#29843-a-SRJ

2022 S.D. 73

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

ESTATE OF BONNIE JEAN HUBERT a/k/a

BONNIE JEAN PEASE, Deceased.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE FIFTH JUDICIAL CIRCUIT

BROWN COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE GREGORY C. MAGERA

Judge

* * * *

BRIAN L. UTZMAN of

Smoot & Utzman, P.C.

Rapid City, South Dakota Attorneys for appellant Douglas 

D. Hubert.

WILLIAM D. GERDES of

Gerdes & McNeary, P.C.

Aberdeen, South Dakota Attorneys for appellees Lynn 

Schock and Lisa Schock.

* * * *

CONSIDERED ON BRIEFS

AUGUST 30, 2022

OPINION FILED 12/07/22
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JENSEN, Chief Justice

[¶1.] Bonnie J. Pease, also known as Bonnie J. Hubert, died leaving a 

handwritten holographic will (Will). This Court held in Estate of Hubert, 2016 S.D. 

74, 887 N.W.2d 80 (Hubert I) that the Will appointed Lynn and Lisa Schock 

(Schocks) as the personal representatives and gave them Bonnie’s entire estate, 

subject to three conditions. On remand, the circuit court declared that the Schocks 

satisfied the conditions of the Will and approved the Schocks’ final proposed 

distribution of Bonnie’s estate (Estate).1 Bonnie’s brother, Douglas Hubert, 

appeals, arguing that the circuit court erred in finding that the Schocks had fulfilled 

one of the conditions of the Will. We affirm.

Facts and Procedural History

[¶2.] Bonnie died from health conditions while incarcerated at the South 

Dakota Women’s Penitentiary (SDWP) on August 4, 2013. She executed the Will 

approximately seven months before her death. The Will disinherited all of Bonnie’s 

family members except for Douglas. The gifting clause of the Will provided:

Hence, I give all my belongings to Lisa and Lynn Schock 

contingent on them giving a share to my brother Douglas Dean 

Hubert and for Cocky’s new keeper mom search, and making 

some arrangements for litigation start monies to correct 

injustices at SDWP in Pierre.

It is the final phrase of the gifting clause, “making some arrangements for litigation 

start monies to correct injustices at SDWP in Pierre” (Litigation Condition), that is 

at issue in this appeal.

1. The Estate consisted of 80 acres of land valued at approximately $140,000, a 

bank account, several vehicles, and Bonnie’s pet bird, Cocky.
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[¶3.] With respect to the Litigation Condition, the Will further explained 

that “I also feel a need to help prevent the [egregious] wrongs done by the State of 

South Dakota, et. al. I hope to provide some recoverable monies to the ACLU of 

South Dakota to help with that endeavor and/or to provide funding so my estate/my 

brother Douglas Dean Hubert can recover what he would have obtained but for my 

wrongful death and the many other wrongful acts of SD State et. al.”2

[¶4.] The Schocks were long-time friends of Bonnie. Bonnie lived with the 

Schocks when she did not have a home. Additionally, while Bonnie was 

incarcerated, the Schocks handled Bonnie’s financial matters and cared for her bird, 

Cocky. The Schocks continued to care for Cocky after Bonnie’s death.

[¶5.] In the proceedings leading up to the appeal in Hubert I, the circuit 

court determined that the Will did not give the Schocks anything, and instead only 

appointed the Schocks as co-personal representatives. The circuit court found that 

the Will directed the Schocks to provide monies for Cocky’s care and to fund 

litigation against the State, and once they completed those two conditions, they 

were required to distribute the entire residual Estate to Douglas.

[¶6.] The Schocks appealed the circuit court’s order, and this Court reversed 

and remanded the case back to the circuit court. Hubert I, 2016 S.D. 74, ¶ 1, 887 

N.W.2d at 81. We held in Hubert I that the gifting language of the Will was 

unambiguous and “unequivocally ‘give[s] all’ of [Bonnie’s] ‘belongings’ to Schocks 

2. In 2015, Lisa testified that Bonnie believed that the State provided her with 

poor medical treatment during her incarceration. Lisa indicated there was 

no evidence that Bonnie’s death was a result of any medical maltreatment or 

wrongful conduct by the State and that Bonnie did not further substantiate 

the basis for her alleged claim against the SDWP.
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‘contingent on’ them ‘giving a share’ to Douglas, providing for ‘Cocky’s new keeper 

mom search, and making some arrangements for litigation start monies.’” Id. ¶ 8, 

887 N.W.2d at 83.

[¶7.] At the initial hearing on remand, the parties agreed that the Schocks 

could dispose of the personal property and pay the expenses of administration of the 

Estate. The Schocks also informed the court that they had cared for Cocky since 

Bonnie’s death and intended to continue doing so.

[¶8.] However, the parties were not in agreement concerning the amount of 

the bequest to Douglas or the Litigation Condition. The Schocks proposed that 

Douglas should receive one fourth of the Estate, while Douglas asserted that he 

should receive at least half of the Estate. Douglas argued that the Litigation 

Condition was not capable of execution because Bonnie did not indicate the nature 

of the cause of action and the statute of limitations for any alleged claim had 

already expired. He objected to the Estate spending any money to pursue litigation 

against the State because he believed that it would be a waste of the Estate’s assets 

and did not “think that [was] worthwhile to spend [E]state resources on.”3 The 

Schocks, however, suggested that the American Civil Liberties Union (ACLU) 

should be contacted about the funding of potential litigation described in the Will.

