#24898-rev & rem-SLZ 

2008 SD 126

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 

Avon, South Dakota Attorney for appellants James 

W. Olson and Gary E. Olson. 

CRAIG K. THOMPSON 

Vermillion, South Dakota Attorney for appellees Estate of 

Glenn E. Olson and Wayne A. 

Olson, as Personal 

Representative. 

SHEILA S. WOODWARD 

STEVEN K. HUFF of 

Johnson, Miner, Marlow, 

 Woodward & Huff, LLP 

Yankton, South Dakota Attorneys for appellees Jared 

and Luke Muhlbauer 

* * * * 

CONSIDERED ON BRIEFS 

ON NOVEMBER 3, 2008 

 OPINION FILED 12/23/08
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#24898 

ZINTER, Justice 

[¶1.] Over the objection of the personal representative,1 two specific 

devisees in the Estate of Glenn Olson (the Estate) moved to intervene in an Estate 

proceeding. The proceeding involved a third party claim to real property the 

devisees stood to inherit under the will. The devisees appeal the denial of their 

motion to intervene. Under the unusual circumstances of this case, we reverse. 

Facts and Procedural History

[¶2.] In In re Estate of Olson, 2008 SD 4, 744 NW2d 555 (Olson I), a majority 

of this Court held that the personal representative had no authority to sell 

specifically devised real property, and therefore, the personal representative’s sale 

to Jerad and Luke Muhlbauer (Muhlbauers) was void. The Court then remanded 

the matter to the circuit court to allow the Muhlbauers to intervene and protect 

their interests. Following remand, Muhlbauers intervened and filed a claim against 

the Estate seeking to confirm the sale that this Court had previously voided. In the 

alternative, Muhlbauers asserted a damage claim that they contended would arise 

if the sale were not confirmed. Muhlbauers’ claims were based on their contention 

that they were good faith purchasers for value who were protected as if the personal 

1. During the pendency of this appeal, the parties informed this Court that 

Wayne A. Olson, personal representative of the Estate of Glenn Olson, passed 

away. The parties did not, however, indicate that the Estate has changed its 

position on the merits. 
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representative had been properly authorized to sell the property. See SDCL 29A-3-

714.2

[¶3.] Over the personal representative’s objection, James W. Olson (James) 

and Gary E. Olson (Gary), beneficiaries of the estate, moved to intervene in the 

proceedings involving Muhlbauers’ claims. James and Gary, who were entitled to 

the property as specific devisees under the will, objected to the personal 

representative’s legal position that the sale of the property to Muhlbauers should 

again be confirmed. The circuit court denied James and Gary’s motion to intervene, 

concluding that the personal representative was deemed to adequately represent 

the interests of all beneficiaries of the Estate. See SDCL 29A-3-715(22). James and 

Gary appeal contending that the circuit court erred in denying their motion to 

intervene as a matter of right under SDCL 15-6-24(a), or as a matter of discretion 

under SDCL 15-6-24(b). 

2. SDCL 29A-3-714 provides: 

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 § 29A3-504, 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. 
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Decision 

[¶4.] We generally review a circuit court’s decision denying a motion to 

intervene under the abuse of discretion standard of review. Baker, et al. v. 

Atkinson, et al., 2001 SD 49, ¶12, 625 NW2d 265, 269-70 (citations omitted). This 

case, however, presents a question of first impression in this jurisdiction 

regarding intervention in representative litigation under SDCL 15-6-24. The 

circuit court applied the general rule precluding intervention in such cases. We 

must decide whether an exception should be adopted. We consider that question 

of law de novo. 

[¶5.] “South Dakota’s court rule SDCL 15-6-24(a)(2) is almost identical to 

Federal Rule of Civil Procedure 24(a)(2).” In re D.M, 2006 SD 15, ¶5, 710 NW2d 

441, 443-44. SDCL 15-6-24(a)(2) governs intervention as a matter of right and 

provides, in relevant part: 

Upon timely application anyone shall be permitted to intervene 

in an action: 

. . . 

(2) When the applicant claims an interest relating to the 

property or transaction which is the subject of the action and he 

is so situated that the disposition of the action may as a 

practical matter impair or impede his ability to protect that 

interest, unless the applicant’s interest is adequately 

represented by existing parties. 

The purpose of this rule is “to obviate delay and multiplicity of suits by creating an 

opportunity to persons directly interested in the subject matter to join in an action 

or proceeding already instituted.” In re D.M., 2006 SD 15, ¶4, 710 NW2d at 443 

(quoting Mergen v. N. States Power Co., 2001 SD 14, ¶5, 621 NW2d 620, 622). 

