#24127, #24142-rev & rem in pt & aff in pt-DG 

2008 SD 4

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

In the Matter of the Estate of 

GLENN E. OLSON, 

Deceased. 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE FIRST JUDICIAL CIRCUIT 

CLAY COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE ARTHUR L. RUSCH 

Judge 

* * * * 

 

THOMAS E. ALBERTS Attorney for appellant 

Avon, South Dakota James W. Olson. 

CRAIG K. THOMPSON Attorney for appellee 

Vermillion, South Dakota Wayne A. Olson, Personal Rep./ 

Estate. 

* * * * 

ARGUED ON JANUARY 10, 2007 

REASSIGNED JUNE 4, 2007 

 OPINION FILED 01/09/08
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#24127, #24142 

GILBERTSON, Chief Justice (on reassignment). 

[¶1.] Wayne Olson, in his capacity as the personal representative of Glenn 

Olson’s estate, sold real property that had been specifically devised to James Olson 

and other devisees as tenants in common. Personal property passing under the 

residuary clause was also sold at public auction. The trial court confirmed the sales 

but sanctioned the personal representative $1,000 for failing to give James advance 

notice of the public auctions. We reverse and remand in part and affirm in part. 

FACTS AND PROCEDURAL HISTORY 

[¶2.] Glenn Olson died testate on August 3, 2002. At the time of his death, 

he owned approximately 132 acres of farmland, including a homestead. This realty 

and home, which was built in 1900, had been in the Olson family for generations. 

Although apparently a modest homestead by current standards, Glenn had spent 

his entire life living in it while farming the adjoining land. His sister also lived in 

the homestead and took care of housekeeping chores. Wanting to keep this farm in 

the family he wrote a will where he specifically devised this real estate to James 

and six other nieces and nephews (collectively heirs). Glenn’s personal property 

was devised to the same heirs through the residuary clause. 

[¶3.] Probate of Glenn’s will is subject to South Dakota’s Uniform Probate 

Code (UPC) as it was drafted subsequent to South Dakota’s implementation of the 

UPC in 1995. Therefore, his estate was informally probated in accordance with the 

UPC.1 Wayne was appointed personal representative in September 2002. 

1. James did not exercise his right to require that the estate be formally 

administered. 
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Following his appointment, Wayne determined that the buildings on the homestead 

were in such poor condition that they constituted a drain on the estate. 

Consequently, without the notice to the heirs as required by SDCL 29A-3-715(b), he 

sold the specifically devised real property at a public auction. The personal 

property was sold separately, also without the same requisite notice to the heirs. 

The trial court found as a finding of fact, “[t]he only notice of the sale given by the 

personal representative was 1 or 2 years earlier when he wrote the other heirs 

indicating that he was considering whether it should be sold.” It entered a 

conclusion of law that “Wayne Olson’s notices were inadequate.” At oral argument 

Wayne conceded that the sales did not comply with SDCL 29A-3-715(b). 

[¶4.] James had filed a demand for notice pertaining to the estate under 

SDCL 29A-3-204, which requires that any “order or filing” pertaining to the estate 

not be “made or accepted” without providing notice to James. According to Wayne, 

he conducted the public auction of the real and personal property under SDCL 29A3-711, which provides that personal representatives may exercise their powers 

“without notice, hearing, or order of court.” 

[¶5.] James ultimately did receive legal notice of the completed sales 

through the filing of the summary of these public sales. He also received notice of 

the motion to confirm the sales. James appeared and objected to the confirmation of 

both sales. Following a hearing on the motion, the trial court confirmed the sales, 

finding that the land was a drain on the estate, the sales were conducted in a 

reasonable manner, and the land brought an exceptional price exceeding market 
#24127, #24142 

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value. Ultimately, the trial court concluded that “[t]he evidence is abundant that 

the sale [of real property] was conducted for a good reason.” 

[¶6.] James did not object to the court’s finding that there was good reason 

to sell the property. Instead, James argued that Wayne did not have the power to 

sell specifically devised property. James also claimed that he was entitled to 

advance notice of the public auctions under SDCL 29A-3-204 and SDCL 29A-3-

715(b). The trial court ultimately concluded that Wayne possessed a power of sale 

under the UPC. Although the court also found that Wayne did not give advance 

notice of the public auctions as required by SDCL 29A-3-715(b), it concluded that 

James had not been damaged by the lack of notice. Therefore, the sales were not 

voided on this basis. Instead, the court sanctioned Wayne $1,000 for failing to give 

advance notice. 

[¶7.] We have restated the parties’ issues2 on appeal as follows: 

 

2. James also raised a “partition” issue using the following language: “Was the 

personal representative entitled to partition real estate which is the subject 

of a specific bequest in the decedent’s will without complying with SDCL 29A3-911[referring to notice].” SDCL 29A-3-911 does not contain procedural 

notice requirements other than noting that a partition may be allowed 

“[a]fter notice to the interested heirs or devisees.” Id. Furthermore, SDCL 

29A-3-911 only applies when “the personal representative or one or more of 

the heirs or devisees [petitions] the court prior to the formal or informal 

closing of the estate, to make partition.” Id. Here, there was no petition to 

partition under SDCL 29A-3-911. This was a sale dispute only involving a 

motion to confirm the sale of land under SDCL 29A-3-704. As the trial court 

explicitly found, Wayne “invoked the power of the court under SDCL 29A-3-

704 to request court approval of the sales.” Because this was not a civil 

partition action under SDCL 29A-3-911 or SDCL ch 21-45 (governing the 

general civil remedy of partition), but was a confirmation of sale proceeding 

under SDCL 29A-3-704, we decline to address James’ notice issue under 

SDCL 29A-3-911 or SDCL ch 21-45. We only address the notice issue under 

the other statutes that were considered below. 
#24127, #24142 

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1. Whether the personal representative possessed the power to 

sell specifically devised land when the power of sale was not 

contained in the will and the sale was not necessary to pay 

estate debts. 

2. Whether the sale of personal property was void under SDCL 

29A-3-204 and SDCL 29A-3-715(b) for failure to give advance 

notice of the public auction, and if not void, was the remedy 

of damages proven. 

By notice of review, Wayne raises the following issue: 

3. Whether the trial court erred in assessing a sanction against 

the personal representative for failure to give advance notice 

of the sales. 

STANDARD OF REVIEW 

[¶8.] This Court’s standard of review is well settled: 

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. Century 21 Associated Realty v. Hoffman, 503 NW2d 861, 

864 (SD 1993) (citations omitted). . . . Questions of law are 

reviewed de novo. City of Colton v. Schwebach, 1997 SD 4, ¶8, 

557 NW2d 769, 771. “This Court interprets statutes under a de 

novo standard of review without deference to the decision of the 

trial court.” In re Estate of Jetter, 1997 SD 125, ¶10, 570 NW2d 

26, 28. 

Matter of Estate of O’Keefe, 1998 SD 92, ¶7, 583 NW2d 138, 139. 

ANALYSIS AND DECISION 

[¶9.] 1. Whether the personal representative possessed the 

power to sell specifically devised land when the 

power of sale was not contained in the will and the 

sale was not necessary to pay estate debts. 

[¶10.] James first argues that Wayne was without power to sell specifically 

devised land because there was no power of sale provision in the will and the sale of 
#24127, #24142 

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specifically devised property was inconsistent with the specific devisees’ right to 

receive property in kind. We agree. 

[¶11.] In 1877, our first Territorial Probate Code was passed which contained 

a relevant statute which was to remain in effect until the enactment of the Uniform 

Probate Code over a century later. 

When property is directed by the will to be sold, or authority is 

given in the will to sell property, the executor may sell any 

property of the estate without the order of the probate court, and 

at either public or private sale, and with or without notice, as 

the executor may determine[.] 

Section 194 Probate Code, Revised Codes 1877, re-codified as SDCL 30-22-1, 

repealed by 1995 SD Laws ch 167, § 168. In the case of In re Estate of Kappenmann, 

82 SD 91, 141 NW2d 780 (1966), this Court upheld a sale of real estate by an 

executor solely because such authority had been granted in the decedent’s will thus 

invoking the authority of the above-cited statute. In so doing, the Court noted that 

the sole other grant of authority for the sale of a decedent’s real property during 

probate was limited to situations where: 

it appears to be necessary or that it would be for the advantage, 

benefit and best interests of the estate and those interested 

therein or for the purpose of paying a debt secured by a 

mortgage or lien on such property[.] 

Id. at 782 (emphasis added) (quoting SDL 1960 Supp. 35.1501, re-codified as SDCL 

30-22-6, repealed by 1995 SD Laws ch 167, § 168). A review of the two statutes 

cited in Kappenmann establishes that prior to the enactment of the UPC, a sale of 

real estate by an executor could be legally accomplished by: (1) a grant contained in 

the will; or (2) for settlement of claims and debts; or (3) where it is in the best 

interests of the estate and the heirs. It appears that this was the general rule in 
#24127, #24142 

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many other jurisdictions. Hanson v. Hanson, 127 NW 1032, 1033 (Iowa 1910), 31 

AmJur2d Executors and Administrators § 731, 34 CJS Executors and 

Administrators § 295. 

