No. 84-542
1 4 THE SUPREME COURT O THE STATE O M N A A
1 F F O T N
1985
I N THE MATTER O THE ESTATE OF
F
ETHEL E. EVANS, Deceased.
APPEAL FROM: D i s t r i c t Court of t h e Third J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e County o f P o w e l l ,
The H o n o r a b l e R o b e r t Boyd, J u d g e p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
Morrow, S e d i v y & B e n n e t t ; Lyman H. Bennett, 111,
Bozeman, Montana
F o r Respondent:
J o h n L. H o l l o w , H e l e n a , Montana
M.K. D a n i e l s , D e e r Lodge, Montana
Thomas R. S c o t t , D i l l o n , Montana
Submitted on B r i e f s : May 9 , 1985
Decided: J u l y 1 2 , 1985
Filed: 3111. !.: 1985
Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Co-personal representative, daughter of the decedent,
appeals from an order of the Third Judicial District, Powell
County, requiring distribution of the residuary estate in
equal one-eighth (1/8) shares to decedent's named grandchil-
dren. The order denied rej-mbursement for attorney fees and
costs incurred by appellant.
We affirm.
Appellant has asked this Court to consider two issues:
Does decedent's will require a distribution in
equal shares to all eight named grandchildren or an equal
distribution to the two branches of the residuary devisees?
2. Is appellant entitled to attorney fees and costs in
the District Court and on appeal in prosecuting this action
outside the probate?
Ethel E. Evans, a widow, duly executed her last will
and testament in Deer Lodge, Montana, on April 28, 1983. She
died November 25, 1983, at the age of eighty-six, survived by
two daughters, eight grandchildren, and a. number of great-
grandchildren. Her son, Charles Evans, predeceased her
without issue.
Her will was admitted to probate December 1, 1983, in
the District Court of the Third Judicia.1 District. Her two
daughters, Lois E. Geary of Deer Lodge, Montana, and Meryl
Kovatch of Hastings, Nebraska, were appointed co-personal
representatives with directions "to act without bond or other
security for the faithful performance of their duties."
Co-personal representatives hired the attorney who had
prepared the will to handle the probate of the estate. Upon
disagreement on distribution of the estate, Meryl Kovatch
filed a petition September 5, 1984, stating that she had
hired independent legal counsel. Her petition noted! her
disagreement with the other representative and "the attorney
of the estate" about the interpretation of the will. She
asked for an ord-er distributing the residuary estate one-half
to her two children and one-half to the six children of her
sister, Lois Geary. She also requested "reasonable attorney
fees from the estate in addition to any other attorney fees
that may he allowed in the probate of the estate."
Following extensive briefs, a hearing September 20,
1984, and subsequent memoranda, the court issued its order
October 25, 1984. The court concluded that the "language of
the will taken'as a whole" clearly and unambiguously required
distribution of the residuary estate in "one-eighth equal
shares to the named grandchildren" and that par01 evidence
was unnecessary. Further, the court found that petitioner
was acting on behalf of her children and not the estate and
therefore was not due attorney fees and costs.
- 1:
Issue No. - Distribution - Residuary Estate.
of In
Paragraph I, Mrs. Evans listed her heirs and their relation-
ship to her. She also stated that her only son had prede-
ceased her without issue. Paragraph I1 governed the
appointment of both her daughters as co-personal representa-
tives. Mrs. Evans disposed of her estate in Paragraph 111:
(1) specific d.evises of $10,000 each to her two named daugh-
ters with any taxes to come from the residuary estate; (2)
directions to sell real and personal property with a plan to
allow a fair chance for all her heirs to purchase; and ( 3 )
the residue of the estate to her grandchildren.
The provisions of the will under question follow:
"I.
"I am a widow. My son, Charles Evans
predeceased me, leaving no issue. My
surviving heirs are as follows: MY
daughter LOIS GEARY, Deer Lodge, Mon-
tana, who has the following children,
to-wit: RICHARD M. GEARY, Helena, Mon-
tana, JOYCE M. SCOTT, Grangeville,
Idaho, ROBERT E. GEARY, Helena, Montana,
ELAINE M. OLSEN, Helena, Montana, JOAN
C. SMITH, Missoula, Montana, and DANIEL
C. GEARY, Helmville, Montana; and my
daughter, MERLE [sic] A. KOVATCH,
Hastings, Nebraska, who has the follow-
ing child.ren, to-wit: THOMAS S.
KOVATCH, Missoula., Montana, and JAMES P.
