Matter of Estate of Dunlap

NO. 82-46
IN THE SUPREJIZE COURT OF THE STATE OF MONTANA
1982

IN THE MATTER OF THE ESTATE OF
BESSIE EVA DUNLAP, a/k/a
BESS DUNLAP, Deceased.

Appeal from: District Court of the Fourth Judicial District,
In and for the County of Missoula
Honorable John Henson, Judge presiding.
Counsel of Record:
For Appellant:
Tipp, Hoven, Skjelset & Frizzell, Missoula, Montana
Richard Buley argued, Missoula, Montana
For Respondent:

Milodragovich, Bale and Dye, Missoula, Montana
Donald C. St. Peter argued, Missoula, Montana

Submitted:
'-
I
June 2 4 , 1982
Decided: August 19, 1982

Filed: AU(; 1 9 1982
Mr. Justice Gene B. Daly delivered the Opinion of the Court.
The decedent, Bessie Eva Dunlap, died testate on
November 27, 1980. J. Wayne Dunlap, the surviving child of
Bessie, filed a "Petition For Exempt Property Allowance" on
July 1, 1981. A hearing was held in the District Court of
the Fourth Judicial District of the State of Montana, in and
for the County of Missoula. I y order, on August 5, 1981,
3
the District Court granted J. Wayne Dunlap $3,500 in exempt
property. The estate of Bessie Dunlap thereafter moved the
District Court to amend its order. The motion was denied,
and the estate now appeals.
Bess Dunlap died testate on November 27, 1980. In
paragraph 7 of her will, she acknowledged her son, J. Wayne
Dunlap, and stated:
"I hereby declare that I have one child: J.
Wayne Dunlap, a/k/a Joseph A. Dunlap. I spe-
cifically leave nothing to my said child."
Bessie Dunlap's husband predeceased her. In her
will, Bessie devised all her property to her husband, and in
the event he predeceased her, the entire estate was then
devised to the Victor Cemetary Association, Victor, Montana.
The personal representative appointed by the will
filed an application for informal probate and received her
letters of probate. Later, the disinherited son, J. Wayne
Uunlap, filed a notice of intent and petition to take exempt
property.
The sole issue before this Court is whether a child
specifically disinherited by will may take under section
72-2-802, MCA, which provides exempt property for certain
heirs.
Section 72-2-802, MCA, provides:
 "(1) In addition to the homestead allowance,
the surviving spouse of a decedent who was
domiciled in this state is entitled from the
estate to value not exceeding $3,500 in
excess of anv securitv interests therein in
* *
household furniture, automobiles, furnish-
ings, appliances, and personal effects. If
there is no surviving spouse, children of t L
decedent are entitled jointly ---the same
to ------
value. If encumbered chattels are selected
and if the value is excess of security in-
terests, plus that of other exempt property,
is less than $3,500 or if there is not $3,500
worth of exempt property in the estate, the
spouse or children are entitled to other
assets of the estate, if any, to the extent
necessary to make up the $3,500 value.
"(2) Rights to exempt property and assets
needed to make up a deficiency of exempt
property have priority over all claims
against the estate, except that the right to
any assets to make up a deficiency of exempt
property shall abate as necessary to permit
prior payment of homestead allowance and
family allowance.
"(3) These rights are in addition to any
--------- share passing to the surviving
benefit or
spouse or children by the will of the dece-
dent unless otherwise provided, by intestate
succession, or by way of elective------
share."
Section 72-2-802, MCA. (Emphasis added.)
The appellant has rested its case on two arguments:
(1) that testator's intent governs the above section, and
(2) that the statutory language in subsection (3) above,
"unless otherwise provided," includes the will of the
testator by disinheriting the son and hence the son cannot
be the recipient of exempt property. The appellant cites
Matter of Estate of Merkel to demonstrate that the primary
purpose of the exempt property provision is to protect the
estate from creditors in favor of the family. Matter of
Estate of Merkel (1980), Mont. , 618 P.2d 872, 37

We agree with the proposition advanced by appellant
that the governing rule in construction or interpretation of
a t e s t a m e n t a r y d i s p o s i t i o n is t h e i n t e n t i o n of t h e t e s t a t o r
and must prevail; however, that is not our case here.
Further, you cannot isolate the phrase as has been done

here. I t m u s t be c o n s i d e r e d w i t h t h e s e c t i o n as a w h o l e .

Section 72-2-802, MCA, does not, as argued by
appellant, use the term "exemption" or "exempt" in its

colloquial form. This section rather treats "exempt
property" together with "homestead allowance" i n t h e noun
form t o i d e n t i f y a n a b s o l u t e g r a n t . T h i s g r a n t is t o t h e
s p o u s e who s u r v i v e s a n d i f no s u r v i v i n g s p o u s e , t h e n i n p a r t
(exempt p r o p e r t y ) t o c h i l d r e n of t h e d e c e d e n t j o i n t l y i n t h e
same v a l u e a s would g o t o a s p o u s e . These r i g h t s ( o r g r a n t )
are in addition to any benefit or share passing to the
surviving spouse or children (1) by w i l l of the decedent
unless otherwise provided, ( 2 ) by i n t e s t a t e s u c c e s s i o n , or

( 3 ) by way o f e l e c t i v e s h a r e .

