ESTATE OF Edna Jane HOWE.
Nos. 22901, 22917, 22957, 22983
Supreme Court of South Dakota.
Decided Oct. 20, 2004.
2004 SD 118. Argued March 22, 2004.
Jeff Adel and Casey N. Bridgman of Bridgman and Adel, Wessington Springs, South Dakota, Attorney for appellant Lance Howe.
Rick Johnson and Sandy Steffen of Johnson, Eklund, Nicholson & Peterson, Gregory, South Dakota, Attorneys for appellee Michael Howe.
JENSEN, Circuit Judge.
[¶1.] Randolph Howe (Randolph) and Lance Howe (Lance) each appeal a trial court order distributing the proceeds of a wrongful death and survival tort action arising from the death of Edna Jane Howe (Edna) on March 29, 1999. Both also appeal a subsequent trial court order setting the amount of a supersedeas bond at $2,250,000. All four appeals are consolidated in this opinion. For the reasons set forth herein, we affirm in part and reverse and remand in part.
FACTS AND PROCEDURE
[¶2.] Edna and her husband Richard Howe (Richard) had three children during their marriage, Randolph, Andrew Howe (Andrew), and Michael Howe (Michael). Edna‘s husband and her son, Andrew, both predeceased her. Andrew had three children, all of whom were living at the time of Edna‘s death. Lance is one of Andrew‘s children.
[¶3.] Randolph and Michael were born in 1940 and 1947, respectively, and were
[¶4.] In July 1991 Edna gave a joint power of attorney to Michael and Randolph. Edna also deeded them her home in Pierre. In September 1991 Edna suffered an illness that required her hospitalization in Pierre. After a brief stay, Michael and Randolph placed Edna in a local retirement home. Michael and Randolph both spent a considerable amount of time with her while she recovered. Believing that Edna would not be able to return to her home, Michael and Randolph sold it. During this time, Randolph‘s wife, Dottie, handled Edna‘s financial affairs and sold some of her personal effects. Randolph and Dottie also took possession of some of Edna‘s personal property.
[¶5.] In March 1992 Edna hired an attorney to help her regain control of her financial affairs. Though Edna had shown mild signs of dementia, her attorney was satisfied at the time that she was competent. Edna‘s attorney wrote several letters in an effort to help her regain control of her financial affairs. This included a letter to Dottie requesting the return of Edna‘s financial papers and personal property and the revocation of any powers of attorney that Edna may have signed. These communications enraged Randolph and he became extremely upset while meeting with Edna‘s attorney, telling him not to stick his nose in where it did not belong.
[¶6.] In April 1992 Michael received a phone call informing him that Edna‘s property would be hauled to the dump if it was not retrieved from Randolph‘s home by five o‘clock that day. Michael promptly traveled from Rapid City to Randolph‘s home to pick up the property including clothing, furniture and financial records. He found the items placed outside the front of Randolph‘s home. While Michael was loading the property, Randolph came out and told him, “I never want to see you or that old woman or talk to you again.”
[¶7.] The evidence shows that Randolph became totally estranged from his mother after April 1992. At Edna‘s request, Michael moved her to Rapid City at that time. Edna continued to live in Rapid City until her death in 1999. Edna alternated between residing at Michael‘s home or at nursing/retirement homes. The trial court found that after April 1992 Randolph never saw or spoke to his brother or his mother again during her lifetime.
[¶8.] Lance grew up in Pierre while his grandmother, Edna, was living there. He had a close relationship with Edna and spent a considerable amount of time with her while growing up. After reaching adulthood, Lance continued to maintain a relationship with Edna until her death.
[¶9.] In August 1992 Edna executed a will leaving her entire estate to Michael with the exceptions of a bequest of furniture to a granddaughter and a $2,000 bequest to Randolph. This was a change from a prior will she executed in January 1992 dividing her property equally between Randolph, Michael and Andrew‘s children. The will was admitted to probate on December 24, 2001, and was not contested by Randolph or Lance.
[¶10.] Edna died at a nursing home in March 1999. Michael hired an attorney to look into a wrongful death action regarding her death. The attorney agreed to pursue the claim on a contingency fee, but advised Michael that he would ultimately be responsible for the costs in the case, which could be as much as $50,000. Mi-
[¶11.] The tort claim against the nursing home was settled in the fall of 2001. The settlement proceeds were used to pay costs, attorneys’ fees and expenses, and to reimburse Michael for out-of-pocket expenses. Additionally, Michael placed $50,000 of the proceeds in reserve for the ongoing litigation with the bed manufacturer. The balance of the settlement, except the $2,000 bequest to Randolph, was distributed to Michael without objection from Randolph or Lance.
[¶12.] In January 2002 Michael gave Lance a check for $10,000 which was a part of the settlement proceeds from the nursing home. Michael told Lance that there had been a settlement on Edna‘s case and that there would likely be an additional settlement in the six figure range for Lance and the other grandchildren. He also told Lance that it would be enough money to change his life and that he should consider hiring a financial advisor. Lance took the check to Randolph and offered to give him half of it. Although Randolph did not receive any of the money, Michael found out about the proposal and became upset. As a result, Michael decided not to give any more money to Lance.
[¶13.] While the tort claim was pending, one of the defendants filed a motion for summary judgment to exclude all grandchildren from the action. Lance did not receive notice of the motion and did not appear in opposition to it. Neither Michael nor the estate filed a brief in opposition to the exclusion of the grandchildren though they did orally resist the motion at the hearing. The court granted the summary judgment motion and excluded all grandchildren from the action.
[¶14.] The tort claim against the bed manufacturer was eventually settled. Michael petitioned the court to approve the settlement and allocate the proceeds between the survival action and the wrongful death action. Michael also petitioned the court to distribute all the proceeds of the wrongful death settlement to him after payment of expenses. Randolph and Lance objected to Michael‘s petition to distribute the proceeds, but agreed to a distribution to Michael of one-third of the net settlement proceeds.
[¶15.] Randolph and Lance appeal the trial court‘s order allocating the settlement proceeds between the survival action and the wrongful death action, as well as the order distributing all the wrongful death proceeds to Michael. Randolph and Lance
STANDARD OF REVIEW
[¶16.] We review the trial court‘s findings of fact under the clearly erroneous standard. City of Deadwood v. Summit, Inc., 2000 SD 29, ¶ 9, 607 N.W.2d 22, 25 (citing New Era Mining Co. v. Dakota Placers, Inc., 1999 SD 153, ¶ 7, 603 N.W.2d 202, 204). Under this standard, we reverse only when “we are left with a definite and firm conviction that a mistake has been made” after a thorough review of the evidence. Id. “The trial court‘s findings of fact are presumed correct and we defer to those findings unless the evidence clearly preponderates against them.” Lewis v. Moorhead, 522 N.W.2d 1, 3 (S.D. 1994) (citing Cuka v. Jamesville Hutterian Mut. Soc., 294 N.W.2d 419, 421 (S.D. 1980)). Conclusions of law are reviewed under a de novo standard, giving no deference to the trial court‘s conclusions of law. Sherburn v. Patterson Farms, Inc., 1999 SD 47, ¶ 4, 593 N.W.2d 414, 416 (citing City of Colton v. Schwebach, 1997 SD 4, ¶ 8, 557 N.W.2d 769, 771). Likewise, construing a statute entails answering a question of law; thus, we review the trial court‘s statutory interpretation de novo. Esling v. Krambeck, 2003 SD 59, ¶ 6, 663 N.W.2d 671, 675.
