#24041-dis-PER CURIAM 

2006 SD 107

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

IN THE MATTER OF 

THE ESTATE OF ROBERT F. BARTHOLOW, 

Deceased. 

* * * * 

APPEAL FROM THE CIRCUIT COURT 

OF THE SIXTH JUDICIAL CIRCUIT 

LYMAN COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE MAX A. GORS 

Judge 

* * * * 

ROBERT R. SCHAUB and 

HERB C. SUNDALL of Attorneys for plaintiff 

Larson, Sundall, Larson, Schaub & Fox and appellant, Estate of 

Chamberlain, South Dakota Robert F. Bartholow. 

* * * * 

 CONSIDERED ON BRIEF 

 ON OCTOBER 2, 2006 

 OPINION FILED 11/29/06 
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PER CURIAM 

[¶1.] The Estate of Bartholow (Estate) appeals the circuit court order 

interpreting and reforming the trust provisions contained in Robert F. Bartholow's 

will. We dismiss the appeal. 

FACTS AND PROCEDURE 

[¶2.] Bartholow passed away on February 1, 2005. On February 22, 2005, a 

petition to probate his will was filed. An order admitting the will to probate and 

appointing Betty Isburg as personal representative was entered on March 29, 2005. 

 On December 14, 2005, a "petition for nunc pro tunc order interpreting and 

reforming the trust provisions of Robert F. Bartholow's will" was filed with the 

circuit court. That petition sought reformations to the will to obtain favorable 

charitable tax treatment. The trust provision of the will provided for the 

educational benefit of children seeking secondary education in South Dakota. The 

requested revisions would purportedly bring the trust into compliance with Internal 

Revenue provisions to create an exempt organization. A notice of hearing on this 

request was sent to the interested parties, the United States Attorney, Attorney 

General and Internal Revenue Service. No objection was noted by any of these 

parties. 

[¶3.] The circuit court entered an order nunc pro tunc interpreting and 

reforming the trust provisions effective January 6, 1964. That order directed that 

the trust be interpreted as including the Internal Revenue provisions requested to 

achieve favorable tax status. The order conformed precisely to the requested 

provisions sought by Estate. Notice of entry of that order was served on the 
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previously mentioned parties. No objection or notice of appearance was entered. 

Nevertheless, Estate filed a notice of appeal to this Court from the order entered 

below. In its brief, the issue stated for review is as follows: 

Should this Court summarily affirm the trial court's 

decision thereby giving it finality and assuring that the 

estate has an estate tax charitable deduction and that the 

trust created by decedent's will be exempt from federal 

income taxes? 

The Attorney General's office and the Department of Justice Tax Division 

submitted letters indicating they will not be filing a response or taking a position in 

the appeal. Because this Court has no jurisdiction to consider this appeal as there 

is no aggrieved party, we dismiss for lack of appellate jurisdiction. 

DISCUSSION 

[¶4.] This Court is "required to take notice of jurisdictional questions, 

whether presented by the parties or not." Wold Family Farms, Inc. v. Heartland 

Organic Foods, Inc., 2003 SD 45, ¶12, 661 NW2d 719, 723. In this unusual 

situation, Estate is appealing from an entirely favorable order entered by the circuit 

court. In fact, the circuit court entered Estate's requested relief verbatim. There 

are no other parties involved in this appeal and no one has objected to any action 

taken by the circuit court.1 

1. Estate contends that a judgment is required by this Court to bind the 

Internal Revenue Service to the circuit court's ruling. In support of that 

position it generally cites Commissioner v. Estate of Bosch, 387 US 456, 87 

SCt 1776, 18 LEd2d 886 (1967). The discussion in Bosch relates to the degree 

of deference federal courts should give state courts in interpreting their own 

law. Nothing in that decision can be construed to suggest this Court should 

ignore general rules of appellate procedure to provide a rubber stamp 

affirmance for the benefit of a victorious party. 
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[¶5.] "As a general rule, an appellant must not only have an interest in the 

subject matter in controversy, but must also be prejudiced or aggrieved by the 

decision from which he appeals." Carlson v. West River Oil Co., 75 SD 333, 335, 64 

NW2d 294, 295 (1954). "The right of appeal is limited to aggrieved parties and 

when a judgment is rendered in a party's favor, that person cannot be an aggrieved 

party unless the adjudication is, in some way, prejudicial to that party." Quinn v. 

Mouw-Quinn, 1996 SD 103, ¶20, 552 NW2d 843, 847. While an exception to this 

rule has been recognized in certain cases where the prevailing party may 

nevertheless be prejudiced by the adjudication, that exception is inapplicable here. 

See Jones v. Dappen, 359 NW2d 894, 895 (SD 1984); Miller v. Scholten, 273 NW2d 

757, 760-62 (SD 1979)(tracing the history of the aggrieved party requirement in 

South Dakota jurisprudence). The adjudication entered in this matter can not be 

characterized as prejudicial to Estate. In the absence of an aggrieved party it is 

appropriate to dismiss the attempted appeal. See e.g., Jones, 359 NW2d at 895; 

Bottum v. Herr, 83 SD 542, 549, 162 NW2d 880, 884 (1968); Carlson, 75 SD at 335, 

64 NW2d at 295 (dismissing attempted appeals from non-aggrieved parties). 

[¶6.] The facts of this case are closely analogous to those in Massengill v. 

Massengill, 255 SW2d 1018 (TennCtApp 1953). In that case, appellant conceded 

that the decree entered below was in her favor and no assignments of error were 

made concerning the trial court's ruling interpreting a trust agreement. Id. at 

1018. Rather, the appellant maintained that "it is necessary at this time, under the 

Federal law, to procure an appellate determination of the interpretation of this 

Trust Agreement in aid of the administration of this Trust, and in order that the 

rights of the beneficiaries thereunder shall not be prejudiced." Id. at 1019. In 
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denying the attempted appeal, the court noted "it is not within the province of the 

appellate courts to decide abstract, hypothetical, or moot questions, disconnected 

from the granting of actual relief, however important and however simple they may 

be." Id. 

[¶7.] In denying the petition for rehearing in that same opinion, the court 

stated "[o]nly a party dissatisfied with the judgment or decree of the [lower court] 

may appeal to the Supreme or Appeals Court and have a re-examination, in that 

court, of the whole matter of law and fact appearing in the record." Id. at 1020. 

The court also noted: 

Apparently the petitioner has overlooked the fact that the 

[lower court], a court of record in this State, assumed 

jurisdiction of the cause and, as admitted by petitioner, 

decided the issues involved therein satisfactorily to her, 

and a decree of that court is as final and as binding on the 

parties and issues involved as would be a decision of this 

court. 

Id. This rationale is equally applicable in this situation. The circuit court has 

assumed jurisdiction and modified the trust documents precisely as Estate 

petitioned. There having been no appeal from a party aggrieved by that decision, 

this Court has no jurisdiction to proceed on the merits in a review of the circuit 

court's decision. According to this Court's well-settled jurisprudence, this appeal is 

dismissed. 

[¶8.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER 

and MEIERHENRY, Justices, participating.