#26204-a-DG

2012 S.D. 70

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

In the Matter of the Estate of

JAMES W. KESLING, Deceased.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE FIFTH JUDICIAL CIRCUIT

WALWORTH COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE SCOTT P. MYREN

Judge

* * * *

JOHN R. VON WALD of

Von Wald Law Offices

Selby, South Dakota Attorneys for appellant

Sandra L. Kesling.

ONNA B. HOUCK of

Cutler & Donahoe LLP

Sioux Falls, South Dakota Attorneys for appellee,

Estate.

* * * *

CONSIDERED ON BRIEFS

ON MAY 21, 2012

OPINION FILED 10/17/12
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GILBERTSON, Chief Justice.

[¶1.] James W. Kesling executed a holographic will. After James died, the 

will was admitted into probate and James’s three daughters were appointed as copersonal representatives of James’s estate. Both the Estate and James’s wife, 

Sandra, petitioned the circuit court to construe the will. The Estate moved for 

summary judgment and the circuit court granted the motion. Sandra appeals, 

arguing that the will is ambiguous, and thus, the court erred by not considering 

extrinsic evidence as to James’s intent. 

FACTS

[¶2.] James Kesling executed a holographic will on April 2, 2008, and passed 

away on July 4, 2008. He was survived by his wife, Sandra, and three daughters 

from a previous marriage, Kandi Smith, Staci Stern, and Jami Mendoza. Sandra 

and James had been married for twenty-nine years and did not have any children 

together. 

[¶3.] The holographic will read as follows:

April 2, 2008

10:00 A.M.

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 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. 
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Kesling being of Sound Mind and body do Hereby Sign this 

Document.

James signed the document and Sandra notarized it. After James died, the will was 

admitted into probate and James’s three daughters were appointed as co-personal 

representatives of James’s estate. 

[¶4.] The daughters and Sandra did not agree on the meaning of James’s 

will. The daughters believed that James intended to give Sandra a life estate in his 

real and personal property with a remainder to the three daughters. Sandra 

believed that James intended to leave all property with Sandra outright with the 

“wish” that Sandra would then pass her property to James’s daughters when 

Sandra passed away, or that if Sandra predeceased James, the daughters would 

inherit James’s property upon his death. Both the Estate and Sandra petitioned 

the court to construe the will. 

[¶5.] The Estate moved for summary judgment. After a hearing, the circuit 

court granted the motion, holding that the will unambiguously demonstrates 

James’s intent to devise his real and personal property to Sandra for life with the 

three daughters as remaindermen. Sandra appeals.

STANDARD OF REVIEW

[¶6.] “We review the interpretation of a will under the de novo standard of 

review, with no deference given to the circuit court’s interpretation.” In re Estate of 

Seefeldt, 2006 S.D. 74, ¶ 7, 720 N.W.2d 647, 649. 
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ANALYSIS

[¶7.] “The primary goal in interpreting a will is to determine the testator’s 

intent.” Id. ¶ 8. “In determining testamentary intent, all words and provisions 

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

aside as meaningless.” Id. “If the intent is clear from the language used, that 

intent controls.” Id. “If doubt exists as to the testator’s intent, the language used 

and the circumstances surrounding the execution of the writing will again be 

examined in light of pertinent rules of construction.” Id. 

[¶8.] Testamentary “[l]anguage is ambiguous when it is reasonably capable 

of being understood in more than one sense.” In re Estate of Klauzer, 2000 S.D. 7, ¶ 

10, 604 N.W.2d 474, 477. “An ambiguity is not of itself created simply because the 

parties differ as to the interpretation of the will.” Id. “Extrinsic evidence is 

admissible to clarify any ambiguity.” Id. 

