No. 80-339
IN THE SUPREW3 COURT OF THE STATE OF MONTANA
1981
IN THE MATTER OF THE ESTATE OF
INGA ERDAHL, Deceased.
Appeal from: District Court of the Fifteenth Judicial District,
In and for the County of Roosevelt.
Honorable M. James Sorte, Judge presiding.
Counsel of Record:
For Appellant:
Graybill, Ostrem, Warner and Crotty, Great Falls, Montana
For Respondent:
Gallagher, Archambeault and Knierim, Glasgow, Montana
Submitted on briefs: April 8, 1981
Filed:
JUft 2 1) is31
Mr. J u s t i c e Gene B . D a l y d e l i v e r e d t h e O p i n i o n o f t h e C o u r t .
This is an appeal from a holding by the ~ i s t r i c t
Court t h a t Alvin Erdahl, hereinafter appellant, failed to
e x e r c i s e a n o p t i o n " t o t a k e " c o n t a i n e d i n t h e L a s t W i l l and
Testament of h i s mother, Inga Erdahl.
Inga Erdahl died on September 21, 1975, and is
s u r v i v e d by e i g h t c h i l d r e n i n c l u d i n g appellant. Her Last
W i l l and T e s t a m e n t , d a t e d November 6 , 1 9 6 8 , was p r e p a r e d by
and r e m a i n e d i n t h e p o s s e s s i o n of a t t o r n e y J e r r y Wallender
of Froid, Montana. The w i l l named appellant a s personal
representative. On A p r i l 2 4 , 1 9 7 8 , a p p e l l a n t f i l e d t h e w i l l
with the District Court along with his application for
informal probate. On May 3 , 1 9 7 8 , t h e d e c e d e n t ' s w i l l was
admitted t o probate in informal proceedings; however, the
t e s t a c y s t a t u s o f t h e d e c e d e n t was n o t d e t e r m i n e d u n t i l May
6, 1978. On November 2 1 , 1 9 7 8 , a p p e l l a n t was r e p l a c e d a s
p e r s o n a l r e p r e s e n t a t i v e by h i s y o u n g e r b r o t h e r , I n g m a r .
The w i l l c o n t a i n e d t h e f o l l o w i n g p a r a g r a p h s which a r e
t h e s u b j e c t of t h i s l i t i g a t i o n :
"FIFTH: I h e r e b y g i v e , d e v i s e and b e q u e a t h
all of my property not hereinbefore
m e n t i o n e d , b o t h r e a l and p e r s o n a l , o f e v e r y
n a t u r e and w h e r e v e r s i t u a t e , o f w h i c h I may
d i e s e i z e d o r p o s s e s s e d , t o s u c h o f my
children a s s h a l l survive me, i n equal p a r t s ,
... s u b j e c t , however, t o t h e p r o v i s i o n s o f
paragraph Six ( 6 ) .
"SIXTH: I h e r e b y g i v e my s o n , A l v i n 0 .
E r d a h l , i f h e s u r v i v e s me, t h e o p t i o n t o t a k e
a l l f a r m r e a l p r o p e r t y o f which I may d i e
s e i z e d o r p o s s e s s e d and t h e r e s i d e n t i a l
property described a s .. . a l l said property
h a v i n g been d e v i s e d and b e q u e a t h e d h e r e t o f o r
i n p a r a g r a p h F i v e ( 5 ) a t a v a l u e o f Twenty-
t h r e e T h o u s a n d F i v e H u n d r e d a n d No/100
D o l l a r s ( $ 2 3 , 5 0 0 . 0 0 ) and t o d i s t r i b u t e s a i d
payments i n a c c o r da n c e w i t h t h e p r o v i s i o n s of
p a r a g r a p h F i v e ( 5 ) h e r e i n , and i n c a s e my
s o n , A l v i n 0. E r d a h l , d o e s n o t e l e c t t o
e x e r c i s e h i s o p t i o n , t h e n s u c h o p t i o n may be
exercised by my other children surviving me,
according to priority of age, with
distribution of payment therefor to be made
according to the provisions of paragraph Five
(5) herein. The option hereby expressed, in
any event, to be exercised within two years
of the date of my death."
Since 1946 appellant has been in possession of and
has farmed the property described in paragraph six on a
crop-share basis wherein the crops and expenses were shared
equally between appellant and his mother. After his
mother's death, appellant continued in possession up to and
including the date of the hearing on this matter.
It was not until 1978 that appellant tendered payment
of the purchase price of $23,500. On October 27, 1978,
appellant caused to be deposited in the estate account the
sum of $8,000, and on December 11, 1978, he forwarded a
check in the amount of $15,500 to the personal
representative's attorney, Francis Gallagher. However, on
December 15, 1978, the personal representative remitted an
$8,000 estate check to appellant and the $15,500 check was
subsequently returned to appellant by Gallagher. At this
time, the $8,000 estate check is in appellant's possession
and remains uncashed.
We are asked to decide whether the option to take was
exercised within the designated two-year period.
Appellant argues that by taking and treating the land
and crops as his own and residing in the dwelling, he has
exercised the option and, therefore, the property is
rightfully his under the will. Also, upon inquiring into
the exercise of the option, appellant was advised by the
attorney who prepared the will, J. B. Wallender, that
accepting the crop and treating the land as his own was
sufficient to indicate an acceptance of the option.
A p p e l l a n t c o n t e n d s t h e o p t i o n i s e x e r c i s a b l e by t a k i n g , n o t
making payments, and his actions served as constructive
legal notice t o the other d e v i s e e s of h i s exercise of the
option.
Respondent, on the other hand, contends that
a p p e l l a n t d i d n o t e x e r c i s e t h e o p t i o n g i v e n him u n d e r the
p r o v i s i o n s of h i s m o t h e r ' s w i l l . As compared t o t h e t i m e
before h i s mother's death, t h e r e was no c h a n g e i n t h e way
a p p e l l a n t handled t h e premises a f t e r her death. Paragraph
s i x o f t h e w i l l r e q u i r e s payment o f t h e o p t i o n p r i c e d u r i n g
t h e two-year l i f e of the option. T h i s was n o t d o n e , and,
t h e r e f o r e , t h e o p t i o n was n o t p r o p e r l y e x e r c i s e d .
I t is w e l l s e t t l e d t h a t t h e i n t e n t i o n o f a testator,
a s expressed i n h i s w i l l , c o n t r o l s t h e l e g a l e f f e c t of h i s
disposition. Section 72-2-501, MCA; State, Fish & Game
Comm'n v . Keller, Etc. ( 1 9 7 7 ) , 1 7 3 Mont. 523, 568 P.2d 166.
The i n t e n t o f t h e t e s t a t o r must be f o u n d from a l l p a r t s o f
t h e w i l l which a r e t o be c o n s t r u e d i n r e l a t i o n t o e a c h o t h e r
so as, if possible, t o form o n e c o n s i s t e n t w h o l e . In Re
Spriggs' Estate (1924), 70 Mont. 272, 225 P. 617. The
i n t e n t i o n o f t h e t e s t a t o r is a l s o t o b e a s c e r t a i n e d f r o m t h e
w o r d s o f a w i l l which a r e t o be t a k e n i n t h e i r o r d i n a r y and
grammatical sense, u n l e s s a c l e a r i n t e n t i o n t o u s e them i n
another sense can be collected and that other can be
ascertained. Section 72-11-302, MCA; In Re Humes E s t a t e
( 1 9 5 4 ) , 1 2 8 Mont. 223, 272 P.2d 999.
Upon r e v i e w o f t h e e n t i r e r e c o r d and c o n s t r u c t i o n o f
the will as a whole, the actions of appellant are
i n s u f f i c i e n t t o c o n s t i t u t e an e x e r c i s e of t h e o p t i o n c r e a t e d
in paragraph six.
The operative words of the will are: "I hereby give
my son . . . the option to take all . . . property . . . at
a value of $23,500 and to distribute said payments in
accordance with paragraph five. The option hereby
expressed, in any event, to be exercised within two years of
the date of my death."
In the ordinary grammatical sense, the words "to
take" mean to lay hold of, seize, deprive one of possession,
or to assume ownership. Driver v. Driver (1933), 187 Ark.
875, 63 S.W.2d 274; City of Durham v. Wright (1925), 190
N.C. 568, 130 S.E. 161. Were these words found alone in the
will, we would have no problem determining appellant's
actions of possession and farming sufficient to constitute
an exercise of the option.
The words "to take," however, are not found in
isolation; they are followed by "at a value of $23,500.00
and to distribute said payments in accordance with paragraph
five. The option to be exercised within two years of the
date of my death." Section 72-11-303, MCA, mandates that
words of a will are to receive an interpretation which will
give to every expression some effect, rather than one which
will render any of the expressions inoperative. Adherence
to appellant's contentions would render the above portion of
the will meaningless and be in abrogation of section
72-11-303, MCA; this we will not do.
If the will had simply given the property to
appellant he would, of course, upon acceptance have acquired
a fee simple title thereto subject to the charge. Here,
however, appellant had a right to refuse to take, and the
f e e s i m p l e t i t l e c o u l d n o t v e s t u n t i l h i s d e c i s i o n on t h a t
point was made. As s t a t e d by C h i e f J u s t i c e Marshall in
U n i t e d S t a t e s v . Grundy and T h o r n b u r g h ( 1 8 0 6 ) , 3 C r a n c h 3 3 7 ,
3 5 2 , 2 L.Ed. 459: " I t seems t o b e o f the very nature of a
r i g h t t o e l e c t o n e o f two t h i n g s , t h a t a c t u a l ownership is
n o t a c q u i r e d i n e i t h e r , u n t i l it b e e l e c t e d . "
The court in In Re Champion's Estate (1890), 15
N.Y.S. 768, 769, held t h a t an o p t i o n t o purchase is n o t a
"devise" but rather a "beneficial right or privilege" and
t h a t t o become t h e owner o f t h e p r o p e r t y , i t was n e c e s s a r y
f o r t h e h o l d e r of t h e p r i v i l e g e t o t a k e a deed f o r it from
t h e e x e c u t o r s and h i s t i t l e t o t h e p r o p e r t y would b e by d e e d
and n o t by t h e w i l l .
The t e s t a t r i x 1 . s i n t e n t i o n , a s e x p r e s s e d by t h e w i l l ,
r e q u i r e d a p p e l l a n t t o e x e r c i s e h i s o p t i o n b y making payment
i n t h e amount o f $ 2 3 , 5 0 0 w i t h i n two y e a r s o f t h e d a t e o f h i s
mother's death. A p p e l l a n t d i d n o t t e n d e r payment u n t i l more
than three years a f t e r h i s mother's death. He t h u s f a i l e d
t o adequately exercise h i s option.
The judgment o f t h e D i s t r i c t C o u r t _ i s a f f i r m e d .
L
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I
Justice /
W concur:
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