Intervention is strictly procedural and “intervention standards are flexible, allowing 
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for some tailoring of decisions to the facts of each case.” Id. (quoting Southard v. 

Hansen, 342 NW2d 231, 233-34 (SD 1984)). “Rule 24 is construed liberally, and we 

resolve all doubts in favor of the proposed intervenors.” United States v. Union 

Elec. Co., 64 F3d 1152, 1158 (8thCir 1995) (citing Kansas Pub. Employees 

Retirement Sys. v. Reimer Koger Assocs., Inc., 60 F3d 1304, 1307 (8thCir 1995)). In 

applying this rule, this Court utilizes the following tripartite test: 

1) the party must have a recognized interest in the subject 

matter of the litigation; 2) that interest must be one that might 

be impaired by the disposition of the litigation; and 3) the 

interest must not be adequately protected by the existing 

parties. 

D.M., 2006 SD 15, ¶5, 710 NW2d at 444. 

1) James’s and Gary’s Interests in the Subject Matter of the Litigation 

[¶6.] “Upon 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 [(Gary)] at the time of Glenn’s death, subject only to the 

probate of the estate.” Olson I, 2008 SD 4, ¶15, 744 NW2d at 560 (citing generally 

In re Estate of Roehr, 2001 SD 85, ¶6, 631 NW2d 600, 602). Because the real 

property at issue vested in James and Gary subject only to administration of the 

estate, they had a recognized interest in the property that was the subject matter of 

this litigation. 

2) Impairment of James’s and Gary’s Property Interests by the Disposition of the 

Litigation 

[¶7.] Muhlbauers’ primary claim against the Estate is to “award or 

otherwise confirm the original sale from the Estate to the Muhlbauers.” Complaint, 
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¶10. The Estate’s personal representative, Wayne A. Olson (Wayne), agreed with 

the position of these claimants against the Estate. In his answer to Muhlbauers’ 

complaint, Wayne admitted “that part of paragraph 10 [of Muhlbauers’ complaint] 

that the court should confirm the sale.” Estate’s Answer to Muhlbauers’ Complaint, 

¶6. See also infra ¶10. Similarly, with respect to Muhlbauers’ alternative claim for 

damages, Wayne asserted that confirmation of the sale was the Estate’s proposed 

resolution of Muhlbauers’ claim for damages. Wayne stated: 

[James and Gary’s] claim that Wayne’s ‘activities have resulted 

in a claim for damages to be submitted’ by the [Muhlbauers]. 

This claim, however, has not come to fruition nor is it likely ever 

to do so. The [Muhlbauers] will likely invoke SDCL [] 29A-3-

714[,] which protects bona fide purchasers for value. This will 

permit the [Muhlbauers] to retain the land without loss to 

Glenn’s Estate. 

Estate’s Response to James and Gary’s Petition for Removal and Restraining Order, 

¶9 (emphasis added). Thus, if the personal representative’s position were adopted 

by the circuit court, James and Gary would be divested of their specific devise, and 

their dispositional interest in that property would be impaired by the outcome of 

this litigation. 

3) James’s and Gary’s Interests-Adequate Protection by Existing Parties 

[¶8.] The only dispute in this case is whether the personal representative 

would adequately represent James’s and Gary’s interests. At the conclusion of the 

hearing, the circuit court denied intervention reasoning that James’s and Gary’s 

interests would be adequately represented by the personal representative. The 

court reasoned: 

I think there’s particularly a reason to deny the intervention in 

this case when . . . the proposed intervenors have no interests 
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that are in any way different from the other heirs’, no reason 

why the personal representative would not – in defending 

himself, would not – or defending the estate, would not 

represent all of the heirs who have the same interests. These 

proposed intervenors have no interest any different than any of 

the other heirs. 

The personal representative, however, aligned the Estate with the Muhlbauers’ 

claim against the Estate by agreeing that the original property sale to Muhlbauers 

should be confirmed. This position was directly at odds with James’s and Gary’s 

interests. 

[¶9.] Although we have not had occasion to consider such conflicts, the issue 

of a beneficiary’s right to intervene when the beneficiary’s interests are adverse to 

those of the personal representative has been considered in both Colorado and 

Montana under similar versions of Rule 24. Those courts apply the rule adopted by 

the circuit court that, generally, in representative litigation, the personal 

representative is entitled to represent the estate without intervention by 

beneficiaries even if the beneficiaries have some disagreement with the personal 

representative’s decisions. Those courts, however, also recognize an exception. 