This Court determined in Merkel, supra, that the
surviving spouse's right t o e x e m p t p r o p e r t y and h o m e s t e a d
allowance was absolute. The estate's contention that a

d e c e d e n t ' s c h i l d r e n a r e n o t e n t i t l e d t o t h e same r i g h t s as a
s u r v i v i n g s p o u s e is s p u r i o u s . S e c t i o n 72-2-704, MCA, does
n o t e n l a r g e t h e s u r v i v i n g s p o u s e ' s r i g h t t o exempt p r o p e r t y
p u r s u a n t t o s e c t i o n 72-2-802, MCA. I t merely d i r e c t s t h a t

exempt property not be charged against the surviving
spouse's elective share. S e c t i o n 72-2-802, which c r e a t e s a
r i g h t t o exempt p r o p e r t y , makes no d i s t i n c t i o n b e t w e e n t h e
r i g h t s o f a s u r v i v i n g s p o u s e and c h i l d r e n o f t h e d e c e d e n t t o
t a k e exempt p r o p e r t y . The s t a t u t e e m b o d i e s a p r i o r i t y r i g h t
i n t h e s u r v i v i n g spouse a s a g a i n s t t h e s u r v i v i n g c h i l d r e n of

the decedent, but does not grant a surviving spouse any
greater right to exempt property than the surviving
children.
I n Merkel, supra, we stated that the homestead
exemption and exempt p r o p e r t y of t h e Montana Uniform P r o b a t e
Code continue the tradition of making statutory rights

available to a surviving spouse. In that case decedent
e x e c u t e d a w i l l which l e f t n o t h i n g t o h i s s u r v i v i n g s p o u s e .
N one q u e s t i o n e d h e r r i g h t t o s t a t u t o r y g r a n t s b e c a u s e s h e
o
was l e f t n o t h i n g by w i l l . Only t h e q u e s t i o n of l i f e o r f e e
i n t e r e s t t o h e r were a r g u e d . Our i n t e r p r e t a t i o n would g r a n t
a c h i l d t h e same r i g h t s under s e c t i o n 72-2-802, MCA, which
would n o t r e q u i r e t h a t a c h i l d r e c e i v e any b e n e f i t under t h e
w i l l of t h e decedent t o r e c e i v e t h e g r a n t .

The a p p e l l a n t a r g u e s a g a i n s t t h i s p r o c e d u r e b e c a u s e
t h e p u r p o s e of t h e exempt p r o p e r t y s t a t u t e i s t o p r o t e c t t h e
assets of the estate, especially family heirlooms from
passing t o creditors. The a p p e l l a n t i g n o r e s t h e f a c t t h a t
protecting these assets from c r e d i t o r s is not a n end in
itself. These a s s e t s a r e p r o t e c t e d from c r e d i t o r s s o t h a t
p r o p e r t y and money c a n be d i s t r i b u t e d t o t h o s e p e o p l e whom
Montana's l e g i s l a t u r e h a s d e t e r m i n e d t o p r o t e c t .
The family protection provisions of t h e Uniform

P r o b a t e Code were intended by the drafters to protect a

surviving spouse and children from disinheritance by a
decedent.
The Uniform Probate Code contains three different
k i n d s of p r o v i s i o n s t o p r o t e c t t h e immediate f a m i l y . Part
7, C h a p t e r 2 of T i t l e 7 2 , MCA, contains provisions assuring
t h e s u r v i v i n g s p o u s e of a s h a r e i n b o t h t h e p r o b a t e e s t a t e
and in certain assets transferred outside of the probate
process t h a t a decedent cannot defeat. Such e l e c t i v e s h a r e
takes t h e p l a c e of common law dower a n d c u r t e s y w h i c h a r e
a b o l i s h e d u n d e r t h e Code. P a r t 6 of Chapter 2, T i t l e 72,
MCA, protects against unintentional disinheritance by
p r o v i d i n g a s h a r e f o r t h e s u r v i v i n g s p o u s e and c h i l d r e n i f

the testator marries after executing the w i l l or has
c h i l d r e n b o r n o r a d o p t e d a f t e r t h e w i l l is e x e c u t e d , u n l e s s
the omission was intentional or the testator made other
provisions f o r t h e d i s i n h e r i t e d spouse o r child. P a r t 8 of
C h a p t e r 2, T i t l e 72, d e a l s w i t h exempt p r o p e r t y and a l l o w -
ances, s t a t u t o r y r i g h t s v e s t e a i n t h e s u r v i v i n g s p o u s e and

certain children.

I n t h e p r e s e n t c a s e , t h e d e c e d e n t ' s w i l l d i d no more
than disinherit the child and expressed no intent as to
statutory rights.
The j u d g m e n t 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 .

We concur: