importantly I would like to thank my loving family--especially my wife, Penny. This article would not have been possible without their tireless and faithful support.
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