KOVATCH, Hastings, Nebraska.
"I devise my estate as follows:
"To each of my daughters, LOIS E. GEARY
and MERLE [sic] A. KOVATCH, I give the
sum of Ten Thousand Dollars ($10,000).
Any death or inheritance tax to which
said devisees may be subject shall paid
from my residuary estate.
". . . [Provision on liquidation of
property.]
"All of the rest, residue and remainder
of my estate, real, personal and mixed,
of every nature, kind and description,
wherever situated and however held,
which is and may be subject to my testa-
mentary disposition at the time of my
- -
death, I give to grandchildren,
Richard M. Geary, Joyce - Scott, Robert
M.
- ~ e a r cElaine 5 Olson, - -C.
E. Joan
Smith, Daniel C . Geary, Thomas S.
Kovatch and James P. Kovatch, in e q u z
shares, per stirpesand - ~ e capita."
- not r
(Emphasis added.
Appellant contends that the language "per sti.rpes and
not per capita" requires a distribution according to the
"roots of inheritance" set out in Paragraph I, i.e., her
daughter Lois Geary who has six children and her daughter
Meryl Kovatch who has two children.
Respondent contends that the grandchildren were
specifically named as takers in the residuary provision and
not segregated into separate classes in the devise. Para-
graph I denotes the usual family history and not how the
grandchildren are to take under Paragraph 111. Since the
grandchildren are the primary legatees, "per stirpes" refers
to how their issue would take as substitute legatees should
one grandchild predecease the testatrix, respondent contends.
"Per stirpes" does not refer to the living ancestors, testa-
trix's daughters, who are not takers under this provision.
We hold that the testatrix clearly intended her grand-
children to take in their own right equally and not by right
of representation through their living parents.
The words "per stirpes" mean by the root or stock. The
phrase d-enotes a taking by right of representation of that
which an ancestor of the parties would take if living. Wood
v. Brown (Cal. 1946), 162 P.2d 859, 861. Persons who take
per stirpes do so in a representative capacity and, standing
in the place of a deceased ancestor, take only what he would
have taken had he lived. Makoff v. Makoff ( ~ t a h1974), 528
P.2d 797, 799; Gustafson v. Swenson (Mass. 1976), 347 N.E.2d
701, 703; In re Robins Estate (D. D.C. 1941), 38 F.Supp. 468,
471.
Ordinarily the words "per stirpes" are used to denote
substitution in case of the death of the primary legatee.
When descendants take by representation of their parents,
they are said to take "per stirpes," i.e., children take
among them the share which their parent would have taken if
living. Fidelity Union Trust Co. v. Farley (N.J. 1940), 13
A.2d 313, 315. "Per stirpes" is not applicable to named
legatees or legatees designated as a class, but rather to
their descendants by representation. The ordinary use of
"per stirpes" relates to the distribution of substantial
gifts to substituted legatees in case of death of the primary
legatee. Johnson v. Swann (Md. 1956), 126 A.2d 603, 606.
The intention of the testator should control the dispo-
sition and the intent should "be found from all parts of the
will ... construed in relation to each other ... to form
one consistent whole." In the Matter of the Estate of Erdahl
(Mont. 19811, 630 P.2d 230, 231, 38 St.Rep. 978, 980.
Appellant asks for a strained construction of the will
to determine intent of the testatrix. Mrs. Evans named her
grandchildren to take "in equal shares" the entire residuary
estate. She made limited equal specific devises to her
daughters as all they would take under her will. Her daugh-
ters were not named to take under the residuary provision,
and under Montana's antilapse provision would never take the
residuary estate under the will. Sections 72-2-512 and
72-2-513, MCA. She did not expressly provide that the grand-
children were to take by relationship to their mothers and
not in their own name.
The fact that the ancestors (here Mrs. Evans' daugh-
ters) are living shows that the beneficiaries are not to take
in their place and that they are referred to for the purpose
of designating the beneficiaries. People's National Bank of
Greenville v. Harrison (S.C. 1941), 18 S.E.2d 1, 6. When a
gift in a clause "in equal shares, share and share alike," to
twelve persons was designated by name and as descendants of
other persons, the court in Rhode Island held that this
required a division into twelve shares for distribution.
Naming the ancestors merely identified the legatees and did
not divide them into classes with the intention that each
class take one-third. Winsome v. Brown ( R . I . 1927), 136 A.
434, 436-437. Where beneficiaries take directly under a
devise, they take as individuals and not in their representa-
tive capacity and if the testator(rix) provides that it shall
be in equal proportions, then they take equally. Coppedge v.
Coppedge (N.C. 1951), 66 S.E.2d 777, 780.
Other jurisdictions have interpreted language similar
to the provision in Mrs. Evans' will. Where a will stated
"share and share alike, per stirpes, and not per capita," the
New Jersey court held that the distribution would go equally
to each niece in 1/8 shares and not 1/2 to three daughters
and 1/2 to the other five daughters on another branch.
Camden Safe Deposit & Trust Co. v. MacMullan (New Jersey
1933) , 165 A. 105, 106. The New York court interpreted
language, "and to the issue of such as may have died leaving
issue them surviving, per stirpes and not per capita," to
intend that the stirpital distribution should apply only to
the issue of any deceased devisees who themselves take as a
single class with equal shares. In re Title Guarantee &
Trust Co. (New York 1914), 144 N.Y.Supp. 889, 893, aff'd 106
N.E. 1043.
In a later case, the New York court interpreted "per
stirpes and not per capita" following a bequest to nieces and
nephews "share and share alike," as not relating back to the
immediate ancestors of the nieces and nephews for distribu-
tion. Rather, it does not go back past the class that are
the legatees. In re Ives' Estate (New York 1936), 291
N.Y.Supp. 981, 983.
Mrs. Evans' will, taken as a whole, showed fairness and
equality. She treated her daughters equally in the specific
devises, although one lived close by, the other in Nebraska.
She appointed both daughters to administer the estate
co-equally, without bond. In providing a method by which her
descendants could purchase her real and personal property
without unnecessary wrangling, at an appraised price, she
determined priority of choice would "be according to age in
case the same items if [sic] desired by two or more of my
heirs." She showed no preference for "stock," "stirp," or
branches of devisees.
Finally, she named each of her grandchildren, without
separating into categories, to take "in equal shares." There
is no indication in the provision or the will in its entirety
of intention to favor the less prolific stock. "Intention of
the testator controls." Section 72-2-501, MCA. The attorney
who drafted the will in representing the estate supports the
position that it was Mrs. Evans' intention to devise the
residue to all eight grandchildren equally.
Mrs. Evans named her heirs in order to identify the
devisees. She did not divide them into classes. Taking
directly under the devise, the grandchildren take as individ-
uals and not in their representative capacity. Their issue,
Mrs. Evans' great-grandchildren, would have taken "per stir-
pes" (in a representative capacity) should a grandchild have
predeceased testatrix. Mrs. Evans' daughters are. living, are
not named devisees under the residuary provision, and are not
intended "stirp" for purposes of determining distribution.
The grandchildren are not taking wh.at their mothers are
entitled to, but what they in their own names are to take "in
equal shares" under the wil.1. The District Court correctly
interpreted the will to apportion eight equa 1 individual
shares to Mrs. Evans' grandchildren.
Issue - - 2:
No. Attorney - - costs - - District
fees and. in the
Court and on appeal.
--7
Meryl Kovatch as a co-personal repre-
sentative was a fiduciary of the estate with the duty to
settle and distribute the estate according to the terms of
the will and the code in the best interests of the estate and
of the successors to the estate. Section 72-3-610, MCA. By
admission in her petition, she sought independent legal
counsel to propose an interpretation contrary to that pro-
pounded by the attorney for the estate who had also drafted
the will.
Appellant contends that she was a duly nominated per-
sonal representative who prosecuted this proceeding in good
faith and thus is entitled to costs and attorney fees in the
District Court and on appeal pursuant to 5 72-3-632, MCA. We
disagree. Where there are two or more appointed
co-representatives, concurrence is required on all acts
connected with the administration and distribution of the
estate. Section 72-3-622, MCA. Without the concurrence,
Mrs. Kovatch was not acting on behalf of the estate. She
undertook this cause to benefit some of the successors at the
expense of others. She compromised her duty to settle and
distribute the estate expeditiously and efficiently pursuant
to her fiduciary duties of 5 72-3-610, MCA, and thwarted the
purpose of the code to promote efficiency in liquidation and
distribution. Section 72-1-102, MCA. "[Als a matter of
public policy, it would be unwise to allow the funding of:
litigation out of an estate residue." In the Matter of the
Estate of Dygert (1976), 170 Mont. 31, 33, 550 P.2d 393, 394.