[¶12.] As is uncontested herein, there is no such power of sale granted to 

Wayne by the decedent’s will to validate the sale. Thus, the issue now before us 

calls upon us to engage in statutory interpretation to determine if the passage of the 

Uniform Probate Code by the South Dakota Legislature in 1995 made a change so 

significant in a century old doctrine as to essentially reverse it. 

[¶13.] Some historical background of the UPC particular to South Dakota is 

of analytical assistance to guide us in the issue now before us: “[a]s an overall view, 

we would note that the UPC does not appear to be a revolutionary departure from 

past probate procedure.” Matter of Estate of Jetter, 1997 SD 125, ¶16, 570 NW2d 

26, 29. Therein, we cited to SDCL 29A-1-103 which provides that: “[u]nless 

displaced by the particular provisions of this code, the principles of law and equity 

supplement its provisions.” (Emphasis added). 

Although no legislative history exists concerning the adoption of 

the UPC, the State Bar of South Dakota published educational 

materials in June of 1994 on the enactment of the UPC in this 

jurisdiction. Co-chairman of the Probate Form Committee of the 

State Bar, Professor David English, wrote that this Committee 

created the UPC work product which was adopted by the 

Legislature. Committee member Richard Kolker wrote that 

“South Dakota’s adoption of a new probate code will not change 

the basic principles under which property is transferred from 

the decedent to the decedent’s heirs.” While this opinion is not 

binding on us any more than other commentary concerning the 

UPC, it is persuasive authority that contradicts the position 

argued by [the Estate.] 

Jetter, 1997 SD 125, ¶16 n5, 570 NW2d at 29-30 n5. 
#24127, #24142 

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[¶14.] According to legislative rules of construction applicable exclusively to 

wills, “[a] specific devisee has a right to the specifically devised property in the 

testator’s estate at death.” SDCL 29A-2-606(a).3 Also, “[u]nless a contrary 

intention is indicated by the will, the distributable assets of a decedent’s estate 

shall be distributed in kind to the extent possible through application of the 

following provisions: (1) A specific devisee is entitled to distribution of the thing 

devised.” SDCL 29A-3-906(a)(1) (emphasis added). “This section establishes a 

preference for distribution in kind [as] [i]t directs a personal representative to make 

distribution in kind whenever feasible.” UNIF. PROBATE CODE § 3-906 cmt (amended 

1987). 

[¶15.] Furthermore, “[u]pon the death of a person, that person’s real and 

personal property devolves to the persons to whom it is devised by will.” SDCL 

29A-3-101. This statute makes it clear that Glenn’s real property vested in James 

and the other six nieces and nephews at the time of Glenn’s death, subject only to 

the probate of the estate. See In re Estate of Roehr, 2001 SD 85, ¶6, 631 NW2d 600, 

602. 

3. The dissent’s analysis that “SDCL 29A-2-606 does not apply because that 

statute deals with the issue of ademption” is simply incorrect. This claim is 

flatly contradicted by the opening provision of that chapter, SDCL 29A-2-601 

which declares, “[i]n the absence of a finding of a contrary intention, the rules 

of construction in this part control the construction of a will.” Moreover, the 

title of chapter 29A-2 is “Rules of Construction Applicable Only to Wills.” 

This also fails to consider the unrestricted language of SDCL 29A-1-102 

which declares that “[t]his code shall be liberally construed and applied to 

promote simplification, clarification, and efficiency in the law of decedent’s 

estates.” 
#24127, #24142 

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[¶16.] Unlike pre-UPC law requiring that a power of sale be in the will, 

personal representatives now possess a statutory power of sale unless a contrary 

provision is contained in the will. SDCL 29A-3-715(a) provides in relevant part: 

Except as restricted or otherwise provided by the will or by an 

order in a formal proceeding and subject to the priorities stated 

in § 29A-3-902,4 a personal representative, acting reasonably for 

the benefit of the estate, may properly: . . . 

(6) Acquire or dispose of an asset, including land . . . 

(23) Sell, mortgage, or lease any real or personal property of the 

estate or any interest therein . . . . 

(Emphasis added). 

[¶17.] Although SDCL 29A-3-715(a)(23) allows the personal representative to 

sell any real or personal property of the estate as long as he or she is acting 

reasonably for the benefit of the estate, there is an important exception to this 

statutory power of sale. This power in a fact setting such as this cannot be 

exercised if it is restricted or otherwise provided for by the will as the other 

statutory authorizations for sale are not applicable. Id. Here, the will restricts the 

power of sale through a specific devise of real property. The act of specifically 

devising the real property exhibits the testator’s clear intent that the land not be 

sold. This is also reinforced by the fact that there was no power of sale provision in 

the will. Were we to hold to the contrary, in fact situations such as this, it would 

essentially nullify the provisions of SDCL 29A-2-606(a) and 29A-3-906(a)(1). 

 

4. SDCL 29A-3-902 provides for the order of abatement and clarifies that 

specifically devised property is to abate last. Subjection of the statutory 

power of sale to this priority statute also enforces the preference against the 

sale of specifically devised property. 
#24127, #24142 

-9- 

[¶18.] A Pennsylvania court interpreting a similar statutory power of sale 

conferred upon a personal representative concluded that “no such power of sale 

exists as to real property specifically devised.” Brown v. Bailey, 2 FiducRep 342, 84 

Pa D&C 269, 274, 1953 WL 4538, at *3 (PaComPl 1952). The statute in Brown

provided that the “power of sale has no application where it is ‘otherwise provided 

by the will.’” Id. (citation omitted). Furthermore, other courts have held that “a 

general power authorizing the sale or rental of any property which the testator 

possessed at the time of death applies only to property not specifically devised.” In 

re Estate of Radjenovich, 1991 WL 70304, at *1 (MinnCtApp 1991) (unpublished) 

(emphasis added) (citing 1 R.STEIN, STEIN ON PROBATE, § 10.01b(3) (2d ed 1990)); 1 

R.STEIN, STEIN ON PROBATE, § 10.01b(3) (2d ed 1990) (“Minnesota Statutes section 

524.3—715 states, in effect, that the personal representative has power to sell 

‘except as restricted or otherwise provided by the will.’ A specific devise should be 

considered such a restriction”). See also In re De Forest’s Estate, 147 Misc 82, 88, 

263 NYS 135, 142 (NYSur 1933) (property specifically devised is not subject to 

general power of sale granted to executors); Wilkinson v. Chambers, 181 Pa 437, 

442, 37 A 569, 569 (Pa 1897); In re Estate of Gamble, 183 So2d 849, 852 

(FlaDistCtApp 1966); In re Chaney’s Estate, 120 Tex 185, 189, 36 SW2d 709, 711 

(TexComm’nApp 1931). 

[¶19.] In Radjenovich, the Minnesota Court of Appeals held the trial court 

properly found that the general powers given to the personal representative related 

only to property not specifically devised. Radjenovich, 1991 WL 70304, at *1 (citing 

In re Scott’s Will, 88 Minn 386, 388, 93 NW 109, 110 (Minn 1903)). Thus, the 
#24127, #24142 

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personal representative was not entitled to sell lakeshore property specifically 

devised to the testator’s sons. Id. Likewise, in addressing a similar situation, the 

Pennsylvania Supreme Court reasoned: 

The authority given to the executor in item 3 cannot be 

construed as extending to and including lands specifically 

devised in items 2 and 5. A construction of it which would 

enable the executor to defeat specific devises of real estate 

cannot be sanctioned. The reasonable and proper construction 

of it is that which limits it to property not specifically devised by 

the will. This construction obviously accords with the intention 

of the testator in conferring the power to sell or lease. 

Wilkinson, 181 Pa at 442, 37 A at 569. 

[¶20.] Wayne claims the will did not restrict or conflict with the statutory 

power of sale. However, the will provided for the specific devise of the real property 

and did not otherwise provide for a power of sale. This inherently conflicts with the 

statutory power of sale, for it is an indication of the testator’s intent that the real 

property not be sold. Instead, Glenn Olson intended to give his land to the specific 

devisees. 

[¶21.] The authority Wayne relies upon for approving the sale of this 

specifically devised property is also readily distinguishable. Most of the cases are 

pre-UPC and the wills in those cases expressly granted the personal representative 

a power of sale. For instance, in In re Kappenmann’s Estate, the will provided: “I 

authorize and empower my personal representative . . . if and whenever in the 

settlement of my estate he shall deem it advisable, to sell . . . the whole or any part 

of my real and personal estate.” 82 SD at 93-94, 141 NW2d at 781. Thus, there was 

no restriction on the power to sell; instead, there was an express grant of a power to 

sell. The Kappenmann Court even specified that there was no bar to the sale of 
#24127, #24142 

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specifically devised real property when it was made under a power of sale contained 

in the will, because the express authority was contained in the testator’s will. 82 

SD at 97, 141 NW2d at 783 (citing Champlin v. Powers, 80 RI 30, 90 A2d 787, 33 

ALR2d 1176)).5 

[¶22.] Thus, in the cases relied upon, including Kappenmann, the will 

established the power of sale, not a statute. Although the trial court concluded 

there was no difference between a power of sale granted by the will and a power of 

sale granted by statute, it is relevant to the testator’s intent. And, “the intention of 

the testator, as taken from the will as a whole, controls the exercise of powers 

granted to the personal representative.” Radjenovich, 1991 WL 70304, at *1 (citing 

Lovejoy v. McDonald, 59 Minn 393, 401, 61 NW 320, 321 (Minn1894)). 

