No. 89-515
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
In the Matter of the
Estate of Doris I. DeLong,
Deceased,
Pat Drabant, Smith Eugene
Davies, Irene Morgigno,
Barbara Elliott, LaVonne Davies,
Petitioners and Appellees,
Helen E. DeLong,
Respondent and Appellant.
APPEAL FROM: District Court of the Ninth Judicial District,
In and for the County of Lincoln,
The Honorable Robert S. Keller, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Marshall M. Myers, Eureka, MT
For Respondent:
S. Charles Sprinkle, Libby, MT
Submitted: 12/14/89
* Decided: March 6, 1990
Filed:
Justice John C. Sheehy delivered the Opinion of the Court.
Decedent Doris I. DeLong provided in the second paragraph of
her form will, ItIgive, devise and bequeath to James E. DeLons or
Helen DeLonq.If (Underlined words are handwritten.) Petitioners
and appellees, Pat Drabant, Smith Eugene Davies, Irene Morgigno,
Barbara Elliott, and Lavonne Davies petitioned the District Court
to declare the will of the decedent Doris I. DeLong invalid or to
determine that the estate passed by intestacy.
The District Court, Nineteenth Judicial District, Lincoln
County, determined that the will of Doris DeLong of August 9, 1988,
is a valid will and that Helen DeLong be appointed personal
representative. Furthermore, the District Court denied Pat
Drabantfs request to be appointed personal representative. The
District Court also found that under the will no testamentary
disposition was made of the property of the decedent, and ordered
the decedent's property to pass under the law of intestate
succession. The District Court attached the following brief
memorandum to explain its holding:
State of Montana v. Keller, 173 Mont. 523, 528, 568 P.2d
166 (1977) makes it clear that the Court cannot rewrite
the will of the testatrix, and there is nothing by which
to clearly determine the intent of the testatrix. The
reference to Iftoall other relatives and friends I leave
my love and my good willn tells the Court nothing with
respect to the intent of Doris I. DeLong. She had
already planned to Ifgive,devise and bequeathft somethinq
to James E. DeLong or Helen E. DeLong. She originally
wrote that it was to go to James E. DeLong Helen E.
DeLong, but she lined out the word "andffand inserted the
word "orw, which now puts the will in the posture of not
knowing what it is that is to be bequeathed or devised,
but also does not tell us to whom. The parties may have
agreed to the competency of Doris I. DeLong, but the
foregoing is sufficient for me to determine that I do not
know what the testatrix had in mind, and I may not
rewrite the will.
As such, the remainder of the will then is valid, thus
revoking all other wills, and appointing Helen DeLong as
the Personal Representative.
The respondent and appellant, Helen E. DeLong, appeals the
District Court order, asserting the decedent's intent was to devise
all of her property to Helen or James DeLong. We disagree with
appellant, and affirm the District Court.
Essentially the appellant raises one single issue on appeal:
Whether the District Court erred in finding lack of testamentary
intent.
Appellant argues that an examination of the entirety of Doris
DeLong's will shows that her intent was to devise her entire estate
to Helen or James DeLong. In contrast, the appellees assert the
will is valid, but the decedent's intent is impossible to deduce
by a reading of the four corners of the will. Therefore the estate
should pass by intestacy.
It is well settled that the intention of a testatrix, as
expressed in her will, controls the legal effect of her
disposition. Section 72-2-501, MCA; In Re the Estate of Erdahl
(Mont. 1981), 630 P.2d 230, 231; State Fish & Game Comm'n. v.
Keller, Etc. (1977), 173 Mont. 523, 526, 568 P.2d 166, 168. The
intent of the testatrix must be found from all parts of the will
which are to be construed in relation to each other so as, if
possible, to form one consistent whole. In Re the Estate of
Spriggs (1924), 70 Mont. 272, 225 P. 617. The intention of the
testatrix is also to be ascertained from the words of a will which
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. section 72-11-302, MCA; In Re the
Estate of Humes (1954), 128 Mont. 223, 226, 272 P.2d 999, 1000.
In the present case, the decedent, on August 9, 1988, executed
a valid will. The will contains the printed language: Itsecond-
-I give, devise and bequeath tow and then sets holographically the
names I1JamesE. DeLong or Helen DeLong. In case of Helen and James
death, I leave to Tom DeLong." Originally she wrote that it was
to go to ''James E. DeLong and Helen DeLongIn but she lined out the
word Itand1'
and inserted the word llor.ll
The will then sets forth
in a second holographic paragraph: "To all other relatives and
friends I leave my love and my good will."