[¶9.] Here, the parties’ dispute revolves around the fourth sentence of 

James’s will, which reads: “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[.]” The Estate argues that this language 

is unambiguous and demonstrates James’s intent to give Sandra a life estate in his 

property with his three daughters as remaindermen. Sandra responds that the 

fourth sentence is ambiguous because it is reasonably capable of being understood 

in at least three ways: (1) devising all property to Sandra with the “wish” that she 

then pass it on to the daughters upon her death; (2) devising all property to Sandra 

unless Sandra predeceases James, and in that case, devising all property to the 
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three daughters; and (3) the Estate’s interpretation. Thus, Sandra argues, the 

circuit court erred by not considering extrinsic evidence to determine James’s 

intent. Sandra emphasizes James’s use of the noun “wish” at the beginning of the 

fourth sentence. We find Sandra’s arguments unpersuasive. 

[¶10.] Sandra’s first interpretation of the fourth sentence (that it devises all 

property to Sandra with the “wish” that she then pass it on to the daughters upon 

her death) ignores the plain language of the will. 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. In addition, James used the verb “shall” which 

demonstrates the mandatory nature of this instruction. 

[¶11.] As part of this first interpretation, Sandra emphasizes James’s use of 

the noun “wish” at the beginning of the sentence, arguing that “wish” equates to a 

mere suggestion that carries through the entire sentence through the conjunction 

“and.” Sandra also argues that “wish” makes the will ambiguous. We reject these

arguments. The language in the fourth sentence is not ambiguous – James’s wished 

that his three daughters would administrate his estate and James mandated that 

upon Sandra’s death, his estate be divided among his three daughters. There is no 

need to carry the noun “wish” over because James uses the verb “shall” after the 

conjunction, leaving two independent clauses. Furthermore, the will as a whole 

demonstrates James’s intent to include his daughters from a previous marriage in 

his estate. The will’s language does not show any intent by James to possibly

disinherit his three daughters by devising all of his property to Sandra outright 
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with the mere hope that she would then pass her estate on to the daughters, 

especially considering the fact that James named the daughters as personal 

representatives of his estate. Therefore, we conclude that Sandra’s first 

interpretation of James’s will is unreasonable.

[¶12.] Sandra’s second interpretation of the fourth sentence is that it devises 

all property to Sandra unless Sandra predeceases James, and in that case, it 

devises all property to the three daughters. However, in reading James’s will as a 

whole, we reject this interpretation. None of the language James used in the will

addresses the issue of Sandra predeceasing him. Instead, the will only addresses 

issues arising after James’s death. Moreover, in the first part of the fourth 

sentence, James discusses who will administrate his estate. It is not reasonable to 

interpret the second half of the fourth sentence as addressing Sandra predeceasing 

James when the first half of the same sentence covers the administration of James’s 

estate, an event independent of Sandra’s death. Instead, James’s unambiguous 

language demonstrates that the fourth sentence concentrates on situations arising

after James’s death. Therefore, we also find this interpretation of James’s will 

unreasonable. 

[¶13.] The only reasonable interpretation of James’s will is that James 

intended to give Sandra a life estate in his real and personal property with James’s 

three daughters as remaindermen. James used unambiguous language that is not 

reasonably capable of being understood in more than one sense. Extrinsic evidence 

is only admissible to clarify an ambiguity, and thus, is not needed in this case. “We 
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determine that [James’s] intent is clearly expressed within the four corners of the 

document.” See Klauzer, 2000 S.D. 7, ¶ 14, 604 N.W.2d at 478.

CONCLUSION

[¶14.] We conclude that James’s intent is clearly expressed within the four 

corners of his holographic will and extrinsic evidence is not needed. We are bound 

by the unambiguous language of the will, which demonstrates James’s intent to 

give Sandra a life estate in his property with his three daughters as remaindermen. 

[¶15.] Affirmed.

[¶16.] KONENKAMP and ZINTER, Justices, concur.

[¶17.] SEVERSON and WILBUR, Justices, dissent.

SEVERSON, Justice (dissenting).

[¶18.] I respectfully dissent. “Our goal ‘in interpreting a will is to discern the 

testator’s intent.’” Novak v. Novak, 2007 S.D. 108, ¶ 12, 741 N.W.2d 222, 226 

(quoting In re Estate of Klauzer, 2000 S.D. 7, ¶ 9, 604 N.W.2d 474, 477). “If intent is 

clear from the language used, that intent controls.” In re Estate of Roehr, 2001 S.D. 