[¶23.] Other courts have also recognized the distinction between a testator 

granting the power of sale as opposed to a statute: “Absent a grant of a power of 

sale by the testator, or specific instructions by the testator that the devise be sold 

before distributed, specific devises must be distributed in kind.” In re Estate of 

Polly, 511 So2d 755, 756 (FlaDistCtApp 1987) (citing generally In re Estate of 

5. In the pre-UPC case, Hutkoff v. Winmar Realty Co., Inc., 211 AD 726, 730, 

208 NYS 25 (NYAppDiv 1925), there was a “general and unrestricted” power 

of sale contained in the will. The same is true of the will in Weinstein v. 

Hunter, where a New York court held: “Looking at the will as a whole, the 

intention of the testator can hardly be mistaken. That intention . . . was to 

give to his children all of his real estate, subject however to the power of sale 

in his executors. The right of the testator to so provide in his will is not 

questioned.” 276 AD 471, 476, 96 NYS2d 1 (NYAppDiv 1950) (emphasis 

added). A power of sale was also granted by the will in Davis v. Scavone, 149 

Me 189, 191-92, 100 A2d 425, 426 (Me 1953); Stofer v. Stiltz, 179 Ky 399, 200 

SW 631, 632 (Ky 1918); Mellen v. Mellen, 34 NE 925, 928 (NY 1893); and 

Basler v. Delassus, 690 SW2d 791, 796 (Mo 1985). 
#24127, #24142 

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Smith, 200 So2d 547 (FlaDistCtApp 1967)); Gamble, 183 So2d 849 (additional 

citation omitted)) (emphasis added). In Polly, “[t]he will contained a general power 

of sale only as to the residual estate—not to the specific devises.” 511 So2d at 756. 

Thus, the Polly court ordered the specific devises be distributed in kind instead of 

sold. Id. 

[¶24.] Another court acknowledged that if the specific devisees “had elected to 

take the land as land, free from the power of sale, prior to the . . . sale by the 

executor under the power, . . . an action would lie in behalf of the parties interested, 

to enjoin the executor from selling under the power.” Mellen, 34 NE at 928. The 

Mellen court recognized that “[a] sale under such circumstances would at least 

create a cloud on the title, and an action to enjoin the sale would be an available 

and proper remedy.” Id. (citing Butler v. Johnson, 18 NE 643 (NY 1888)). 

[¶25.] Wayne would require testators to draft their wills to limit, restrict, or 

eliminate the general power of sale provided by statute in order to more clearly 

express their testamentary intent. He submits that had Glenn wished to exempt 

the specific devise from Wayne’s statutory power of sale, Glenn must have done so 

in his will. We conclude that Glenn has done just that. By providing for the specific 

devise of the property, he stated his testamentary intent to restrict its sale. 

[¶26.] Although Wayne claims that he possessed an unrestricted general 

power of sale, this is not the case. Wayne possessed a statutory power of sale that 

was subject to restrictions in the will. The will provided for the specific devise of the 

real property, which inherently prohibits a sale or at least indicates the intent to 

restrict its sale. In such a case, we should uphold the testator’s intent. If we were 
#24127, #24142 

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to adopt Wayne’s position, a personal representative could sell a family heirloom 

that was specifically devised to a family member as long as he or she was “acting 

reasonably for the benefit of the estate.” A probate administration is not an 

eminent domain proceeding where an heir’s bequest is involuntarily taken from him 

or her and they receive “just compensation” in return. Being presented by the 

personal representative with a bank draft may be a sorry alternative to the promise 

in a will that land which had been in the family for generations would vest in the 

decedent’s heirs. 

[¶27.] The facts of this case strikingly point out what the statutes protect. 

The homestead at issue was built in 1900 and initially owned by Stephord and 

Belva Olson, Glenn’s parents, prior to Glenn becoming the fee owner. Although 

Glenn’s homestead was humble by current standards or “dilapidated” as described 

by the Estate’s appraiser, it was the only place where Glenn ever lived. He lived his 

entire life there and farmed the adjoining land. It was his life. It also provided a 

home for his sister. His nieces and nephews, who he designated in his will as his 

heirs, visited him there. While the appraiser indicated such homesteads could be 

bought and sold without difficulty, that fact ignores the family’s historical and 

sentimental attachment to this land which transcends monetary valuation. It was 

not just Glenn’s investment to be sold when the opportunity for profit presented 

itself, it was his home. A review of the above statutes makes it clear that the 

Legislature has intended that protections should be, and are in place in South 

Dakota to protect a testator’s intent. 
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[¶28.] The sale should have been voided as the personal representative did 

not have authority to sell the specifically devised property unless it was necessary 

to satisfy the debts of the estate or for other valid purposes authorized by the UPC 

such as where the heirs agree it is for their best interests as well as that of the 

estate. Wayne identifies no basis which is so meritorious as to override the contents 

of Glenn’s will. Thus, today we honor Glenn’s intent as set forth in his will. 

[The decedent] wanted certain land to go to certain people. No 

two pieces of land are alike. Individual parcels of real property 

are considered to be so unique that when an action is brought for 

breach of a contract for sale of land, specific performance may be 

ordered. 

In re Estate of Siebrasse, 2002 SD 118, ¶9, 652 NW2d 384, 386. 

[¶29.] In analyzing the purpose of the UPC we concluded that “[p]eople do not 

go to a lawyer to have a will drawn with the idea that their estate will pass under 

the intestate succession laws. That is the whole purpose of a will, to avoid the 

State’s estate plan by creating your own.” Jetter, 1997 SD 125, ¶28, 570 NW2d at 

32. We reverse the trial court order confirming the sale of specifically devised real 

estate and remand for further proceedings consistent with this opinion. Upon 

remand, this will allow the third party purchaser the opportunity to intervene to 

protect his or her interests. 

[¶30.] 2. Whether the sale of personal property 

was void under SDCL 29A-3-204 and SDCL 29A-3- 

715(b) for failure to give advance notice of the 

public auction, and if not void, was the remedy of 

damages proven.6

 (continued . . .) 

6. James also asserts that the sale of real property was void for failure to give 

advance notice. However, since we have already held that the sale of real 

property was void because the personal representative lacked the power to 
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[¶31.] James argues that Wayne’s failure to give advance notice of the public 

auction voided the personal property sale under SDCL 29A-3-204 and SDCL 29A-3-

715(b). We conclude the sale was not void under SDCL 29A-3-204 or SDCL 29A-3-

715(b). 

[¶32.] SDCL 29A-3-204 provides: 

Any interested person desiring notice of any order or filing

pertaining to a decedent’s estate may file a demand for notice 

with the court at any time after the death of the decedent 

stating the name of the decedent, the nature of the demandant’s 

interest in the estate, and the demandant’s address or that of 

the demandant’s attorney. The demandant shall mail a copy of 

the demand to the personal representative if one has been 

appointed. After filing of a demand, no order or filing to which 

the demand relates shall be made or accepted without notice as 

prescribed in § 29A-1-401 to the demandant or the demandant’s 

attorney. The validity of an order which is issued or filing which 

is accepted without compliance with this requirement shall not 

be affected by the error, but the petitioner receiving the order or 

the person making the filing may be liable for any damage 

caused by the absence of notice. The requirement of notice 

arising from a demand under this provision may be waived in 

writing by the demandant and shall cease upon the termination 

of the demandant’s interest in the estate. 

 

(Emphasis added). Because James filed a demand for notice under this statute, he 

was entitled to advance notice in compliance with SDCL 29A-3-715(b) of the 

personal property sale. The language “any order or filing pertaining to a decedent’s 

estate” impliedly includes any notice of sale. SDCL 29A-3-204. Thus, a proposed 

sale of devised personal property warrants this required notice. 

________________________ 

(. . . continued) 

sell the specifically devised real estate, we need only address whether the 

sale of personal property was void for lack of advance notice. 
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[¶33.] In addition, SDCL 29A-3-715(b) also required advance notice of the 

public auction of personal property. SDCL 29A-3-715(b) provides in relevant part: 

Not less than fourteen days prior to the closing of any sale of 

real or personal property of the estate for which the fair market 

value is not readily ascertainable, the personal representative 

shall provide written information of the intent to sell to the 

persons who have filed a demand for notice under § 29A-3-204. 

The parties do not dispute that the fair market value of the personal property was 

not readily ascertainable. Moreover, the “closing” of the sale of personal property 

would take place at the time of the public auction after the purchaser bids and 

submits payment for the property. Therefore, James was entitled to written notice 

not less than fourteen days prior to the personal property public auction. This 

comports with the concept that those devisees who are potentially entitled to the 

personal property, even under a residuary clause, should receive notice of a sale of 

property devised to them. This required notice would allow the devisee to either 

obtain the property prior to the sale or bid on the property at the sale. 

[¶34.] However, the failure to give notice does not, under the express 

language of the statutes, void the sale. SDCL 29A-3-204 specifically provides that 

failing to give notice does not vitiate the confirmation of sale. Rather, the remedy 

for failure to give notice was limited to damages. 