[¶17.] We will not reverse a trial court‘s division of property “unless it clearly appears the trial court abused its discretion.” Divich v. Divich, 2003 SD 73, ¶ 7, 665 N.W.2d 109, 112 (citing Kanta v. Kanta, 479 N.W.2d 505, 507 (S.D. 1991)). “The term ‘abuse of discretion’ refers to a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.” Id. (citing Kanta, 479 N.W.2d at 507; Gross v. Gross, 355 N.W.2d 4, 7 (S.D. 1984); Rykhus v. Rykhus, 319 N.W.2d 167 (S.D. 1982); Herndon v. Herndon, 305 N.W.2d 917 (S.D. 1981); Davis v. Kressly, 78 S.D. 637, 107 N.W.2d 5 (1961)). This Court also reviews the trial court‘s determination setting the undertaking for a supersedeas bond under an abuse of discretion standard. Landstrom v. Shaver, 1996 SD 49, 550 N.W.2d 699, 704.
ANALYSIS AND DECISION
ISSUE ONE
[¶18.] Whether the trial court abused its discretion in determining that Randolph was not entitled to receive any of the proceeds from the settlement of the wrongful death action?
[¶19.] Randolph claims that the trial court erred in three respects in determining that he was not entitled to any of the proceeds from the wrongful death settlement. Initially, Randolph claims that it was error for the trial court to apply waiver and estoppel to bar his right to share in the settlement proceeds. He also contends that the trial court erred in determining that Michael pursued the wrongful death action for his own benefit and not for the benefit of any other party. Finally, Randolph argues that the trial court erred in denying his right to distribution of the settlement proceeds on the grounds that he suffered no pecuniary loss due to Edna‘s death and for failing to consider the extent of Michael‘s pecuniary injury.
[¶21.]
Every action for wrongful death shall be for the exclusive benefit of the wife or husband and children, or if there be neither of them, then of the parents and next of kin of the person whose death shall be so caused; and it shall be brought in the name of the personal representative or regular or special administrator of the deceased person.2
The language of
[¶22.] Michael moved for appointment as special administrator to pursue the claim arising from Edna‘s death. As special administrator he was obligated to pursue the wrongful death action on behalf of all the statutory beneficiaries named in
[¶23.] Michael asserts that he pursued the wrongful death action solely for his own benefit after the attorney pursuing the claim concluded that only Michael had suffered pecuniary damages.3 This course of action was contrary to Michael‘s obligations as a special administrator. The responsibility to determine pecuniary loss and apportionment of damages is not for the special administrator, but for the jury or the court as may be appropriate under
[¶24.] The record does support the trial court‘s finding that Randolph was not cooperative in pursuing the wrongful death action. Randolph did so at his own peril. However, there is no evidence that Randolph‘s failure to cooperate prejudiced the wrongful death action or reduced the settlement amount. A claim of waiver or estoppel must be accompanied by some prejudice. By accepting the role of special administrator, Michael had a duty to pursue a claim for Randolph, as a statutory beneficiary, even if Randolph made this job difficult.
[¶25.] Michael argues that Randolph could have maintained his own wrongful death action based upon Sander v. Geib, Elston, Frost Professional Ass‘n, 506 N.W.2d 107, 127 (S.D. 1993). The following language from Sander does seem to suggest that each statutory beneficiary could maintain a separate action for wrongful death under
Under the facts of this case, Kim‘s surviving husband and her surviving children could have each brought a separate wrongful death action, at a different time (within the statute of limitations). Each of these individuals would be entitled to his/her own $1 million cap on wrongful death damages from medical malpractice.
However, the question in Sander was whether each statutory beneficiary had a separate cause of action for wrongful death under
[¶26.] As special administrator of Edna Howe‘s estate, Michael had the sole authority to pursue the wrongful death action on behalf of all the statutory beneficiaries. Randolph, as a statutory beneficiary, was not required to participate in the wrongful death action in order to protect his interest in the proceeds. Once obtained, the proceeds of the settlement did not become an asset of the estate or the personal property of Michael. Instead, as special administrator, Michael obtained and held the wrongful death proceeds on behalf of all the statutory beneficiaries until the money could be apportioned by the court pursuant to terms of the wrongful death statutes. See Douglas v. Holbert, 335 Ark. 305, 983 S.W.2d 392, 393-97 (1998).
