Matter of Estate of Flasted

No. 86-440
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987

IN THE MATTER OF THE ESTATE OF
MERLE K. FLASTED, Deceased.

APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Carter,
The Honorable A. B. Martin, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Huntley & Eakin; Gene Huntley argued for Roberta
Flasted, Baker, Montana
For Respondent:
Peterson, Schofield & Leckie; K. D. Peterson argued
for Everett Flasted, Billings, Montana
Dorsey & Whitney; Richard A. Brekke argued for Estate
and Personal Representative, Billings, Montana

Submitted: June 4, 1987
Decided: August 17, 1987

Filed: AUG 17 198%

Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.

Everette Flasted appeals a Carter County District Court
order insofar as that order awards certain assets from the
estate of his late brother, Merle Flasted, to Merle's widow,
Roberta. Roberta cross-appeals raising four issues. The
issues on appeal are: (1) whether the lower court properly
ruled that Merle's will's bequest to Roberta of "any cash and
savings that I may have at the time of my death" included (a)
a $150,000 promissory note and the mortgage securing that
note; (b) a diamond ring; (c) the partnership interest in
Nuclear Ltd. and shares of corporate stock; (2) whether the
court properly ruled that the "cash and savings" clause did
not include decedent's patronage and capital credits in
certain cooperatives; (3) whether the court erred in
refusing to award the homestead allowance and exempt property
to Roberta; (4) whether the court erred in denying Roberta's
motion for judgment on the pleadings; (5) whether the court
erred in relying upon parole evidence in construing an
agreement between Everette and Roberta. We affirm.
We set forth only those facts necessary to the resolu-
tion of this appeal. In December 1974, Merle Flasted execut-
ed the will which gives rise to this dispute. That will
provided, in pertinent part:
[I] give to [my wife, Roberta Flasted,]
any cash and savings that I may have at
the time of my death. I also give to my
wife one hundred head of cows from the
herd that I own on my death.
I also provide that .. . she may
stay on the home at the ranch for a
period of three (3) years after my death
and may keep the . . . one hundred head
of cows for that three year period on the
ranch ...
 I give, devise and bequeath to my
brother, Everett Flasted, all the rest,
residue and remainder of my estate,
including but not limited to my ranch and
any remaining livestock not previously
bequeathed, and machinery.
I hereby nominate and appoint my
brother, Everett Flasted, as executor of
this my Last Will and Testament . . .
At the time of executing his will, Merle consulted with an
attorney who made notes reflecting Merle's testamentary
wishes. The District Court summarized those notes as:
[Merle] did not want the ranch to go to
his wife or her family but wanted the
ranch to stay in his family and go to his
brother. He wanted his wife [and another
devisee] to each receive 100 head of
COWS. All remaining livestock and
machinery was to go to Everett.
He stated that 100 cows and savings
would take care of his wife. [The
attorney's] notes identify the savings as
$40-50,000 in a joint account.
In May 1983, Merle died and, upon her discovery of
Merle's will, Roberta arranged for she and Everette to meet
with Gene Huntley, a Baker, Montana, attorney who had
previously represented Merle. The stated purpose of the trip
was to "read the will." While traveling to meet with Mr.
Huntley, Roberta and Everette discussed the fact that under
the will she was to receive 100 cows. Merle did not have 100
cows at the time of his death so Everette suggested that
Roberta receive an equivalent value of sheep.
Upon meeting with Mr. Huntley on May 19, 1983, discus-
sions were held relevant to the estate's assets. Mr. Huntley
advised Roberta several times that she could contest the
will. Ultimately, Mr. Huntley drafted an agreement which
both Everette and Roberta signed. The agreement provided in
part:
 [Rloberta Flasted was devised the cash
and savings of the decedent . . . now
Roberta Flasted has rights to the proper-
ty of the estate by reason of being the
widow of Merle . . . the parties desire
to adjust their rights to reflect what
they would believe would be the desires
of the decedent. Now, Therefore, it is
hereby agreed ...
Roberta will receive about 900 head of
ewes, . . . the wool crop for the years
1982 and 1983 ... the right to live in
. . ..
.
the home on the ranch for the rest
of her natural life . all of the
- - -
vehicles belonging - - decedent at the
to the
time of his death except the pickup truck
which was used for the ranch operation.
Everett will receive . . . the rest,
residue and remainder of the decedent's
estate, except the portion here agreed to
go to Roberta . .. In consideration of
the foregoing Roberta Flasted gives - up
all - - rights to claim any share of
- of her
- decedent's the a G other and that part
the
and savings of
est
decedent
than the cash
of his estate specified in this agree-
ment. Everett Flasted agrees to give up
his claims to any part of the estate
herein agreed to be conveyed to Roberta.
(Emphasis added.)
Shortly after Merle's death, Roberta received approxi-
mately $209,000 from checking accounts, certificates of
deposit, savings certificates and stock which she had previ-
ously held in joint tenancy with Merle. The District Court
appointed Everette personal representative of the estate
after his June 1983 application and admitted Merle's will to
informal probate. In May 1984, Roberta moved the court to
grant her the homestead and family allowances provided for at
