## Facts

- Dellephine Burns executed a will in 1949 naming her sisters Clara Davison, Fannie Wells, and Ida Hust as equal residuary beneficiaries, with a direction that if any died, the residue would be divided equally among the “survivors.”
- All three sisters predeceased Burns: Hust and Davison left no lineal descendants; Wells left five lineal descendants.
- Probate proceedings sought construction of (1) the residuary clause and application of the anti-lapse statute, (2) a stock bequest covering shares owned at death, including shares acquired after execution by purchase and by stock dividends, and (3) allocation of federal estate taxes.
- The county court and circuit court concluded the residuary gift failed and passed by intestacy to Burns’s heirs at law; they also charged federal estate taxes to the residuary estate.
- The circuit court construed the stock bequest to include all relevant shares held at death; Wells’s descendants appealed.

## Issues

1. Whether the anti-lapse statute preserved any part of the residuary gift for the lineal descendants of a predeceased sister-beneficiary.
2. How to construe the residuary clause’s direction that the residue be divided among the “survivors” if any named beneficiary died, when none survived the testator.
3. Whether a stock bequest included shares acquired after execution of the will, including stock dividends.
4. Whether federal estate taxes should be apportioned among all assets or charged solely to the residuary estate.

## Decision

- Affirmed that the anti-lapse statute did not apply to the residuary clause under these facts.
- Held the survivorship language made survival to the testator’s death a condition of taking; because none survived, the residuary clause failed and the residue passed by intestacy to the heirs at law.
- Affirmed the construction of the stock bequest to include after-acquired shares and stock dividends held at death (consistent with the circuit court’s determination and directions on remand).
- Affirmed charging the federal estate tax to the residuary estate rather than apportioning it across all assets.

## Legal Principles

- An anti-lapse statute yields to a will’s contrary intent; express survivorship language conditioning a gift on survival can prevent substitution in favor of a deceased beneficiary’s descendants.
- A residuary clause directing redistribution to “survivors” can fail entirely if no named beneficiary survives the testator, causing intestacy as to the residue.
- A stock bequest may be construed to include shares acquired after execution, including stock dividends, when the testamentary language and context indicate an intent to dispose of the testator’s holdings at death.
- Absent a contrary testamentary direction or controlling law, federal estate taxes are properly charged to the residuary estate.

## Conclusion

The court enforced the will’s survivorship condition, declined to apply anti-lapse to save the residuary gift for a deceased sister’s descendants, treated the residue as intestate property, construed the stock bequest to cover after-acquired shares and stock dividends, and allocated federal estate taxes to the residuary estate.


In re Estate of Burns, 78 S.D. 223, 100 N.W.2d 399 (S.D. 1960)