The validity of an order which is issued or filing which is 

accepted without compliance with this [notice] requirement shall 

not be affected by the error, but the petitioner receiving the 

order or the person making the filing may be liable for any 

damage caused by the absence of notice. 

Id. Thus, “[i]f the exercise of power concerning the estate is improper, the personal 

representative is liable to interested persons for damage or loss resulting from 
#24127, #24142 

-17- 

breach of fiduciary duty.” SDCL 29A-3-712. See also Green v. Gustafson, 482 

NW2d 842, 846 n3 (ND 1992) (“If a personal representative improperly disposes of 

property of the estate, the remedy of the devisee or heir is directly against the 

personal representative”). James recognized as much at oral argument where he 

sought return of the realty yet conceded it was not possible to recover the “rakes, 

wash-tubs, hoe-handles” and other items which were dispersed by the sale of 

Glenn’s personal property. He conceded in regards to the personal property, his 

remedy was a suit for damages against the personal representative. This is the 

same result as if the personal property had been destroyed by fire through the 

negligence of the personal representative by failing to protect it. Obviously it is 

gone and the only remedy is damages. However, as to the real property and 

buildings, they are still in existence and at the same location. James’ remedy was 

an award of damages against “the petitioner receiving the order or the person 

making the filing.” SDCL 29A-3-204. 

[¶35.] Despite the theoretical problems decried by the dissent, in actual 

application of the UPC statutes, no problems should be encountered, let alone 

create an “impossible situation for practioners” if the statutes are properly followed. 

As noted above, for an heir to have standing to challenge the proposed sale, he or 

she must serve a demand notice upon the personal representative per SDCL 29A-3-

715(b). In such instances as here, where an heir files such a notice, 29A-3-715(b) 

requires notice be given to the heirs prior to any sale. If there are no objections filed 

by the heirs with standing to object or anyone else with such standing, the sale 

continues no differently than it would have under our previous probate code. 
#24127, #24142 

-18- 

Should an heir enter a timely objection, the trial court will determine it and if it is 

without merit the sale then proceeds. If the objection by the heir has merit, the sale 

will not proceed and presumably the property will be distributed to the heirs in 

accordance with the testator’s wishes as expressed in the will.

[¶36.] Here, James argues that he was damaged because he was not given 

advance notice of the sale and was therefore unable to “protect” his property. 

However, he asserts no monetary claim, and the trial court concluded that “James 

Olson did not suffer any losses due to Mr. Wayne Olson’s failure to comply with 

[SDCL] 29A-3-715(b).” Because there is no clear error in the court’s finding that 

James failed to prove damages, we affirm the confirmation of the sale of personal 

property.

[¶37.] 3. Whether the trial court erred in assessing a 

sanction against the personal representative for 

failure to give advance notice of the sales. 

[¶38.] By notice of review, Wayne challenges the trial court’s imposition of a 

sanction for failure to give notice of the public auctions. The court, in its bench 

decision, recognized that a penalty or sanction was not authorized: 

[29A-3-715(b)] doesn’t provide a penalty for violation; and that 

troubles the court, that there should be a penalty for violating 

that statute. And the statute doesn’t prescribe a penalty, but 

otherwise, if there’s no penalty for violating that, you know, the 

court’s efforts to get people to comply with the statutes are 

empty. Consequently, the court feels that it needs to craft some 

kind of a penalty for the failure to comply with that section, and 

the court’s determination is that it would be appropriate at this 

– in this instance to sanction Mr. Wayne Olson . . . $1,000. 

We agree that 29A-3-715(b) does not authorize a sanction or penalty for a 

notice violation. Because the plain language of the statute does not authorize 

a penalty or sanction, we may not add that language to the statute. 
#24127, #24142 

-19- 

While it is fundamental that we must strive to ascertain the real 

intention of the lawmakers, it is equally fundamental that we 

must confine ourselves to the intention as expressed in the 

language used. To violate the rule against supplying omitted 

language would be to add voluntarily unlimited hazard to the 

already inexact and uncertain business of searching for 

legislative intent.

Petition of Famous Brands, Inc., 347 NW2d 882, 885 (SD 1984) (citations omitted). 

Therefore, the trial court erred in awarding sanctions because they were not 

authorized under the statute. We therefore reverse the award of sanctions. 

[¶39.] Wayne, as the personal representative, has moved for attorney’s 

fees in the amount of $5,080.05 under SDCL 15-26A-87.3 and SDCL 29A-3-

720. We deny the motion. 

[¶40.] Reversed and remanded in part and affirmed in part. 

[¶41.] SABERS and MEIERHENRY, Justices, concur. 

[¶42.] KONENKAMP and ZINTER, Justices, dissent. 

ZINTER, Justice (dissenting). 

[¶43.] Glenn’s will, as well as the probate, was governed by the Uniform 

Probate Code, and the UPC provides a statutory power of sale that was unknown to 

our pre-existing statutes and the common law. Had Glenn wanted to limit, restrict, 

or eliminate that power of sale, the UPC requires that Glenn had to provide that 

limitation in his will. SDCL 29A-3-715(a) (Unif. Probate Code § 3-715 (amended 

1997)), 8 ULA 169. Although Glenn failed to do so, today the Court declares that a 

specific devise of real property is “inconsistent” and in “inherent conflict” with the 

statutory power of sale and a specific devisee’s right to receive property in kind. 
#24127, #24142 

-20- 

Supra ¶¶10, 20. From this, the Court holds as a matter of law that a specific devise 

creates an implied limitation, and therefore a personal representative has no 

authority to sell specifically devised property under the statutory power of sale in 

SDCL 29A-3-715(a)(23), even if it is in best interests of the estate. According to the 

Court, the only exception is: when the power to sell is expressed in the will and the 

sale is necessary to pay debts of the estate or “where the heirs agree it is for their 

best interests as well as that of the estate.” Supra ¶28. To support this 

unprecedented result, the Court adopts the remarkable propositions of law that: (1) 

“no such power of sale exists as to real property specifically devised”; (2) a “general 

power authorizing the sale or rental of any property which the testator possessed at 

the time of death applies only to property not specifically devised”; and (3) “property 

specifically devised is not subject to [the] general power of sale granted to 

executors.” Supra ¶18. 

[¶44.] This decision not only fails to follow the Legislature’s directives in the 

UPC, it adds new language by amending SDCL 29A-3-715(a)(23) to abrogate the 

statutory power of sale over specifically devised property unless the power is 

expressed in the will and the sale is necessary to pay estate debts or all of the heirs 

agree to the sale. The Court’s decision also fails to follow our controlling decision in 

In re Kappenmann’s Estate, 82 SD 91, 141 NW2d 780 (1966), and over 100 years of 

settled law establishing that there is no inherent inconsistency between a power of 

sale and a specific devise. Ultimately, the Court’s decision fails to recognize that a 

power of sale (either statutory or expressed) may be exercised with respect to 

specifically devised real and personal property for countless reasons other than to 
#24127, #24142 

-21- 

pay debts or where the heirs agree, as long as the sale benefits the estate. SDCL 

29A-3-715(a)(23). The Court’s contrary pronouncements, based upon unsupported 

intermediate court dicta,7 will profoundly impact practitioners as well as testators 

who devised real property in their wills. The decision will also affect practitioners 

and heirs who desire to conduct personal property sales.8 For these reasons, I 

respectfully dissent. 

 

 (continued . . .) 

7. The strength of the Court’s authorities is typified by its reliance on the New 

York trial court case of In re De Forest’s Estate, 147 Misc 82, 88, 263 NYS 

135, 142 (NYSur 1933). The Court does not acknowledge that it adopts trial 

court dictum that is contrary to all New York appellate cases on this subject. 

See infra ¶66. 

 

8. Both the real and personal property were specifically devised and 

subsequently sold by Wayne’s estate pursuant to SDCL 29A-3-715(a)(23). On 

appeal, James challenges the personal property sale for the same reasons 

that he challenges the real property sale. Although the Court voids the real 

property sale, it fails to explain, under its legal analysis of the power granted 

under the UPC, why the sale of the specifically devised personal property was 

also not void. If the real property sale was void because the personal 

representative had no authority to sell specifically devised real property 

under SDCL 29A-3-715(a)(23), the same result must follow for the specifically 

devised personal property: SDCL 29A-3-715(a)(23) unequivocally applies to 

both real and personal property. Consequently, if the Court’s legal analysis 

were correct, the sale of the specifically devised personal property (sold at 

auction) was also unauthorized and void. 

Although the Court does not address this personal property issue, 

practitioners will not have that option. As a result of this decision, 

practitioners will be required to rethink whether future personal property 

sales may be conducted. Under today’s decision, even if advance notice of a 

personal property sale is given, no power to sell specifically devised personal 

property will exist under the statutory power of sale unless there are specific 

directions in the will and the sale is necessary to pay estate debts or all heirs 

agree to the sale of each item of personal property. 

Although James briefed this issue and contended both sales were void, the 

Court notes that at oral argument he conceded his remedy was damages 

against the personal representative for the personal property sale. See supra
#24127, #24142 

-22- 

Factual Background

[¶45.] This case involves an estate that was informally probated. As the 

personal representative, Wayne determined that the buildings on the estate’s 132 

acre homestead were in such extremely dilapidated condition that they constituted 

a drain on the estate. It is undisputed, but unacknowledged by the Court, that 

Wayne did not sell the entire 132 acres. Rather, he sold only the 6.17 acres on 

which the dilapidated buildings were situated. 

[¶46.] The real and personal property were sold at separate public auctions. 

There is no allegation of impropriety in conducting the sales. Although James was 

not provided with formal notice of the public auctions under SDCL 29A-3-204 and 

715(b),9 he waived his right to require that the estate be formally administered. 

________________________ 

(. . . continued) 

 (continued . . .) 

¶34. James’s concession, however, does not prevent future disgruntled heirs 

from using today’s decision to seek to void personal property sales. 

Additionally, the Court’s failure to explain how the same statute can apply 

differently to real and personal property will be of no comfort to future 

personal representatives who conduct similar, but properly noticed personal 

property sales thereby subjecting themselves to suits for damages. Today’s 

decision certainly creates an impossible situation for practitioners who must 

advise personal representatives whether they may sell personal property 

under wills that, very typically like this one, have a residuary clause leaving 

the bulk of the personal property to named relatives. 

9. The Court suggests that a formal notice of sale is required to be given to all 

heirs in UPC power of sale cases, stating Wayne conducted the sale “without 

the notice to the heirs as required by SDCL 29A-3-715(b) . . . .” Supra ¶3. 

However, that formal notice is only required when the fair market value of 

the property is not readily ascertainable, and then, the notice need only be 

given to those who have filed a demand for notice under SDCL 29A-3-204. 

See SDCL 29A-3-715(b). 

Although Wayne did not provide James with that formal notice under SDCL 

29A-3-204 and 715(b), we have not been advised that any other heir made 
#24127, #24142 

-23- 

Moreover, Wayne was specifically authorized to exercise the power of sale (statutory 

or otherwise) “without notice, hearing, or order of court.” SDCL 29A-3-711. Finally, 

although James did file a demand for notice pertaining to the estate under SDCL 

29A-3-204, that statute expressly provides that a failure to give notice does not void

the sales. Rather, the remedy for failure to give notice under the statute is limited 

to damages. SDCL 29A-3-204. 

[¶47.] In any event, James was provided notice of the filing of the summary 

of the public auctions and notice of the motion to confirm the sales. He appeared 

and objected to the confirmation of both sales. The circuit court confirmed the sales 

finding: (1) the land was a drain on the estate; (2) the sales were conducted in a 

reasonable manner; and (3) the land brought an exceptional price exceeding market 

value. Ultimately, the circuit court found, “[t]he evidence is abundant that the sale 

[of real property] was conducted for a good reason.” These findings are significant 

because they are unchallenged on appeal and SDCL 29A-3-715(a) authorizes such 

sales if the personal representative was acting “reasonably for the benefit of the 

estate.” 

________________________ 

(. . . continued) 

such a demand pertaining to the estate. Moreover, Wayne’s counsel sent a 

letter to all heirs (and James’ attorney) advising them of Wayne’s intent to 

liquidate some of the real and personal property and requesting input. 

Wayne’s attorney sent this letter prior to the public sales. James did not 

object or respond to the request for input on the sales. Additionally, prior to 

the public auction, Wayne and James engaged in a telephone conversation 

regarding the sales. Thus, the circuit court specifically found that James was 

not credible in claiming that he was not informed of the possibility of the 

sales. James does not challenge this finding on appeal, and no other heir has 

appeared objecting to a lack of notice. 
#24127, #24142 

-24- 

The Majority’s View of the Law

[¶48.] The majority does not dispute the circuit court’s findings that both 

sales fell within the “benefit of the estate” qualification for exercising the statutory 

power of sale under SDCL 29A-3-715(a)(23). Instead, the Court focuses on two 

points in its attempt to justify voiding the real property sale.10 The Court first 

 

 (continued . . .) 

10. Interestingly, the Court cites the UPC and Green v. Gustafson, 482 NW2d 

842 (ND 1992), to support its position. Specifically, this Court cites Green

for the proposition that a personal representative’s improper disposal of 

personal property of the estate does not void the sale: the remedy is limited 

to damages. Supra ¶34. The Court, however, fails to acknowledge that 

Green applied that rule to an unauthorized sale of real property. Therefore, if 

we were to follow Green, the sale of real property in this case, even if 

unauthorized, may not be void. James’ remedy may be limited to an action 

against the personal representative. The North Dakota Supreme Court 

explained: 

Section 30.1-18-15(6), N.D.C.C. [Unif. Probate Code § 3-715], 

specifically authorizes the personal representative to “[a]cquire or 

dispose of an asset, including land . . . , for cash or on credit, at public 

or private sale”; and Section 30.1-18-15(23) provides that the personal 

representative may “[s]ell, mortgage, or lease any real or personal 

property of the estate or any interest therein.” 

Section 30.1-18-14, N.D.C.C. [Unif. Probate Code § 3-714], provides 

broad protections to parties dealing with the personal representative: 

“A person who in good faith either assists a personal representative or 

deals with him for value is protected as if the personal representative 

properly exercised his power. The fact that a person knowingly deals 

with a personal representative does not alone require the person to 

inquire into the existence of a power or the propriety of its exercise . . . 

.” 

The intent of these provisions is to adequately protect persons dealing 

in good faith with a personal representative and to avoid the necessity 

of court orders in routine probate administrations. See 1 Wellman, 

Uniform Probate Code Practice Manual 319 (2d ed 1977). As further 

noted by Professor Wellman: 
#24127, #24142 

-25- 

contends that three statutes vest specifically devised property in the specific devisee 

at the time of the testator’s death. See supra ¶¶14-15. Second, although the Court 

acknowledges that SDCL 29A-3-715(a)(23) grants the power of sale, the Court 

creates “an important exception.” See supra ¶17. According to the Court, even 

though there may be no language in a will expressly restricting the statutory power 

of sale, a specific devise of real property is so inherently inconsistent with a 

statutory power of sale that the specific devise impliedly trumps the power of sale 

as a matter of law. See supra ¶¶20, 26. Neither point is correct or supported by 

law. 

[¶49.] With respect to vesting, the Court concludes, “the sale of specifically 

devised property [is] inconsistent with the specific devisees’ right to receive the 

property in kind.” Supra ¶10. The Court relies on SDCL 29A-2-606(a), SDCL 29A3-906(a)(1), SDCL 29A-3-101,11 and our interpretive decision In re Estate of Roehr, 

________________________ 

(. . . continued) 

“Section 3-714 explicitly protects purchasers from the possibility that a 

sale which a PR may have made was unnecessary or at too low a price 

or even against the terms of a will. The purchaser is explicitly excused 

from examining the terms of the will, court records relating to the 

appointment, or other sources that might be relevant to the question of 

whether the sale is proper as between the fiduciary and those entitled 

to the inheritance.” 1 Wellman, Uniform Probate Code Practice 

Manual, supra, at 407. 

Id. at 845 (emphasis added). Today’s Court declines to consider the 

application of South Dakota's version of these UPC provisions. 

11. SDCL 29A-2-606(a) in relevant part provides: 

(a) A specific devisee has a right to the specifically devised property in 

the testator’s estate at death[.] 

 (continued . . .) 
#24127, #24142 

-26- 

2001 SD 85, ¶8, 631 NW2d 600, 602-03 (stating the general rule that title to real 

property vests in a devisee on the death of a testator, subject to probate of the 

estate). The UPC and Roehr do not support the Court’s conclusion. 

[¶50.] First, SDCL 29A-2-606 does not apply because that statute deals with 

the issue of ademption. See Unif. Probate Code §2-606, 8 ULA 427. Because all of 

Glenn’s specifically devised property was still in existence at the time of death, 

construction of Glenn’s will for purposes of ademption is not at issue, and the 

Court’s reliance on the ademption statute is misplaced. Although the Court 

concludes that “the title of chapter 29-2” suggests otherwise, see supra n3, it is well 

established that such titles in codified statutes may not be used to determine a 

statute’s meaning. Argus Leader v. Hagen, 2007 SD 96, ¶27, n5, 739 NW2d 475, 

483 n5. “[T]itles whether designating entire titles, parts, chapters, sections, or 

subdivisions, constitute no part of any statute.” SDCL 2-14-9. 

________________________ 

(. . . continued) 

 SDCL 29A-3-906(a)(1) in relevant part provides: 

(a) Unless a contrary intention is indicated by the will, the 

distributable assets of a decedent’s estate shall be distributed in kind 

to the extent possible through application of the following provisions: 

(1) A specific devisee is entitled to distribution of the thing devised[.] 

SDCL 29A-3-101 provides in 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 . . . subject to 

homestead allowance, exempt property and family allowance, rights of 

creditors, elective share of the surviving spouse, and administration. 