Finally she is not a "party aggrieved" within Rule 1,
M.R.App.Civ.P., for purposes of this appeal. While a person-
al representative may request the District Court to interpret
the will under 5 72-3-605, MCA, Mrs. Kovatch has no standing
to appeal the resulting court order. Because she is not a
residuary devisee, she has no interest adversely affected by
the order.
We hold that the court properly interpreted the provi-
sion in testatrix's will devising the residuary estate in
equal shares to her eight named grandchildren. We hold that
appellant did not prosecute this action in good faith a.s a
fiduciary of the estate and its successors, and thus the
court properly denied attorney fees a.nd costs.
Affirmed.
We concur:
Justices
Mr. J u s t i c e F r e d J . Weber d i s s e n t s a s f o l l o w s :
I n substance t h e m a j o r i t y concludes t h a t it i s f a i r t o
d i s t r i b u t e t h e property equally t o a l l e i g h t grandchildren so
t h a t no g r a n d c h i l d o b t a i n s a g r e a t e r s h a r e t h a n a n y o t h e r .
T h a t i s an a t t r a c t i v e a n a l y s i s . However, it does n o t a d d r e s s
directly the contradictions in language contained in the
will.
I n p e r t i n e n t p a r t , t h e w i l l provides:
" A l l of t h e r e s t , r e s i d u e and r e m a i n d e r
o f my e s t a t e ... I g i v e t o my g r a n d -
children, R i c h a r d M. G e a r y , J o y c e M.
S c o t t , R o b e r t T. G e a r y , E l a i n e M. O l s e n ,
J o a n C . S m i t h , D a n i e l C . G e a r y , Thomas S.
Kovatch and James P. Kovatch, i n e q u a l
s h a r e s , p e r s t i r p e s and n o t p e r c a p i t a . "
The m a j o r i t y c o n c l u d e s t h a t t h i s p r o v i s i o n i n d i c a t e s a c l e a r
i n t e n t t h a t t h e g r a n d c h i l d r e n t a k e i n t h e i r own r i g h t and n o t
by any r e p r e s e n t a t i o n t h r o u g h t h e i r l i v i n g p a r e n t s , who a r e
t h e d a u g h t e r s of t h e deceased. I do n o t b e l i e v e t h a t conclu-
s i o n can h e drawn from t h e w o r d i n g i t s e l f .
The majority does not discuss the definition of the
words " p e r c a p i t a . " 4 W. Bowe and D . P a r k e r , Page on t h e Law
of
-Wills § 36.6, a t 556 s t a t e s :
"A d i s t r i b u t i o n p e r c a p i t a i s an e q u a l
d i v i s i o n of t h e property t o be divided
among t h e b e n e f i c i a r i e s , e a c h r e c e i v i n g
t h e same s h a r e a s e a c h o f t h e o t h e r s ,
w i t h o u t r e f e r e n c e t o t h e immediate c o u r s e
o f d e s c e n t from t h e a n c e s t o r . A distri-
bution per capita i s an equal division
among t h e b e n e f i c i a r i e s , e a c h r e c e i v i n g
t h e same s h a r e a s t h e o t h e r s . "
I t i s important t o note t h a t a d i s t r i b u t i o n "per c a p i t a " i s
an e q u a l d i v i s i o n among t h e named p a r t i e s . As a result the
words " n o t p e r c a p i t a " a s used i n t h e w i l l c l e a r l y i n d i c a t e s
t h a t t h e d e v i s e i s - t o be i n e q u a l s h a r e s t o a l l e i g h t
not
grandchildren.
The w i l l p r o v i s i o n s t a t e s t h a t t h e t e s t a t r i x g i v e s t h e
property i n equal shares, per s t i r p e s . Under t h e d e f i n i t i o n
of per stirpes contained in the majority opinion, that is the
same as stating that she gives to her grandchildren, with
one-half in equal shares to the children of her daughter
Lois, and the remaining one-half in equal shares to the
children of her daughter Meryl. That interpretation is
consistent with the words "not per capita," which in sub-
stance means that the property is not to go in equal shares
t o all eight grandchildren.
.
My conclusion is that t h ~
quoted will provision provides
a per stirpes distribution under which one-half would go to
six of the children, equally, and the remaining one-half
would go to two of the children, equally.
Considering the other provisions of the will as well, I
conclude that the quoted clause is contradictory or at least
ambiguous, and that additional evidence should be obtained to
determine the intent of the testatrix. I would remand the
cause to the District Court for further proceedings to estab-
lish such intent.
I concur'in the foregoing diss f Mr. Justice Weber: