(dissenting).
[¶ 45.] The plain language of SDCL 29A-2-101 mandates that words of disinheritance in a will apply to the testator’s property passing by intestate succession. The majority opinion results in distribution of Jetter’s estate to his intestate heirs which does not give this statute or the will their intended effect.
[¶ 46.] A reason exists why the Jetter heirs could not find any eases in three hundred years where an escheat was allowed when heirs existed. Before the Uniform Probate Code was adopted, no testator could disinherit heirs by will if his estate passed intestate. The Court should presume that the legislature enacted SDCL 29A-2-101 to change existing law. Delano v. Petteys, 520 N.W.2d 606, 609 (S.D.1994); John Morrell & Co. v. Dept. of Labor, 460 N.W.2d 141 (S.D.1990); Rosander v. Bd. of Cty. Comm’rs., 336 N.W.2d 160 (S.D.1983). Today, SDCL 29A-2-101 does allow a testator to disinherit an individual or a class in a will, and therefore, may result in an escheat to the state if all heirs are disinherited by that will.
[¶ 47.] Finding the disinheriting clause ineffective or the will ambiguous is stretching the facts to obtain the desired result. “All the 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 Bock, 85 S.D. 113, 115, 177 *35N.W.2d 734, 735 (1970). “To hold otherwise would convict a testator of performing a useless act.” Id. The circuit court concluded and the majority agrees that “the plain language of the will indicates that Jetter intended to disinherit his other heirs if Martin was alive, but there is no indication that he intended to disinherit them if Martin predeceased him.” This intent alleged by the Court could not be obtained by reading this will. There was no need for Jetter to include a disinheriting clause in his will if Martin, the sole devisee, was still alive because Martin would have taken all of Jetter’s estate and these heirs would not be considered preter-mitted heirs. The disinheriting clause is only effective in the present situation — - where Martin predeceases Jetter and the estate passes intestate. The trial court and this Court’s holding gives this disinheriting clause no effect, rendering it a useless act by Jetter.
[¶ 48.] Examination of the next provision in Jetter’s will further supports the conclusion that he intended for the disinheriting clause to apply if Martin predeceased him. “It is axiomatic that in gathering the intention of the testator a will must be considered as a whole.” In re Barrett’s Estate, 70 S.D. 475, 478, 18 N.W.2d 787, 789 (1945). The fourth provision of the will not only names Martin as executor of Jetter’s will, but also provides for an alternate executor should Martin predecease Jetter. Clearly, Jetter had this contingency in mind when he drafted his will, and intended that the disinheriting clause would come into effect if Martin predeceased him.
[¶ 49.] As the majority stated, the purpose of a will is to avoid the State’s estate plan and to create your own. Jetter drew up a will to ensure that his heirs would not take any of his estate which they would be entitled to if he had not drafted a will. The clause in Jetter’s will unambiguously states that he disinherits all persons who would be entitled to his estate if he died intestate. Because his brother predeceased him, the Court holds that Jetter’s estate passes intestate under the anti-lapse rules. The disinheritance clause was included in the will to prevent the exact result from happening.
[¶ 50.] The majority finds Jetter’s will ambiguous partly because he did not specifically name the state as a subsequent taker in the event his brother predeceased him. Jetter should not have to specifically name the state as subsequent taker. By drafting his will leaving everything to Martin without naming a subsequent taker and including a clause disinheriting all his heirs, Jetter should have been able to accomplish the same result: escheat to the state. This Court’s finding that Jetter’s will is ambiguous for not naming the state as a devisee has the effect of passing his estate to his intestate heirs whom he unambiguously disinherited in his will.
[¶ 51.] Even if the will were ambiguous, that should not change the result. When an ambiguity exists, the court determines the intent of the testator based on extrinsic evidence. The extrinsic evidence clearly shows that Jetter did not want his heirs to have a thing, but this Court ignored that evidence and constructed a way to give Jetter’s estate to his intestate heirs.
[¶ 52.] Applying SDCL 29A-2-604, the anti-lapse statute, is not appropriate in Jet-ter’s estate because contrary intent exists.16 Even though the majority finds the will ambiguous, the extrinsic evidence explicitly shows Jetter’s intent to prevent his heirs from taking by intestacy. Therefore, the Court should not distribute his estate according to the anti-lapse statute.
[¶ 53.] It is well settled in this state that:
A testator has the privilege and right to dispose of hi's property as he chooses within limits and in the manner fixed by statute. The law does not require that he recognize his relatives equally or at all.
In re Estate of Burk, 468 N.W.2d 407, 412 (S.D.1991); In re Estate of Borsch, 353 N.W.2d 346, 349 (S.D.1984). This privilege and right has never been conditioned to only be available to a testator when disposition of his or her property does not result in an escheat. See Nelson v. State, 59 S.D. 410, *36410, 240 N.W. 345, 345 (1932) (“It has always been the law of this state that on failure of title from defect of heirs the property of a decedent should escheat to the state.”)
[¶ 54.] The disinheriting provision in Jet-ter’s will excluded all other heirs from taking under the will and the estate passes as if those persons “had disclaimed their intestate shares.” Because all of Jetter’s heirs have been excluded, no heirs can be found, and under SDCL 29A-2-105 “Jetter’s estate passes to the State of South Dakota as provided in SDCL 29A-3-914.”17
[¶ 55.] Clearly, Robert Jetter did not want any of his heirs besides his brother Martin to receive any of his estate. Robert Jetter would turn in his grave if he knew that his estate was being distributed to the very people he specifically and intentionally disinherited in his will. The majority and the trial court both reached a holding that replaced Jetter’s last wishes with their own.
[¶ 56.] Therefore, I dissent, and would reverse the circuit court’s ruling.
. SDCL 29A-2-601 provides the scope of application of the rules in Part 6 of Chapter 29A-2. This statute instructs “in absence of a contrary intention, the rules of construction in this Part control the construction of a will.''
. SDCL 29A-3-914 provides, in pertinent part:
If an heir, devisee, or claimant cannot be found, the personal representative shall distribute the share of the missing person to the person's conservator, if any, otherwise the court shall enter an order directing that the share vest in the state of South Dakota for the support of the common schools.