[¶27.] The trial court also relied upon the assertion that Randolph‘s failure to object to the proposed settlement defeated his claim. The petition seeking court approval of the final settlement made no claim that the proposed settlement was solely for Michael‘s benefit. In fact, the petition specifically represented that “a wrongful death claim ... exist[ed] in favor of the ... statutory beneficiaries ...” and requested court approval to settle all “claims whatsoever arising out of the injuries suffered by the death of Edna Jane Howe[.]” Absent from the petition was any suggestion that the settlement was exclusively for Michael‘s benefit or that Randolph was excluded from the settlement. Under those circumstances, Randolph did not waive any right to the settlement by failing to object to it.
[¶29.] After determining the statutory beneficiaries under
[¶30.] In its apportionment, it was proper for the trial court to consider pecuniary injury as this court recently held in In re Estate of Watson, 2003 SD 142, 673 N.W.2d 60. Estate of Watson, decided after the trial court‘s decision here, involved the distribution of a wrongful death settlement under
[¶31.] The trial court considered the extent of Randolph‘s pecuniary injury. However, the court should also have considered the extent of the pecuniary injury to Michael in relationship to the total settlement. Pecuniary injury has been said to be the foundation of a wrongful death action. See Luider v. Skaggs, 693 N.E.2d 593 (Ind. Ct. App. 1998); James v. Middletown Community Health Center, Inc., 278 A.D.2d 280, 718 N.Y.S.2d 358 (N.Y. App. Div. 2000); Com. v. Opperman, 780 A.2d 714 (Pa. Super. Ct. 2001), appeal denied, 568 Pa. 617, 792 A.2d 1253 (2001). In Zoss v. Dakota Truck Underwriters we defined pecuniary injury as follows:
[P]ecuniary injury encompasses more than strictly economic losses in that it includes “the loss of decedent‘s companionship and society as expressed by, but not limited to, the words ‘advice,’ ‘assistance,’ and ‘protection,’ but without consideration for the grief and mental anguish suffered by the beneficiaries because of the wrongful death.”
Id. at ¶ 11, 590 N.W.2d 911, 913-14 (quoting Sander, 506 N.W.2d at 119, Flagtwet v. Smith, 367 N.W.2d 188, 191 (S.D. 1985)).
[¶32.] There was no evidence that Michael or Randolph suffered any economic loss as a result of Edna‘s death. There
[¶33.] The trial court‘s failure to consider the pecuniary injury to both parties requires that the case be remanded for the court to reconsider the distribution in this case. Moreover, the exclusion of Randolph from consideration as a beneficiary because of Michael‘s claim that the tort action was pursued only for Michael‘s benefit and because Randolph did not participate was error. Michael and Randolph should have started on equal footing as statutory beneficiaries in considering the apportionment of the settlement under
[¶34.] On remand, the trial court must reconsider the distribution between Michael and Randolph in a manner consistent with this decision.
ISSUE TWO
[¶35.] Whether the trial court erred by allocating twenty percent of the proceeds to the survival action when the petition for distribution filed by the personal representative proposed that approximately three percent of the proceeds be allocated to the survival action?
[¶36.] Randolph argues that the allocation of eighty percent of the proceeds to the wrongful death action and twenty percent to the survival action was error because Michael had originally petitioned to allocate only three percent to the survival action and the balance to the wrongful death action. Randolph argues that Michael presented the 80/20 proposal on the day of trial and that he was prejudiced by this late change.
[¶37.] Lance has not raised this issue on appeal and the record does not show that Randolph objected to the 80/20 allocation or otherwise argued that he was prejudiced by the proposed change
[¶38.] Even if the issue were properly preserved, Randolph has failed to show that the trial court abused its discretion in making the 80/20 allocation. We will not disturb the trial court‘s allocation of eighty percent of the settlement proceeds to the wrongful death action and twenty percent to the survival action.