 
#24127, #24142 

-27- 

[¶51.] Second, although SDCL 29A-3-101 does provide that real and personal 

property generally devolves to specific devisees, it also recognizes that the specific 

devisees’ rights are conditional: the property devolves to specific devisees “subject 

to. . . administration.” Id. And, because “[t]he title of the heir or devisee. . .is 

‘subject to administration’; . . . it remains encumbered so long as the estate is in 

administration or is subject to further administration.” 1 Richard V. Wellman, 

Uniform Probate Code Practice Manual, 318 (2d ed 1977). “‘Thus, ‘title’ and ‘power 

to possess and control’ are to be distinguished.’” Feickert v. Frounfelter, 468 NW2d 

131, 132 (ND 1991) (quoting Wellman, supra, at 316). For the same reason, it is 

generally recognized that because the property remains encumbered and subject to 

administration, the power of sale controls over a specific devise. As the North 

Dakota Supreme Court concluded, UPC § 3-101 (SDCL 29A-3-101) does not limit 

the power of sale given to administrators in UPC § 3-715 (SDCL 29A-3-715). Green, 

supra, 482 NW2d at 846 n3. On the contrary, “‘the right to possession and control’ 

of the decedent’s estate is vested in the P[ersonal] R[epresentative] by Section 3-

709.”12 Feickert, 468 NW2d at 132. 

 

12. SDCL 29A-3-709 provides in part: 

 

 Except as otherwise provided by a decedent’s will, every personal 

representative has a right to, and shall take possession or control of, 

the decedent’s property, except that any real property or tangible 

personal property may be left with or surrendered to the person 

presumptively entitled thereto unless or until, in the judgment of the 

personal representative, possession of the property by the personal 

representative will be necessary for purposes of administration. 
#24127, #24142 

-28- 

[¶52.] Finally, rather than supporting the Court’s theory of vesting, SDCL 

29A-3-906(a)(1) recognizes the personal representative’s superior power to possess 

and control specifically devised property. The statute provides that the “assets of a 

decedent’s estate shall be distributed in kind to the extent possible. . . .” (Emphasis 

added.) The official comment to UPC § 3-906 explains that an in-kind distribution 

is only a preference. “This section establishes a preference for distribution in kind. 

It directs a personal representative to make distribution in kind whenever feasible 

and to convert assets to cash only where there is a special reason for doing so.” 

Unif. Probate Code § 3-906, 8 ULA 273 cmt (1997). 

[¶53.] Therefore, none of these statutes override the power of the personal 

representative to administer the estate, including exercising the statutory power to 

sell when there is a special reason; i.e., it is of benefit to the estate.13 This 

conclusion is confirmed by Roehr, where this Court recognized that vesting is 

conditional and subject to the probate of the estate. 2001 SD 85, ¶6, 631 NW2d at 

602. Consequently, today the Court is incorrect in suggesting that specifically 

devised real property vests in specific devisees such that it voids a sale of property 

sold under the power of sale granted in SDCL 29A-3-715(a)(23), even when it is 

reasonably necessary for the estate. 

 

13. The majority believes that the sale of specifically devised property in this 

case “would essentially nullify the provisions of SDCL 29A-2-606(a) and 29A3-906(a)(1).” Supra ¶17. The Court is mistaken because this is not a case 

involving ademption under SDCL 29A-2-606(a), and SDCL 29A-3-906(a)(1) 

specifically contemplates such sales when the trial court finds it is in the best 

interests of the estate. See supra ¶52.
#24127, #24142 

-29- 

[¶54.] With respect to the consistency of a specific devise and a power of sale, 

the Court fails to acknowledge that we have long held that notwithstanding the 

conditional vesting in the specific devisee, it “does not make the power of sale 

repugnant to the specific devise.” Kappenmann, 82 SD at 97, 141 NW2d at 783. 

Instead of following precedent, the Court creates a new and “important exception” 

for specifically devised property. See supra ¶17. Even though this “specific devise 

exception” is not found in Glenn’s will or the UPC, the Court imposes one on SDCL 

29A-3-715(a), reasoning that a specific devise “inherently conflicts with the 

statutory power of sale, for it is an indication of the testator’s intent that the real 

property not be sold.” Supra ¶20. 

[¶55.] The Court’s theories of inconsistency and resulting, implied exception 

are premised upon inapplicable cases. As previously indicated, those cases are cited 

for the propositions that: (1) “no such power [of sale] exists as to real property 

specifically devised”; (2) “a general power authorizing the sale or rental of any 

property which the testator possessed at the time of death applies only to property 

not specifically devised”; and (3) “real property specifically devised is not subject to 

general power of sale granted to executors.” See supra ¶18 (citing Brown v. Bailey, 

2 FiducRep 342, 84 Pa D&C 269, 274, 1953 WL 4538, at *3 (PaComPl 1953); In re

Estate of Radjenovich, 1991 WL 70304, at *1 (MinnCtApp) (unpublished); In re De 

Forest’s Estate, 147 Misc 82, 88, 263 NYS 135, 142 (NYSur 1933); Wilkinson v. 

Chambers, 181 Pa 437, 442, 37 A 569, 569 (Pa 1897); In re Estate of Gamble, 183 

So2d 849, 852 (FlApp 1966); In re Chaney’s Estate, 36 SW2d 709, 711 
#24127, #24142 

-30- 

(TexComm’nApp 1931)). None of these cases support the extreme propositions 

adopted by this Court. 

[¶56.] The Court’s first proposition that “no power of sale exists to real 

property that is specifically devised” comes from a 1952 Pennsylvania trial court 

case. That case is, however, unsupported by any Pennsylvania case law. It is also 

clearly distinguishable. In Bailey, the executor sought to eject a defendant who was 

in possession of real estate by a conveyance from the testator. In analyzing the 

Pennsylvania Fiduciaries Act of 1949, the court expressly noted that factually, there 

was no reason to sell the property. 

One of the purposes of the Fiduciaries Act of 1949 undoubtedly 

is to permit the personal representative to take possession and 

conserve real estate, not only for the benefit of the heirs or 

devisees but for the benefit of the estate if it should be necessary 

to convert it for the purposes of administration and distribution. 

Possession of this real estate by the executrix, however, could 

serve no useful purpose in the administration of the estate under 

the facts existing in this case. 

Bailey, 2 FiducRep 342, 84 Pa D&C 269, 276, 1953 WL 4538, at *5 (PaComPl 1953). 

Therefore, Bailey only involved a factual dispute concerning what was in the benefit 

of the estate. More importantly, by recognizing the personal representative’s power 

in some factual cases, Bailey acknowledged the rule that when there is a “useful 

purpose,” specifically devised property may be sold. Id. 

[¶57.] The Court’s second proposition that “a general power authorizing the 

sale . . . of any property which the testator possessed at the time of death applies 

only to property not specifically devised” is not supported for a number of reasons. 

First, the Court’s cited authority, Radjenovich, is an unpublished Minnesota Court 

of Appeals decision. 1991 WL 70304, at *1 (MinnCtApp 1991) (unpublished). 
#24127, #24142 

-31- 

Under Minnesota law, “[u]npublished opinions of the [Minnesota] Court of Appeals 

are not precedential.” Minn. Stat. § 480A.08. Second, that specific proposition was 

only used as a part of a factual determination that a codicil to a will controlled the 

property in question, and therefore the power of sale in the original will did not 

apply to the devise of any real property. Finally, this cited proposition was based 

upon the 1903 decision in In Re Scott Will, 88 Minn 386, 388, 93 NW 109, 110 

(1903). Scott contains no language even arguably close to the proposition cited by 

this Court. 

[¶58.] This Court finally cites Wilkinson v. Chambers, 181 PA 437, 37 A 569 

(Pa 1897), for the proposition that a will cannot be interpreted so as to allow the 

executor to defeat a specific devise. Wilkinson is a one paragraph Pennsylvania 

case in which the only issue was whether a devise of property was fee simple or a 

life estate. Id. at 442. Therefore, the language adopted by this Court is taken out of 

context and is dictum. 

[¶59.] The Court’s remaining authorities are not discussed or explained.14 

Ultimately, not one of the Court’s cases supports its propositions of inherent 

 

14. See supra ¶18 (citing In re De Forest’s Estate, In re Estate of Gamble, and In 

re Chaney’s Estate). 

De Forest’s Estate does not support the legal proposition that specifically 

devised property is not subject to a power of sale. That 1933 trial court case 

merely concluded that factually, in making a specific devise, that testator 

“did not comprehend” that the devise included the property at issue. 

Therefore, the court did not even consider the relationship between a specific 

devise and a power of sale, let alone conclude that legally, a specific devise is 

inconsistent with a power of sale. 147 Misc at 88, 263 NYS at 142. Such a 

conclusion would have been impossible because all New York authority on 

this issue concludes that the two are not inconsistent. See infra ¶¶64, 66. 

 (continued . . .) 
#24127, #24142 

-32- 

inconsistency such that a personal representative’s power of sale only relates to 

property not specifically devised. On the contrary, as is explained below, the law 

has been well settled both before and after the UPC that a power of sale and a 

specific devise are not inherently inconsistent or repugnant. The former may be 

exercised over the latter when a power of sale exists and it is in the best interests of 

the estate. 

________________________ 

(. . . continued) 

 

In re Estate of Gamble, 183 So2d 849 (FlDistCtApp 1966), is clearly 

distinguishable. In Gamble, the issue was only whether a sale was also 

necessary to pay the cost of administration or to distribute the estate. The 

decision was dependent upon the distinction between a general and limited 

power of sale. Therefore, the court noted the limited nature of its inquiry: 

The question with which we are confronted involves a 

determination of whether the power of sale granted [in] the 

executor in testator’s will is a general power over which the 

probate court has no control, or whether it is a limited power 

under which the authority of the executor is restricted . . . .” 