Both courts explained that on some occasions, compelling circumstances may make 

representative litigation by the personal representative inadequate to represent the 

interests of all beneficiaries. The Montana Supreme Court, referring to a Colorado 

case, identified the circumstances under which the general rule and the exception 

apply: 

This . . . problem was addressed in the recent Colorado case of In 

the Matter of the Estate of Scott. There, heirs of the decedent 

attempted to intervene, in order to appeal from an adverse 

ruling on a claim defended by the administrator. In denying 

intervention, the Colorado Court said: 
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We noted . . . that there are substantial problems with 

basing the right to intervene upon various questions 

as to how or in what manner a law suit should be 

prosecuted. When the law created a mechanism 

whereby one person as a representative of a group 

could conduct litigation, the purpose was the efficient, 

speedy, and orderly determination of rights which 

were held in common. For the courts to grant 

intervention to any member of a represented class 

who disagrees with the decisions of the 

representative, solely on that basis, would in our view 

defeat the entire purpose of representative litigation. 

A personal representative, under such a rule, would 

always be in danger of losing the ability to represent 

and act for the estate and might well find himself 

relegated to a position of looking on as the affairs of 

the estate became hopelessly entangled. It seems 

hardly likely that the General Assembly when it 

clothed the personal representative with far reaching 

affirmative powers, could have intended for his 

position to be so fragile. 

Montana ex rel. Palmer, 619 P2d 1201, 1203-04 (Mont 1980) (quoting Estate of 

Scott, 577 P2d 311, 313 (Colo 1978)) (internal citations omitted) (emphasis added). 

That court went on to say that in determining adequacy of 

representation under Rule 24(a), the court will look to see if 

“there is a party charged by law with representing (the absent 

party’s) interest. (If so,) then a compelling showing would be 

required to show why this representation is not adequate.” 

Id. As the Scott court further explained, although the general rule involves a 

presumption that the personal representative will adequately represent the group 

in discretionary matters (including matters such as trial strategy), the focus of the 

analysis should ultimately depend on identity of interests. Scott, 577 P2d at 313-

14. When the representative is unable to adequately represent all the group 

members because of a “divergence of interests . . . which in and of itself cast doubt 
#24898 

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upon the adequacy of the representation,” the exception may apply. Id. at 313. 

We agree with this analysis. 

[¶10.] In this case, it is apparent that the personal representative cannot 

adequately represent the totally divergent interests of the personal representative 

who desires to sell the property and those beneficiaries who contend that the will 

does not authorize the personal representative to sell the property. While James 

and Gary continue to object to confirmation of the sale that was voided in Olson I, 

the personal representative seeks to have the sale confirmed. Indeed, the personal 

representative answered the Muhlbauers’ complaint, specifically admitting that the 

sale should be confirmed. That answer provided, in part: 

6. [Estate] admits that part of paragraph 10 stating that the 

court should confirm the sale. 

7. [Muhlbauers] are recipients of a personal representative’s 

deed and are good faith purchasers for value under SDCL 

29A-3-714 and as such should have clear title to the property 

in question and thus have no damages. . . . 

WHEREFORE, [Estate] prays for Judgment as follows: 

1. That the Court find [Muhlbauers] are good faith purchasers 

for value under SDCL 29A-3-714 and as such, are entitled to 

keep title to the real property in question[.] 

 

[¶11.] This divergence of interests was compounded by the fact that James 

and Gary had petitioned to remove Wayne as the personal representative. 

Furthermore, Wayne was potentially liable to both the specific devisees and the 

Muhlbauers as a result of the initial voided sale to the Muhlbauers. See SDCL 29A- 
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3-712.3 Although we express no opinion as to the validity of such claims, we note 

that confirmation of the sale in this proceeding could favorably affect the personal 

representative’s liability while adversely affecting James’s and Gary’s dispositional 

interest. 

[¶12.] Considering these circumstances, a compelling showing was made 

that James’s and Gary’s interests were sufficiently divergent from that of the 

personal representative to permit intervention as a matter of right under SDCL 15-

6-24(a)(2).4 We adopt this exception to the general rule of representative 

representation and reverse the circuit court’s denial of the motion to intervene. 

Attorney’s Fees 

[¶13.] The personal representative has moved for appellate attorney’s fees. 

Because the Estate has not prevailed, the motion is denied. 

[¶14.] Reversed and remanded for further proceedings consistent with this 

opinion. 

[¶15.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and 

MEIERHENRY, Justices, concur. 

3. SDCL 29A-3-712 provides: 

If the exercise of power concerning the estate is improper, the personal 

representative is liable to interested persons for damage or loss 

resulting from breach of fiduciary duty. The rights of purchasers and 

others dealing with a personal representative shall be determined as 

provided in §§ 29A-3-713 and 29A-3-714.

 

4. Because James and Gary are entitled to intervention as a matter of right 

pursuant to SDCL 15-6-24(a)(2), we do not address their claims under SDCL 

15-6-24(b).