5 72-2-801, and -803, MCA. In August 1984, the court denied
Roberta both the homestead and family allowance on the basis
that she had waived the same in the May 1983 agreement. At
that time, the court also granted Roberta's motion for
supervised administration of the estate. Roberta moved under
Rule 59 (g), M.R.Civ.P., for the court to reconsider its
denial of the homestead and family allowances. The court
took no action on that motion.
In April 1986, the Carter County District Court held a
bench trial to resolve the issues relative to the construc-
tion of the will and the May 1983 agreement. Roberta again
asserted her right to the homestead allowance and, for the
first time, claimed exempt property under 5 72-2-802, MCA.
She did not pursue her claim for the family allowance. The
court admitted parol evidence relative to the parties' intent
as to the agreement.
In July 1986, the court entered its findings and con-
clusions ruling that (1) as "cash and savings" under the
will and agreement, Roberta would receive a $150,000 promis-
sory note and mortgage, a diamond ring, stock shares and a
partnership interest; (2) under that same clause, Roberta
would not receive patronage and cooperative credits in Range
Telephone, Southeast Electric and Farmer's Cooperative;
(3) Roberta could not successfully claim the homestead
allowance because she had failed to timely appeal the court's
earlier adverse ruling on that issue; (4) under the May 1983
agreement, Roberta waived her rights to the homestead allow-
ance and exempt property; and (5) Roberta would receive a car
(but not ranch machinery, a snowmobile or an airplane) under
the agreement clause which provided her with all of Merle's
vehicles except a pickup. The court relied on parol evidence
as a basis for its fifth ruling immediately above. This
appeal followed.
The first issue is the court's interpretation of what
constitutes "cash and savings" under the agreement and the
will. The court found, and we agree, that "the words 'cash
and savings1 used in the agreement did not alter the will and
should be construed - - context - their meaning - -
in the of in the
will." (Emphasis added.) This is clearly correct, given the
agreement's recitation that the parties desired to adjust
their rights to reflect what they believed were the dece-
dent's desires.
Montana statutes relevant to the construction of wills
include § 72-11-302, MCA, which provides:
The words of a will are to be taken in
their ordinary and grammatical sense,
unless a clear intention to use them in
another sense can be collected and that
other can be ascertained.
and § 72-11-304, MCA, which provides:
(1) When the terms of an agreement have
been reduced to writing by the parties,
it is to be considered as containing all
those terms, and therefore there can be
between the parties and their representa-
tives or successors in interest no evi-
dence of the terms of the agreement other
than the contents of the writing, except
in the following cases:
(a) where a mistake or imperfection of
the writing is put in issue by the
pleadings;
(b) where the validity of the agreement
is the fact in dispute.
(2) But this section does not exclude
other evidence of the circumstances under
which the agreement was made or to which
it relates, as defined in 1-4-102, or to
explain an extrinsic ambiguity or to
establish illegality or fraud.
(3) The term agreement includes deed and
wills, as well as contracts between
parties.
We agree with the District Court that the circumstances
surrounding the will must be looked at to construe the "cash
and savings" clause. The court opted to construe that clause
broadly, reasoning that Merle, at the time of the will and in
subsequent years, caused money and property to be owned
jointly with Roberta. Thus, he clearly intended to amply
provide for his wife. The court also cited the attorney's
notes which indicated that Merle wanted the ranch to stay in
his family. Given those notes, the court construed the
residuary clause (which granted Everette the remainder of the
estate "including but not limited to my ranch and any live-
stock and machinery" ) to include all personal property
connected with the ranch. The court concluded that the
promissory note should pass to Roberta under the "cash and
savings" clause given the broad interpretation of the clause
and that the note was not ranch property. We agree with the
court's reasoning and affirm its decision on this point. We
add that the loan underlying the promissory note was derived
principally from certificates of deposit jointly owned by
Roberta and Merle. At least before the loan, Merle intended
the money now embodied in the promissory note to be
Roberta's.
Under the peculiar circumstances of this case, we also
affirm the court's decision that the diamond ring, the part-
nership interest and the corporate shares should pass to
Roberta under the "cash and savings" clause. The circum-
stances indicate that this clause should be construed
broadly.
We also agree that the patronage and capital credits in
Southeast Electric Cooperative, Range Telephone Cooperative
and Farmer's Cooperative, should - pass to Roberta under
not
the "cash and savings" clause. We agree that those were
ranch assets connected with the ranch business. The circum-
stances indicate that Merle intended that ranch assets should
pass to Everette.
 The next issue is whether the court erred in refusing
to award the homestead allowance and exempt property to
Roberta. We agree with the District Court that Roberta
waived her rights (to exempt property and the homestead
allowance) through the May agreement which provided:
[Rloberta has rights to the property of
the estate by reason of being the widow