Id. at 852. Because Gamble ultimately determined that the power was 

limited, the court only concluded that the power could not be exercised 

arbitrarily or capriciously; i.e. that the executor had no power “to liquidate 

any or all property of the estate under circumstances which serve no purpose 

other than to require the inheritance of the [specific] legatees to be 

distributed to them in cash rather than kind.” Id. at 853. This holding is in 

complete harmony with SDCL 29A-3-715(a)(23), which similarly requires 

that the sale not be arbitrary: it must reasonably benefit the estate. 

Consequently, Gamble does not stand for the proposition that specifically 

devised property may not be sold. It stands for the proposition that 

specifically devised property - even that property subject to a limited power of 

sale - may be sold as long as there is a reason and it is approved by the court. 

 The Court finally refers to In re Chaney’s Estate, 120 Tex 185, 36 SW2d 709 

(TexComm’nApp 1931), for the proposition that specifically devised property 

is not subject to a general power of sale. In Chaney, however, the power of 

sale was not even at issue. 
#24127, #24142 

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Kappenmann

[¶60.] This Court has already concluded in In re Kappenmann’s Estate that a 

power of sale is not repugnant to a specific devise. 82 SD 91, 97-98, 141 NW2d 780, 

783 (1966) (citing 5 Bowe, William J. and Parker, Douglas H. Page on the Law of 

Wills, § 45.10).15 Our citation to Page on the Law of Wills specifically explains, 

“[w]here an express power of sale is given, but the purpose for which it is to be used 

is not specified, it is held to be a power of sale in order to pay the proceeds to the 

devisees in lieu of the devise, and, therefore, such a power of sale is not repugnant 

to the devise of the property in fee.” Id. It should be further emphasized that the 

exact question in Kappenmann is the question before the Court today: whether “an 

executor may sell specifically devised real property, under a power of sale in a will 

[in our case, the analogous power in statute], where such sale is not necessary to 

pay debts and cost of administration, and where there is no directive in the will to 

sell such devised property.’” 82 SD at 93, 141 NW2d at 781 (emphasis added). 

Kappenmann resolved this question holding the property could be sold because the 

vesting of the property was only conditional, and the specific devise did not defeat 

the general power of sale. Id. at 97-98, 141 NW2d at 783. 

[¶61.] This Court attempts to distinguish Kappenmann and the cases 

hereinafter cited in this dissent noting that the will in Kappenmann contained a 

power of sale and Glenn’s will did not. Wayne, however, was granted an analogous 

power of sale by statute, and this Court offers no explanation how the statutory 

 

15. Kappenmann has been cited as post-UPC authority. See In re Estate of 

Roehr, 2001 SD 85, ¶7, 631 NW2d at 602. 
#24127, #24142 

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power to sell without notice is different than the power of sale considered in 

Kappenmann. A careful reading of Kappenmann establishes that the statutory 

power of sale is not materially different than the power granted by the will in

Kappenmann. The statutory power and the power in the will are analogous 

because: (1) Kappenmann construed a will “where there [was] no directive in the 

will to sell such devised property,’” 82 SD at 93, 141 NW2d at 781 (emphasis added) 

(citations omitted); and (2) there is no material difference in the UPC power of sale 

statute and the pre-UPC power of sale statutes construed in Kappenmann. 

Compare SDCL 29A-3-715 and 29A-3-711 (granting exercise of statutory power of 

sale without notice, hearing or order of the court) with SDC 1960 Supp §§ 35.1501 

(SDCL 30-22-6) and 35.1527 (SDCL 30-22-1) (both repealed, 1995) (governing power 

of sale in a will and power of sale when not provided in the will). Because the wills 

and statutes construed in Kappenmann and this case are silent concerning the sale 

of specifically devised property, pre-UPC case law is apposite.16 Moreover, the 

majority simply fails to acknowledge the only difference in the powers of sale is that 

before the UPC was adopted, personal representatives did not possess a power of 

sale unless it was included in the will. After the UPC, that power is granted unless 

the will provides otherwise. Compare SDCL 30-22-1 (repealed 1995) (authorizing 

power of sale when given in the will) with SDCL 29A-3-715(a)(23) (authorizing 

power of sale when not given in the will). 

 

16. It is ironic that the Court purports to distinguish this dissent’s cases because 

they are mostly “pre-UPC and the wills in those cases expressly granted the 

personal representative a power of sale,” supra ¶21. All of the Court’s cases 

are pre-UPC. 
#24127, #24142 

-35- 

[¶62.] The Court, however, suggests that other courts recognize “a distinction 

between a testator granting the power of sale as opposed to a statute,” and in such 

cases “the specific devise must be distributed in kind.” Supra ¶23 (citing In re

Estate of Polly, 511 So2d at 756 and In re Estate of Gamble, 183 So2d 849). Neither 

case supports the Court’s view. Polly is inapplicable because: no statutory power 

was even considered; although the will in Polly contained a power of sale, it did not 

concern the property at issue; and Polly construed a Florida statute that, like our 

pre-UPC law, only allowed the exercise of a power of sale when it was provided by a 

will. Thus, the issues were not the same, Gamble is distinguishable, and it 

supports this dissent. See supra n14. 

[¶63.] The Court further suggests that making a specific devise subject to a 

power of sale may threaten intended specific distributions. The Court goes so far as 

to propose a red herring that a personal representative “could sell a family heirloom 

[or land that had been in the family for generations] that was specifically devised . . 

. as long as he or she was acting reasonably for the benefit of the estate.” Supra

¶26. This suggestion simply fails to give effect to the language of SDCL 29A-3-715. 

Although the Court pays lip service to the statute’s limiting language that a 

personal representative would have to prove such sales of family heirlooms or land 

were necessary for the estate, such a finding could not be made. Obviously, under 

the facts in the Court’s examples, it would be unnecessary to sell such property to 

administer the estate. 

[¶64.] Testators often give powers of sale that affect specifically devised 

property without making specific reference to the property. A New York case 
#24127, #24142 

-36- 

exhaustively explained why such powers are given and why the benefit to the estate 

protection is sufficient, even when the devise is for a spouse and children. 

Had the intention of the testator been to restrict the power of 

sale [as is permitted under SDCL 29A-3-715] to the necessities 

of the trust [for his wife and children], he would have 

undoubtedly so expressed himself, or would at least have given 

the power in connection with the trust, and not left it to a later 

and entirely disconnected provision of his will wherein he gave 

his personal representatives the power to sell and dispose of his 

real estate for the ‘best interests’ of his ‘estate.’ 

Good reasons suggest themselves why the testator might well 

have wished to confer upon his personal representatives a 

general power of sale for the purpose of a distribution of his 

estate among the residuary legatees and devisees. On the death 

of testator’s wife the will gave, devised and bequeathed all of the 

trust estate unto the children of the testator then living and to 

the issue of any of them who might then be deceased in equal 

shares per stirpes and not per capita. In case any such taker 

should be an infant, the acquiring of the title of such would 

involve a complicated and expensive court proceeding, which the 

testator might well have wished to avoid. He might also have 

foreseen discord among the residuary owners and the necessity 

of resorting to an expensive action in partition with attendant 

delay in order to obtain a sale of the real property and a division 

of the proceeds among those entitled thereto. Indeed, it appears 

that between the date of the making of the contract of sale and 

the time therein fixed for the passing of title, one of the 

testator’s children did actually commence an action in the 

Supreme Court for a partition of the real property of which 

decedent died seized, including the contracted premises. Thus 

the possible fears of the testator that all would not be 

harmonious among those who would eventually succeed to his 

real property seem justified by succeeding events. By the power 

of sale in the will the testator provided a way for the disposal of 

his estate by his trusted representatives at a nominal expense 

and thereby sought to save long delay and considerable expense 

which might otherwise result. Such are the reasons which 

usually give birth to powers of sale in wills. Certain it is that the 

testator in no way confined the exercise of the power of sale to 

the execution of the trust, but on the contrary made the same in 

the most general way for the benefit of his whole estate. 

Hutkoff v. Winmar Realty Co., 211 AD 726, 728-729 (NYAppDiv 1925). 
#24127, #24142 

-37- 

 

[¶65.] Missouri provides another reason why the power of sale may prevail. 

In Estate of Basler v. Delassus, 690 SW2d 791 (Mo 1985), the specific devisees 

objected to the sale of the property under a power of sale. The Missouri Supreme 

Court reversed a lower court’s holding that the real property in issue “passed from 

the testatrix to the four devisees and that the personal representative had no 

authority to convey it elsewhere[.]” Basler, 690 SW2d at 793. In rejecting that 

proposition, the Missouri Supreme Court explained that joint devisees do not have a 

right to specific enjoyment since any one of them could demand partition. Id. Thus, 

good reasons exist why powers of sale may be exercised over specifically devised 

property. Such powers are given to avoid problems relating to discord among heirs, 

to ease the disposition of property when minors are involved, to thwart expense and 

complications of partition proceedings, to avoid delay, and to benefit the entire 

estate.

No “Inconsistency” or “Inherent Conflict” Exists 

[¶66.] For the foregoing reasons, and notwithstanding this Court’s belief that 

confirming Glenn’s estate sale would “reverse” a “century old doctrine,” see supra

¶12, the opposite is true. For more than a century, the law has recognized no 

repugnancy between a devise in fee and a power of sale (even when the specific 

devise was intended for the surviving spouse and children). 

 [T]here can be no doubt of the validity of the power of sale. 

There is no repugnancy between a devise in fee and a subsequent 

power of sale given to the executor for the benefit of the devisees. 

This is a common incident of testamentary dispositions. The 

title to the lands vested in the widow and children of [decedent] 

under the devise, and was a fee, subject to the power of sale 

given to the executor. In case of a sale under the power the title 
#24127, #24142 

-38- 

of the devisees in the land would be divested and an interest in 

the proceeds substituted. 

Mellen v. Mellen, 94 Sickels 210, 219-20, 34 NE 925, 928 (NY 1893) (emphasis 

added) (citing Crittenden v. Fairchild, 41 NY 289 (1869)). The cases have 

consistently held that specific devisees take subject to a representative’s power of 

sale. 

Undoubtedly, under the terms of the will of the testator, his real 

property, upon the termination of the trust for the benefit of his 

widow, vested in his children and the issue of any of them then 

deceased, per stirpes. But such vesting of title was subject to the 

exercise by plaintiffs of the power of sale contained in said will. 

Hutkoff, 211 AD at 728-729. See also Cusack v. Tweedy, 126 NY 81, 26 NE 1033 

(NYAppDiv 1891); Hetzell v. Easterly, 66 Barb 443 (NY 1867); In re McLaughlin’s 

Estate, 193 Misc 192, 82 NYS2d 784 (NYSur 1948); Weinstein v. Hunter, 276 AD 

471, 476, 96 NYS2d 1 (NYAppDiv 1950). 

[¶67.] Similarly, for almost 100 years, Kentucky has recognized that a power 

of sale is not inconsistent with a specific devise. 

[A] power given by will to an executor to sell all or any portion of 

the residuary estate is not affected by the devise of such 

residuary share; for the devise is to be construed as subject to 

the power of sale. Nor is a power of sale in executors necessarily 

inconsistent with a specific devise in fee. 

Stofer v. Stiltz, 179 Ky 399, 200 SW 631, 632 (KyCtApp 1918) (quoting 31 

Cyclopedia of Law and Procedure 1049 (1909)). Stofer explained: 

[When real property] is given in clear language sufficient to 

convey an absolute fee . . . [and] [t]he power given the executor 

to sell and convey is not in vague, general, or indefinite 

expressions . . . [t]he only construction necessary is to reconcile, 

if possible, any inconsistency in the two positive and 

unambiguous sections; and this can be done upon authority by 
#24127, #24142 

-39- 

holding that . . . the devisees took the [real property] in fee, 

subject to the power of sale given to the executor . . . . 

Id. See also Davis v. Scavone, 149 Me 189, 192, 100 A2d 425, 426-27 (1953) 

(concluding that devises are subject to power of sale). 

[¶68.] Although Glenn’s will was governed by the UPC, the UPC did not 

change this doctrine. The UPC only makes the power of sale statutory. Therefore, 

under the UPC, testators are now required to draft their wills to explicitly limit, 

restrict, or eliminate this power of sale if that is their intent. SDCL 29A-3-715 

(providing the power of sale “except as restricted or otherwise provided by the 

will[.]”). Glenn’s will did not “restrict” or “otherwise provide” that Wayne could not 

exercise the power of sale with respect to the real or personal property. Therefore, 

Wayne was authorized to sell specifically devised property as long as it was 

reasonably for the benefit of the estate. Without any evidentiary support (because 

there was no testimony of the testator’s intent in this case), this Court disregards 

SDCL 29A-3-715 by declaring that by a naked specific devise, Glenn “stated his 

testamentary intent to restrict [this] sale.” Supra ¶25. As was demonstrated above, 

no case supports the Court’s declaration. 

[¶69.] Although the Court also suggests that this family had a “historical and 

sentimental attachment to this land” and Glenn wrote his will “[w]anting to keep 

this farm in the family,” see supra, ¶¶2, 27, neither assertion is supported by the 

record. At the hearing regarding the confirmation of the sales, no testimony or 

evidence was offered even suggesting that Glenn wanted to keep the farm in the 

family. Nor was there any evidence of any “sentimental attachment” to the land. 

The evidence suggests the opposite. As previously indicated, Wayne sent a letter to 
#24127, #24142 

-40- 

all of the heirs prior to the auction in August of 2003, indicating his intent to sell 

the land and requesting any thoughts or input the heirs may have had regarding 

his intent to sell. At the hearing, it was unrefuted that only one of the seven heirs – 

James – even responded. Further, it was also unrefuted that five of the seven heirs

approved of the sale.17 This Court’s appellate finding of this family’s “sentimental 

attachment” is clearly unsupported. 

[¶70.] In the case before the Court today, one of the devisees apparently did 

not agree that the dilapidated buildings were a drain on the estate and should be 

sold. The personal representative, exercising his statutory power of sale -- which is 

materially identical to the common-law power of sale -- presented that dispute to 

the circuit court. The circuit court found that it was in the best interest of the 

estate and therefore concluded that there was authority to sell under SDCL 29A-3-

715. Absent a challenge to the circuit court’s factual best interest determination, all 

pre-and post-UPC decisions specifically examining similar powers of sale agree with 

the circuit court’s conclusion. 

[¶71.] Although the caselaw, our own precedent, and the UPC require this 

conclusion, this Court finally contends that the statutory power of sale is only 

exercisable when the heirs agree or “it [is] necessary to satisfy the debts of the 

estate.” Supra ¶28. In doing so, the Court overlooks our decision in Kappenmann

and the broader language in SDCL 29A-3-715(a) that do not incorporate such 

 

17. Aside from James Olson, the only other heir who did not approve of the sale 

was Gary Eugene Olson. At the hearing, however, Gary indicated that he 

was not interested in buying the property. 
#24127, #24142 

-41- 

restrictions. They only require that the sale reasonably benefit the estate. 

California courts, construing a similar provision, confirm this Court’s error. 

[¶72.] California Probate Code § 754 is similar to SDCL 29A-3-715. Section 

754 provides, “‘[W]hen it is for the advantage, benefit, and best interest of the estate 

and those interested therein that any property of the estate be sold, the executor or 

administrator may sell the same[.]’” Estate of Barthelmess, 198 CalApp3d 728, 734-

35, 243 CalRptr 832 (1988) (opinion modified on denial of rehearing). In 

interpreting that statute, California courts have explained that the “necessity to sell 

the residence in order to pay debts . . . simply is not a relevant consideration in 

determining the propriety of the sale in this case. The sale may be upheld on the 

basis of the finding it was in the best interest of the estate[.]” Id. at 735. See also

In re Da Roza’s Estate, 82 CalApp2d 550, 553, 186 P2d 725, 727 (1947) (citing § 754 

and concluding: “The administratrix was authorized to sell the lots . . . for the 

‘advantage benefit and best interests of said estate,’ regardless of whether there 

were funds in the estate sufficient with which to pay all debts and expenses of 

administration.”). These courts recognize, as we did in Kappenmann, that a power 

of sale may be exercised over specifically devised property for reasons other than 

the payment of debts and administration. And, there is certainly no language in 

SDCL 29A-3-715 (a)(23) or common law supporting today’s decision requiring

unanimous consent to sell each piece of specifically devised real and personal 

property. 

[¶73.] Until today, South Dakota followed the UPC and the caselaw 

underlying the UPC and powers of sale. The effect of today’s decision, however, is 
#24127, #24142 

-42- 

 

that even if advance notice of sale is given, there is no power to sell specifically 

devised real or personal property under SDCL 29A-3-715(a)(23) unless there are 

specific directions to do so in the will and the sale is necessary to pay estate debts or 

the heirs agree it is for their best interests as well as that of the estate. Otherwise, 

according to the Court, sales of specifically devised property are void.18 This was 

not the law before the adoption of the UPC, and it is not the law under the UPC. I 

therefore dissent, only joining the Court’s opinion on Issue 3. 

[¶74.] KONENKAMP, Justice, joins this dissent. 

18. Interestingly, the 6.17 acres at issue were conveyed to the buyer by the 

personal representative’s deed over two years ago. This Court unequivocally 

voids that sale, but remands to “allow the third-party purchaser the 

opportunity to intervene and protect his or her interest.” Supra ¶29. This 

Court owes the parties and the circuit court some explanation and guidance 

on how they may accomplish this task on remand in light of SDCL 29A-3-712 

and 714, the latter providing: 

A person who in good faith either assists a personal representative or 

deals with a personal representative for value is protected as if the 

personal representative was properly authorized to act. The fact that a 

person deals with a personal representative with knowledge of the 

representative capacity does not alone require the person to inquire 

into the existence of a power or the propriety of its exercise. Except for 

restrictions on powers of supervised personal representatives which 

are endorsed on letters as provided in § 29A-3-504, no provision in any 

will or order of court purporting to limit the power of a personal 

representative is effective except as to persons with actual knowledge 

thereof. A person is not bound to see to the proper application of estate 

assets paid or delivered to a personal representative. The protection 

here expressed extends to instances in which some procedural 

irregularity or jurisdictional defect occurred in proceedings leading to 

the issuance of letters, including a case in which an alleged decedent is 

found to be alive.