The appellant contends that by construing the two holographic
sections in relation to each other, as required by Erdahl, the only
possible interpretation of the testatrix's intent is that she
intended to convey her entire estate to Helen or James DeLong, or
in the event of their death to Tom DeLong, and nothing to her
remaining relatives and friends. We adopt the District Court's
reasoning that by lining out the word ltandt* by inserting the
and
word "or,It the will is left in a state of ''not knowing what it is
that is to be bequeathed or devised, but also does not tell us to
whom.
In this case, the will simply does not leave any property,
real or personal, to anyone. As this Court stated in State Fish
& Game Comm'n. v. Keller, Etc. (1977), 173 Mont. 523, 528, 568 P.2d
166, 169, we will not rewrite the will of testatrix by substituting
what this Court thousht the testatrix intended for the erroneous
provision. Therefore, the residual portion of this will is
invalid, and the estate must pass by intestacy. Section 72-2-201,
MCA .
Despite the lack of testamentary intent, appellant argues the
will can be cured by applying the legal definitions for the words
nndevisewand "bequeath. Appellant, relying on Blackt Law
s
Dictionary and some case law from other jurisdictions, proposes the
following definitions:
1) Devise--A testamentary disposition of land or
realty; a gift of real property by the last will and
testament of the donor ... when used as a verb, means
to dispose of real or personal property.
2) Bequeath--To give personal property by will to
another.
Next, the appellant by inserting the above definitions
contends the will reads as follows:
Second--I give real property (devise) and personal
property (bequeath) to James E. DeLong or Helen DeLong.
We cannot adopt appellantns argument. Appellant is asking
the Court to conjure up the intent of the decedent, a task this
Court is not capable of performing. This Court cannot determine
what portion, if any, of her real and personal property the
decedent intended to pass to James DeLong or Helen DeLong.
Furthermore, appellant contends the property should vest in
Helen and James DeLong as owners in common pursuant to 5 72-11-
319, MCA. Section 72-11-319, MCA, provides that "A devise or
legacy given to more than one person vest in them as owners in
~ornrnon.~' This argument fails for two reasons. First, the
decedenttsuse of the word llorll
does not connote a devise to I1James
and Helen DeLongl1 as owners in common, but rather a devise to
either "James DeLongffor "Helen De1ong.l' Second, if we would
consider the DeLongs owners in common, the will still fails because
it is impossible from reading the will to determine what the
testatrix intended to devise to the DeLongs.
Finally, appellant claims the will is in the posture of having
one beneficiary of the testatrix's real and personal property, that
person being James DeLong. Appellant arrives at this conclusion
from the fact that on September 24, 1989, Helen DeLong relinquished
any interest she may have possessed under the will. The filing of
her relinquishment post-dated the District Court hearing on this
matter. The issue was not properly presented to the District
Court, and this Court will not review an issue raised for the first
time on appeal. Weinberg v. Farmers State Bank of Worden (1988),
231 Mont. 10, 19, 752 P.2d 719, 724; Rozzel Corp. v. Dept. of
Public Service Regulation, et al. (1987), 226 Mont. 237, 243, 735
P.2d 282, 286; Akhtar v. Van De Wetering (1982), 197 Mont. 205,
209, 642 P.2d 149, 152; Peters v. Newkirk (Mont. 1981), 633 P.2d
1210, 1212. Furthermore, regardless of whether one or another of
the DeLongs have relinquished an interest, the question still
arises, "What interest did they relinquish?I1 We cannot answer this
question because we cannot divine the intent of the testatrix.
While the residual portion of the will is invalid, the
remainder of the will is valid. As we stated In Re Bernheimls
Estate (1928), 82 Mont. 198, 213, 266 P. 378, 384:
Where a will contains different provisions, some of which
are valid by law and others invalid, those which are
valid will be upheld, if they can be separated from those
which are invalid without violating the testator's
general intention, and as to the parts which are invalid
the testator may be held to have died intestate. . . .
In this present case, the residual portion of the will is
invalid due to the lack of testamentary intent, but the rest of the
will, revoking all other wills and appointing Helen DeLong as the
personal representative, is valid. Accordingly, because the real
and personal property of the decedent Doris I. DeLong is not
effectively disposed of by her will, that property passes under the
laws of intestate succession. Section 72-2-201, MCA; Dahood v.
Frankovich (1987), 229 Mont. 287, 289, 746 P.2d 115, 116.
The problems encountered with the will in this case illustrate
how treacherous it is to rely on preprinted form wills. At the
time the decedent executed the will she may have saved herself the
expense of a lawyer, but in the end her presumed devisees lost it
all to intestacy.
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Justice 4
We Concur: