In Re Estate of Howe

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*37ment motion, or notice that a hearing would be held on the motion. Moreover, while Hill-Rom filed a brief in support of its summary judgment motion, the estate, controlled by Michael as the appointed Personal Representative, failed to file a brief in opposition to it on behalf of Lance and his siblings. Furthermore, after the trial court granted Hill-Rom’s summary judgment motion, neither Lance nor his siblings were given any notice of same. By preventing Lance and his sisters any opportunity to be heard, Michael breached his fiduciary duty towards them as wrongful death heirs to Edna Howe’s estate.

[¶ 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 SDCL 21-5-5 makes children beneficiaries in a wrongful death action only if they survive the decedent. Through this interpretation, children of a predeceased child would not be beneficiaries. In affirming the trial court’s interpretation of SDCL 21-5-5, the majority opinion glosses over the purpose and history of the wrongful death statute, and instead grounds its rationale in its determination that the language of the statute is unambiguous and should be interpreted according to its plain meaning. We should not be so quick to ignore the reasons the wrongful death statute was enacted.

[¶ 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 isstte. [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 SDCL 21-5-5, and the pertinent part of this wrongful death statute has not changed since 1909. Given this history, it is clear that this statute was not intended to limit recovery in a wrongful death action by excluding lineal descendants.

[¶ 72.] It is significant to note that the statute does not say “wife or husband and surviving children.” It says “wife or hus*38band and children.” Had the legislature intended to say surviving children, it could easily have done so. See SDCL 21-5-5; see also Argo Oil Corp. v. Lathrop, 76 S.D. 70, 74, 72 N.W.2d 431, 434 (1955) (stating that “[t]he intention of the Legislature is to be ascertained primarily from the language used in the statute, with the aid of the canons of construction”). However, it did not. The logical interpretation of this statute is that it is for the benefit of the wife or husband and children, which includes children of deceased children. Therefore, when a child predeceases the decedent, the children of that predeceased child, as lineal descendants, become beneficiaries in his place.

[¶ 73.] In addition to the purpose and history of the statute, public policy controls the definition of children in SDCL 21-5-5; ie., South Dakota’s public policy regarding children as heirs of their parents’ estate. SDCL 29A-2-302 provides that:

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;
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SDCL 29A-2-103. Furthermore, SDCL 29A-2-603(a) addresses the situation where an individual named in a will dies before the testator:

(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 devi-see survived the testator.
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SDCL 29A-2-603(a). Given the importance that these statutes place on a child’s right to take under their deceased parents’ estates, it is clear that the public policy in South Dakota should control the definition of children in the wrongful death statute. Therefore, this established public policy requires the conclusion that when a child predeceases the decedent, the children of that predeceased child, as lineal descendants, become beneficiaries in his place.

[¶ 75.] Despite the definition of “child” as excluding “grandchild” under the Uniform Probate Code (§ 29A-1-201(6)) the public policy of this state is to require a parent to intentionally omit a child or issue of a deceased child. Therefore, the children or issue of a deceased child (a grandchild) should not be excluded without expressed intent when death is by accident. In other words, since one must intentionally omit a child or the issue of a deceased child when making a will, public policy does not permit an unintentional omission in the case of property passing without a will.

[¶ 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 *39clear that Lance and his two siblings are wrongful death beneficiaries under SDCL 21-5-5.

[¶ 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 support5 “having reference to [their] age and condition” under SDCL 21-5-8.

. Although a reasonable expectation of support is only one factor in determining a fair and equitable share, it is significant here because, for the most part, none of the heirs had any expectation of support because Edna had no money or property prior to her injury causing her death. All she had was a chose in action, a disputed tort claim. Prior to that point, neither Michael, Randolph, Lance nor his sisters had any significant expectation of support from their mother/grandmother.