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In

October 17, 2012

IN THE MATTER OF THE ESTATE OF JAMES W. KESLING, DECEASED.


APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT WALWORTH COUNTY, SOUTH DAKOTA THE HONORABLE SCOTT P. MYREN Judge

The opinion of the court was delivered by: Gilbertson, Chief Justice.

CONSIDERED ON BRIEFS ON MAY 21, 2012

[¶1.] James W. Kesling executed a holographic will. After James died, the will was admitted into probate and James's three daughters were appointed as copersonal representatives of James's estate. Both the Estate and James's wife, Sandra, petitioned the circuit court to construe the will. The Estate moved for summary judgment and the circuit court granted the motion. Sandra appeals, arguing that the will is ambiguous, and thus, the court erred by not considering extrinsic evidence as to James's intent.

FACTS

[¶2.] James Kesling executed a holographic will on April 2, 2008, and passed away on July 4, 2008. He was survived by his wife, Sandra, and three daughters from a previous marriage, Kandi Smith, Staci Stern, and Jami Mendoza. Sandra and James had been married for twenty-nine years and did not have any children together.

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

April 2, 2008 10:00 A.M.

Last Will and Testament of James W. Kesling Dated this 2nd Day of April 2008

I James W. Kesling do hereby will all my personal property and personal belongings to Sandra L. Kesling of Mobridge who is my wife. This includes my land in Dewey, Corson and Walworth Counties. I also will my Contract For Deed with Faron Schweitzer, Coffy Enright and Richard Enright. It is my wish that my Estate be Administrated my By my daughters and and [sic] upon Sandra L. Kesling [sic] death the Estate shall be divided Equally between my 3 daughters (over) I James W. Kesling being of Sound Mind and body do Hereby Sign this Document.

James signed the document and Sandra notarized it. After James died, the will was admitted into probate and James's three daughters were appointed as co-personal representatives of James's estate.

[¶4.] The daughters and Sandra did not agree on the meaning of James's will. The daughters believed that James intended to give Sandra a life estate in his real and personal property with a remainder to the three daughters. Sandra believed that James intended to leave all property with Sandra outright with the "wish" that Sandra would then pass her property to James's daughters when Sandra passed away, or that if Sandra predeceased James, the daughters would inherit James's property upon his death. Both the Estate and Sandra petitioned the court to construe the will.

[¶5.] The Estate moved for summary judgment. After a hearing, the circuit court granted the motion, holding that the will unambiguously demonstrates

James's intent to devise his real and personal property to Sandra for life with the three daughters as ...


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