[¶9.] The court authorized the Schocks “to inquire further to see whether 

the ACLU is willing to pursue [a lawsuit,] . . . and make reasonable efforts to 

accomplish the goals of Ms. Pease.” The court explained that the Schocks were not 

to pursue futile causes of actions, but rather, if the ACLU determined that there 

3. Douglas hired different counsel after this hearing.
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were no viable causes of action, the Estate should not waste any resources on 

pursuing litigation. The court further instructed that if the Schocks believed that 

Bonnie intended “to pursue a more broad recompense . . . for the conditions at 

[SDWP]” and they wanted to pursue litigation beyond contacting the ACLU, they 

must present a reasonable plan for doing so.

[¶10.] In January 2019, Douglas filed a proposed distribution that provided 

for the entire Estate to be distributed to him. The Schocks objected, and the court 

held a hearing to address Douglas’s proposed distribution. Douglas argued that the 

entire Estate should be distributed to him because the Schocks failed to take any 

steps to fulfill the Litigation Condition imposed by the Will. However, Douglas did 

not suggest another plan to fulfill the Litigation Condition. The court denied 

Douglas’s proposed distribution and directed the Schocks to present a plan to fulfill 

the Litigation Condition within two months.

[¶11.] The Schocks filed a notice of proposed action and distribution of assets 

on June 16, 2020. The Schocks proposed selling the real property, paying Douglas 

one-fourth of the Estate or $50,000, whichever was less, and paying the remaining 

balance to the Schocks. The Schocks further proposed paying nothing to the ACLU 

“because the entity [did] not intend to pursue legal action[.]” They also agreed to 

continue to care for Cocky. Douglas objected, arguing that the Schocks failed to 

propose a plan for litigation against the SDWP as required by the Will and that the 

Schocks failed to give him his share of the Estate, which he asserted was the 

remaining balance of the Estate. Douglas also requested that the court remove the 
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Schocks as co-personal representatives for failing to timely satisfy the conditions of 

the Will since a 2016 circuit court order that predated Hubert I.

[¶12.] At the hearing on the Schocks’ proposed distribution, the Schocks 

claimed that they had contacted the ACLU to inquire about litigation against the 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SDWP. Douglas did not respond to the ACLU affidavit.
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[¶14.] The court subsequently entered an order providing that Douglas could 

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

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

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

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

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

Schocks to continue to care for Cocky.4

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

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

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

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

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

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

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

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

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

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

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

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

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

alternative plan to satisfy the Litigation Condition.

4. Douglas attempted to appeal this order, but this Court dismissed the appeal 

for failing to timely serve notice of the appeal on all required parties under 

SDCL 15-26A-4(3).
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[¶17.] Douglas appeals, arguing that the circuit court erred in finding that 

the Schocks fulfilled the Litigation Condition.

Analysis

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

determining that the Litigation Condition was satisfied because the Schocks 

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

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

should have contacted other lawyers or public interest groups and used Estate 
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funds to solicit efforts to commence litigation against the SDWP as expressed in 

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

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

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

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

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

disclaimer of the bequest under SDCL 29A-2-801.5

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

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

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

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

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

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

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

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

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

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

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

5. SDCL 29A-2-801 provides that “[a]ny person who may be entitled to receive 

any property or beneficial interest . . . under any will . . . shall have the right 

to disclaim irrevocably the whole or any part of such property or beneficial 

interest.” See also 38 Am. Jur. 2d Gifts § 28 (2022) (“[A] gift ordinarily can be 

completed only if it is accepted by the donee; the law forces no one to accept a 

gift.”). Bonnie expressed some intention to use Estate funds to encourage the 

ACLU to pursue litigation against the SDWP, but the Litigation Condition in 

the gifting clause did not actually gift any monies to the ACLU. Therefore, 

there was no gift for the ACLU to disclaim under the Will.
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arrangements” and the lack of specificity in the gifting clause demonstrate that the 

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

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

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

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

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

how to apply the Litigation Condition is further demonstrated by precatory 

language in the Will, which stated “I also feel a need to help prevent the [egregious] 

wrongs done by the State of South Dakota, et. al. I hope to provide some 

recoverable monies to the ACLU of South Dakota to help with that endeavor and/or 

to provide funding so my estate/my brother Douglas Dean Hubert can recover what 

he would have obtained but for my wrongful death and the many other wrongful 

acts of SD State et. al.”

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

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

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

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

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

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

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

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

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

provide some monies to the ACLU to help with that endeavor” is precatory and 
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lacks any mandatory directive in terms of a specific action the Schocks were 

required to take in fulfilling the Litigation Condition.

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

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

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

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

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

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

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

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

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

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

Litigation Condition of the Will with their efforts.

[¶24.] We affirm.

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

Court Judge, concur.

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

deemed himself disqualified and did not participate.