85, ¶ 9, 631 N.W.2d 600, 603 (quoting Estate of Klauzer, 2000 S.D. 7, ¶ 9, 604 

N.W.2d at 477) (internal quotation marks omitted). However, “[i]f doubt exists as to 

the testator’s intent, ‘the language used and the circumstances surrounding the 

execution of the writing will . . . be examined in light of pertinent rules of 

construction.’” In re Estate of Seefeldt, 2006 S.D. 74, ¶ 8, 720 N.W.2d 647, 649 

(quoting In re Estate of Brownlee, 2002 S.D. 142, ¶ 16, 654 N.W.2d 206, 210). In 

this case, the majority opinion concludes that we need not consider extrinsic 
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evidence because “[t]he only reasonable interpretation of James’s will is that James 

intended to give Sandra a life estate in his real and personal property with James’s 

three daughters as remaindermen.” Majority Opinion, supra ¶ 13. I disagree.

[¶19.] James’s will states, “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.” 

(Emphasis added.) By using the term “will,” James clearly directed his property to 

pass to his wife. However, the language James used in the following sentence of his 

will was less definite: “It is my wish That my Estate be Administrated my By my 

daughters and and [sic] upon Sandra L. Kesling[’s] death the Estate shall be divided 

Equally between my 3 daughters . . . .” (Emphasis added.) If this sentence is read in 

conjunction with the remaining provisions of the will, it is unclear whether James 

intended “to control the disposition of his property,” or whether he was “simply 

indicating what he regard[ed] as a wise disposition.” In re Estate of Nelson, 274 

N.W.2d 584, 587 (S.D. 1978) (citation omitted). 

[¶20.] We have recognized, “It is not necessary that technical words be used 

to make a disposition of property.” Estate of Nelson, 274 N.W.2d at 587. But we 

have noted that “an instrument which is merely precatory, i.e., it advises or 

recommends a disposition but leaves the actual disposition of the property within 

the discretion of another, is not testamentary in character.” Id. “Whether words in 

a will are to be construed as mandatory or as merely precatory is not always solely 

determinable by the nature of the words themselves . . . .” Id. at 588 (citation 
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omitted). The meaning of such words “must be determined from the manner in 

which such words are used in connection with other phraseology of the will.” In re 

Walsh’s Estate, 59 S.D. 277, 239 N.W. 240, 241 (1931) (citation omitted). See Estate 

of Nelson, 274 N.W.2d at 588 (noting that, to determine the meaning of a will, this 

Court “will look to the expressed intention of the testator, as found from the context 

of the will”).

[¶21.] After reading James’s will in its entirety, one could reasonably 

conclude, as the majority opinion does, that James intended to grant his wife a life 

estate in his real and personal property, with James’s three daughters as 

remaindermen. But one could also reasonably conclude that James intended to 

grant his wife a fee simple interest in his property. Although James expressed a 

“wish” that his estate would be divided equally between his three daughters upon 

his wife’s death, one could reasonably conclude that James intended this to be a 

recommendation to his wife regarding the future disposition of his property, not a 

binding command. 

[¶22.] In determining whether testamentary language is ambiguous, we have 

stated: “Language is ambiguous when it is reasonably capable of being understood 

in more than one sense.” In re Estate of Jetter, 1997 S.D. 125, ¶ 20, 570 N.W.2d 26, 

30-31 (quoting In re Estate of Olson, 332 N.W.2d 711, 713 (S.D. 1983)). “Where a 

will is ambiguous on its face, . . . extrinsic evidence is admissible to establish the 

intent of the testator.” Id. ¶ 27 (citing In re Estate of Nelson, 250 N.W.2d 286, 288 

(S.D. 1977); In re Estate of King, 278 N.W.2d 171, 173 (S.D. 1979)). Here, James’s 

will is reasonably capable of being interpreted in more than one sense. The circuit 
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court thus erred in refusing to consider extrinsic evidence of the testator’s intent. 

For this reason, I respectfully dissent. 

[¶23.] WILBUR, Justice, joins this dissent.