ISSUE THREE
[¶39.] Whether Lance Howe was barred by
[¶40.] Lance claims that he was a beneficiary under the wrongful death statute through his father, Andrew, who predeceased Edna. Lance acknowledges that he was not a child under
[¶41.] Questions of statutory interpretation are reviewed by this Court de novo. Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611. The purpose of statutory construction is to interpret the true intention of the law, which is to be construed primarily from the plain meaning of the statute. Appeal of AT & T Information Systems, 405 N.W.2d 24, 28 (S.D. 1987). See also Moss v. Guttormson, 1996 SD 76, ¶ 10, 551 N.W.2d 14, 17 (citing U.S. West Communications, Inc. v. Public Utilities Comm‘n, 505 N.W.2d 115, 122-23 (S.D. 1993)). The intent of a statute is determined from what the legislature said, rather than what the courts think it should have said. Martinmaas, 2000 SD 85 at ¶ 49, 612 N.W.2d at 611 (citing Moss, supra). “When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court‘s only function is to declare the meaning of the statute as clearly expressed. Id. [R]esorting to legislative history is justified only when legislation is ambiguous, or its literal meaning is absurd or unreasonable. Absent these circumstances, we must give legislation its plain meaning. We cannot amend to produce or avoid a particular result.” Slama v. Landmann Jungman Hospital, 2002 SD 151, ¶ 7, 654 N.W.2d 826, 828 (quoting Petition of Famous Brands, Inc., 347 N.W.2d 882, 885 (S.D. 1984)).
[¶42.]
[¶43.] “The word ‘children’ is normally used to denote issue of the first generation only.” Black‘s Law Dictionary, 254 (8th ed. 2004)(quoting Restatement of Property § 267 cmt. c (1940)). Further, while not a part of the wrongful death statutory scheme, the legislature has defined “child” in the Uniform Probate Code as excluding “a person who is only ... a grandchild[.]”
[¶44.] Lance argues that, because
[¶45.]
[¶46.] Lance‘s interpretation of
[¶47.] Lance‘s statutory interpretation requires that we make assumptions about
[¶49.] Having concluded that Lance was not a beneficiary under
ISSUE FOUR
[¶50.] Whether the trial court erred by ordering Randolph Howe and Lance Howe to post a supersedeas bond in the total amount of $2,255,000.
[¶51.] Randolph and Lance also appeal from the trial court‘s order establishing a supersedeas bond in this case. The trial court entered an order requiring Randolph and Lance to post a bond in the amount of $2,255,000 in order to stay distribution of the settlement proceeds to Michael pending the appeal. The order provided for a default bond in the amount of $2,050,000 payable to the Estate and a supersedeas bond payable to Michael Howe in the amount of $205,000. From the transcript of the bond hearing, the trial court‘s apparent rationale for establishing the “default bond” was to protect the remaining settlement proceeds being held in the trust account of the estate‘s attorney. The reason for the “supersedeas bond” was to provide for one year of interest on the undistributed settlement proceeds at the statutory judgment interest rate.
[¶52.] Michael initially argues that the issue is moot because the funds have been distributed consistent with the trial court‘s order. This Court has held that: “[A]n appeal will be dismissed as moot where, before the appellate decision, there has been a change of circumstances or the occurrence of an event by which the actual controversy ceases and it becomes impossible for the appellate court to grant effectual relief.” State ex rel. Johnson v. Mathis Implement, Inc., 325 N.W.2d 58, 59 (S.D. 1982) (quoting Matter of Silver King Mines, Permit EX-5, 315 N.W.2d 689, 690 (S.D. 1982); Rapid City Journal v. Circuit Court, Etc., 283 N.W.2d 563, 565 (S.D. 1979)). In addition, this Court has held that:
Before an appeal will be dismissed on the grounds that the questions involved have become moot it must appear clearly and convincingly that the actual controversy has ceased; it must appear that the only judgment which could be entered would be ineffectual for any purpose and would be an idle act concerning rights involved in the action.