of Merle ... In consideration of the
foregoing Roberta Flasted gives up all
her rights to claim any share of the
decedent's estate other than the cash and
savings of the decedent and that part of
his estate specified in this agreement.
Neither the homestead allowance nor exempt property were
specified by the agreement as going to Roberta. Roberta
argues that at the time of the agreement she had no knowledge
of the homestead allowance or of exempt property and, there-
fore, under § 72-2-102, MCA, she could not have waived those
rights. That statute provides:
The right of election of a surviving
spouse and the rights of the surviving
spouse to homestead allowance, exempt
property, and family allowance or any of
them may be waived, wholly or partially,
before or after marriage, by a written
contract, agreement, or waiver signed by
the party waiving after fair disclosure.
Unless it provides to the contrary, a
waiver of "all rights" (or equivalent
language) in the property or estate of a
present or prospective spouse or a com-
plete property settlement entered into
after or in anticipation of separation or
divorce is a waiver of all rights to
elective share, homestead allowance,
exempt property, and family allowance by
each spouse in the property of the other
and a renunciation by each of all bene-
fits which would otherwise pass to him
from the other by intestate succession or
by virtue of the provisions of any will
 executed before the waiver or property
settlement.
Roberta claims that because there was no fair disclosure she
could not waive her rights. We hold that under the peculiar
circumstances of this case Roberta did waive the homestead
allowance and exempt property. Those circumstances are that
(1) the agreement acknowledges that Roberta had rights to
the property of the estate by reason of being the widow of
Merle Flasted; (2) Mr. Huntley, an able and experienced
attorney, was representing Roberta at the time of the agree-
ment; (3) Mr. Huntley drafted the agreement; (4) Everette
was not represented by Mr. Huntley or other counsel at the
meeting where the agreement was executed; (5) there is no
evidence that Everette, a rancher, was aware of the homestead
allowance or of exempt property so that he could advise
Roberta of her rights. Parenthetically, we note that the
court found that Mr. Huntley was representing Roberta at the
time of the agreement. Roberta has not raised that finding
as an issue on appeal. Moreover, 5 28-3-206, MCA, provides
that a contractual ambiguity should be interpreted against
the party causing the uncertainty, Roberta in this case. We
hold that Roberta did waive the rights in question. We need
not address whether Roberta properly pursued the appeal of
this issue.
The next issue is whether the court erred in denying
Roberta's motion for judgment on the pleadings. Roberta
moved for judgment on the pleadings part-way through trial,
after sixteen stipulations had been read into the record and
two witnesses had testified for approximately 140 pages of
transcript. Rule 12 (c), M. R. Civ. P., provides that a party
may move for judgment on the pleadings within - -time as
such -
- - delay the trial. Given the tardiness of the motion,
not to
we uphold the court's denial of the motion.
 The last issue is whether the court erred in relying
upon parol evidence to construe one provision of the May 1983
agreement. That clause provided that Roberta would receive
"all of the vehicles belonging to the decedent at the time of
his death except the pickup truck. . . ." The court, relying
on parol evidence of the parties' intent, held that Roberta
would receive a Cadillac car but not ranch vehicles, a snow-
mobile or an airplane. Section 28-2-905, MCA, provides:
(1) Whenever the terms of an agreement
have been reduced to writing by the
parties, it is to be considered as con-
taining all those terms. Therefore,
there can be between the parties and
their representatives or successors in
interest no evidence of the terms of the
agreement other than the contents of the
writing except in the following cases:
(a) when a mistake or imperfection of
the writing is put in issue by the
pleadings;
(b) when the validity of the agreement
is the fact in dispute.
(2) This section does not exclude other
evidence of the circumstances under which
the agreement was made or to which it
relates, as described in 1-4-102, or
other evidence to explain an extrinsic
ambiguity or to establish illegality or
fraud.
(3) The term "agreement", for the pur-
poses of this section, includes deed and
wills as well as contracts between
parties.
This Court has stated that:
Ambiguity only exists when a contract
taken - - whole in its wording or phra-
as a
seology is reasonably subject to two
different interpretations. (Emphasis
added. )
Martin v. Community Gas & Oil Co., Inc. (~ont. 1983), 668
P.2d 243, 245, 40 St.Rep. 1385, 1388. We hold that this
agreement taken as a whole, is ambiguous. The agreement
awards Roberta "all vehicles" (with the exception of a pick-
up) t which phrase is in itself somewhat ambiguous.
The agreement also states that "the parties desire to
adjust their rights to reflect what they would believe would
be the desires of the decedent." The decedent's desires, as
expressed in the will, were that Everette would receive the
decedent's machinery. Therefore, the agreement intends on
the one hand that Roberta receive all vehicles with one
exception, but on the other hand that Everette would receive
the machinery. The District Court properly relied on par01
evidence to interpret the ambiguous "all vehicles" clause.
Roberta does not argue that there is insufficient evidence to
support the court's construction of that clause.
.
Affirmed

Justices / /