State v. Shape, 517 N.W.2d 650, 656-57 (S.D. 1994) (quoting Aetna Life Ins. Co. v. Satterlee, 475 N.W.2d 569, 572 (S.D. 1991)).
[¶53.] In this case, there has not been a change of circumstances or an occurrence of an event by which the actual controversy has ceased nor is it impossible for this Court to grant effectual relief; therefore, this issue is not moot. See Sjomeling v. Sjomeling, 472 N.W.2d 487 (S.D. 1991). In the event of a reversal or remand, this Court or the trial court may order that the funds at issue be re-deposited in the estate attorney‘s trust account. Under these circumstances, the bond issue would only be moot if Randolph and
[¶54.] An appellant must execute a supersedeas bond in order to stay enforcement of a judgment or order pending the appeal of that judgment or order.
[¶55.] The parties disagree as to whether
[¶56.]
[¶57.] Michael argues that the bond established by the trial court was appropriate because the court properly considered the fact that Randolph or Lance‘s appeal could breach confidentiality obligations in the tort claim settlement agreement and jeopardize the settlement proceeds. This is not a proper basis to require a supersedeas or default bond under
[¶58.] If Randolph or Lance breach obligations of confidentiality in their appeals there are remedies available, but a supersedeas bond cannot be expanded for such a purpose. A supersedeas bond is not intended to protect the appellee from
[¶59.] The trial court also ordered the posting of a supersedeas bond in the amount of $205,000 in favor of Michael. The court appears to have required this bond to protect Michael from the loss of interest while the funds remained in the trust account during the appeal process. Randolph and Lance point out that the money was in an interest bearing account, but there is nothing in the record indicating the amount of interest. More problematic is how the bond would be used at the conclusion of the appeals. Even if Randolph and Lance were unsuccessful, there is no legal basis to require them to pay interest for any delay in distribution resulting from the appeals. Every estate proceeding requires time to distribute proceeds to the beneficiaries, but this does not entitle the beneficiaries to interest other than that earned while the proceeds remain in the estate. This is true even when there is a contest as to the distribution of all or a portion of the assets or proceeds. Accordingly, the supersedeas bond for interest was unnecessary.
[¶60.] There has been no other basis asserted to support the supersedeas bond ordered by the trial court. Therefore, we hold that the court abused its discretion in ordering the entire supersedeas bond amount of $2,255,000. Since the case is remanded to the trial court as set forth above, the court should order on remand that Michael re-deposit the amount distributed to him under the court‘s original order, or it should enter such other order as it deems appropriate to ensure that any distribution to Randolph is paid. While such an order may place Michael in a difficult position, that is the risk of immediate execution on an order before the time for appeal has passed or while the appeal is pending. See, Wasserburger v. Consolidated Management Corporation, 459 N.W.2d 561 (S.D. 1990).
[¶61.] Affirmed in part, reversed in part and remanded.
[¶62.] GILBERTSON, Chief Justice, and KONENKAMP, Justice, concur.
[¶63.] SABERS and MEIERHENRY, Justices, concur in part and dissent in part.
[¶64.] JENSEN, Circuit Judge, for ZINTER, Justice, disqualified.
SABERS, Justice (concurring in part and dissenting in part).
[¶65.] I concur in all respects except that I dissent on issue 3.
[¶66.] This is a lawsuit conceived in greed and executed with almost robot-like precision. It was from start to finish the pinnacle of selfishness and greed, the likes of which the world would do better without.
[¶67.] Michael, as personal representative for the wrongful death heirs of the estate of Edna Howe, had a fiduciary duty to do right by them. He breached this obligation at every opportunity. Michael had a fiduciary obligation to include, not exclude, all the wrongful death heirs of the Edna Howe estate in the proceedings. This includes not only Randolph but Lance Howe and his siblings, the children of Andrew Howe, deceased.
[¶68.] Michael‘s breach of his fiduciary duty to Lance and his siblings is exemplified in the way the estate handled the motion by Hill-Rom for summary judgment, in the underlying wrongful death action, to exclude the heirs of Andrew Howe from the wrongful death action. Neither Lance nor either of his siblings were given notice of this summary judg-
[¶69.] The trial court‘s reasoning in denying Lance‘s claim to a share of the proceeds from the wrongful death action is also flawed. The trial court concluded that
[¶70.] South Dakota‘s first wrongful death statute was enacted in 1887, two years before the state came into existence. This statute held that in the case of a wrongful death, “the widow, heir or personal representatives of the deceased shall have the right to sue.” Chapter 33, § 5499, Compiled Laws of Dakota, 939 (1887). In 1900, the South Dakota Supreme Court dealt with the issue of who is considered an “heir” under the statute. Lintz v. Holy Terror Mining Co., 13 S.D. 489, 83 N.W. 570 (1900). This case involved a man who had never been married and had no children. The Court held:
At common law a person born or begotten in lawful wedlock is an heir, and to effectuate the intention of the maker of an instrument courts have frequently held that the term was used to denote heirs of the body, or issue. [citations omitted]. There is no reason why the same rule of construction should not be invoked to obtain the object of the legislature.
Lintz, 13 S.D. 489, 83 N.W. at 571 (emphasis added). Although the question of grandchildren did not arise in this case, by stating that recovery could be had by “heirs of the body, or issue,” the Court implied that grandchildren would have been allowed to recover under the 1887 statute.
[¶71.] In 1909, the South Dakota legislature decided it would be unfair that a wrongdoer would be able to escape liability for his acts merely because the deceased was unmarried and did not have any children. Therefore, it modified the statute, which provides in pertinent part:
Every action for wrongful death shall be for the exclusive benefit of the wife or husband and children, or if there be neither of them, then of the parents and next of kin of the person whose death shall be so caused.
S.B. 303, S.L. Chapter 301 (later codified as SDC Section 37.2203). Since then the statute has been codified as
[¶72.] It is significant to note that the statute does not say “wife or husband and surviving children.” It says “wife or hus-
[¶73.] In addition to the purpose and history of the statute, public policy controls the definition of children in
A child born to or adopted by the testator after the execution of the will who is neither mentioned nor provided for in the will is entitled to receive a share in the estate....
Therefore, “omitted children” have a statutory right to a share of their parents’ estate.
[¶74.] In the situation where the parent dies intestate, state law mandates that:
Any part of the intestate estate not passing to the decedent‘s surviving spouse ... passes in the following order to the individuals designated below who survive the decedent:
(1) To the decedent‘s descendents by representation;
....
(a) If an individual named as a devisee in a will dies before the will was executed, or dies after the will was executed and before the testator, the devise fails unless (i) the devisee is a grandparent, a descendant of a grandparent, a stepchild, or a descendant of the stepchild of the testator and (ii) the devisee left descendants who survive the testator. Those descendants take by representation the property to which the devisee would have been entitled had the devisee survived the testator.
....
[¶75.] Despite the definition of “child” as excluding “grandchild” under the Uniform Probate Code (
[¶76.] Given the purpose and history of the statute, along with this state‘s strong public policy granting substantive rights to the parent-child relationship, it is
[¶77.] We should reverse and remand issue 3 for a determination of a fair and equitable share for Lance and his sisters, based on all factors, including a reasonable expectation of support “having reference to [their] age and condition” under
MEIERHENRY, Justice (concurring in part and dissenting in part).
[¶78.] I concur with the majority opinion except for issue 3. I agree with Justice Sabers’ analysis and would also hold that Lance and his two siblings are wrongful death beneficiaries under