Hanson v. Estate of Bjerke , 322 Mont. 280 ( 2004 )

No. 04-127
IN THE SUPREME COURT OF THE STATE OF MONTANA
2004 MT 200
TERI R. HANSON,
Petitioner, Appellant and Respondent,
v.
ESTATE OF E. GILMAN BJERKE,
DARREL TADE, Personal Representative,
Respondent and Respondent,
v.
SCOBEY ALUMNI FOUNDATION, INC.,
A Montana Nonprofit Charitable Corporation,
Intervenor and Cross-Appellant.
APPEAL FROM: District Court of the Fifteenth Judicial District,
In and For the County of Daniels, Cause No. DV 10-2002-14,
Honorable David J. Cybulski, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Loren J. O’Toole, II, O’Toole & O’Toole, Plentywood, Montana
For Respondent:
Laura R. Christoffersen, Knierim & Christoffersen, Culbertson, Montana
Ken W. Hoversland, Attorney at Law, Scobey, Montana
For Cross-Appellant:
Daniel N. McLean, Crowley, Haughey, Hanson, Toole & Dietrich,
Helena, Montana
Submitted on Briefs: June 15, 2004
Decided: August 3, 2004
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Teri Hanson was one of the named beneficiaries in the last will and testament of E.
Gilman Bjerke. However, a year after Mr. Bjerke’s will was admitted to probate, certain real
property devised to Hanson had not yet been distributed to her. Meanwhile, the personal
representative had distributed over $150,000 to the named beneficiary of the residuary estate,
Scobey Alumni Foundation, Inc. (SAFI). Hanson filed a declaratory action seeking an
interpretation and declaration of her rights pursuant to Mr. Bjerke’s will. Hanson claimed
that the eighth paragraph of the will gave her all personal property not designated on a list
attached to the will. That portion of Mr. Bjerke’s will states:
EIGHTH: I have made a list of all my personal belongings and household
effects, and have set forth in said list the party to whom I wish to give each
item, and have made this list available to my said personal representative, and
it is my desire that said heirs and beneficiaries abide by that list as if it were
a part of this, my Last Will and Testament. Any article of personal property
not designated by said list shall be determined to be a content of my house and
shall be bequeathed to Teri R. Hanson.
¶2 Hanson argues that money is personal property. Accordingly, since Mr. Bjerke’s
money was not included on the attached list, Hanson posits that Bjerke intended to bequeath
all money to her as contents of his house. Darrel Tade, the personal representative
responded, seeking to void all of Hanson’s inheritance other than one dollar by invoking the
“no-contest” provision of the will. Hanson moved to have Darrel Tade removed as personal
representative. The District Court’s summary judgment agreed with Hanson on the
interpretation of the eighth paragraph, which the District Court noted left nothing in the
residuary of Mr. Bjerke’s estate. The District Court also denied Hanson’s request to remove
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Darrel Tade as personal representative and concluded that the filing of a declaratory
judgment action did not constitute a contest under the “no-contest” provision of the will.
¶3 SAFI intervened as an interested party and successfully moved the District Court to
vacate the initial summary judgment order. SAFI then urged the District Court to interpret
Mr. Bjerke’s will in a way which would fund each paragraph, including the residuary, which
reads:
NINTH: I give, devise and bequeath all the rest, residue and remainder of my
estate, whatsoever and wheresoever, both real and personal, to which I may be
entitled or which I may have power to dispose of at my death, after payment
of my debts, funeral and testamentary expenses, and any legacies bequeathed
hereby or by any codicil hereto, unto SAFI, a Montana non-profit corporation,
of Scobey, Montana, to be used at its discretion.
¶4 In revisiting the issues on renewed motions for summary judgment, the District Court
determined that, from the ordinary meaning of the words in the will, it was not Mr. Bjerke’s
intention to include money invested outside the home as an article of personal property.
Thus, only cash deemed to have been found within the home was to be distributed to Hanson
under paragraph eight. The court determined that invested money or “money equivalents”
were not “article(s) of personal property” passing under paragraph eight and thus became
part of the residuary estate.
¶5 Hanson now appeals and SAFI cross appeals. We affirm.
¶6 Our standard of review of a district court’s findings of fact is whether they are clearly
erroneous. In re Estate of Kuralt, 2000 MT 359, ¶ 14, 303 Mont. 335, ¶ 14, 15 P.3d 931,
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¶ 14. Our review from an order granting or denying summary judgment is de novo. In re
Estate of Johnson, 2002 MT 341, ¶ 7, 313 Mont. 316, ¶ 7, 60 P.3d 1014, ¶ 7.
¶7 Hanson claims that money, both cash and invested money, is “personal property”
whether or not it is found in the house. Accordingly, all money not otherwise specifically
bequeathed should be determined to be a content of Mr. Bjerke’s house under paragraph
eight. SAFI counters that “articles of personal property” refers to tangible chattels, such as
those referenced in the list; that money is not an “article of personal property” and whether
or not found within the house, all money not otherwise designated should go to SAFI by the
terms of the residuary paragraph. In particular, SAFI contends that invested money is not
an item of tangible personal property.
¶8 As a legal term of art, the phrase “personal property” includes money. Section 1-1-
205(1), MCA, states that: “‘Personal Property’ means money, goods, chattels, things in
action, and evidences of debt.” However, that definition specifically applies only to the
Montana Code Annotated. Section 1-1-205, MCA. Nonetheless, the statutory definition of
“personal property” reflects the widely accepted definition. Black’s Law Dictionary states
that personal property is, “[i]n [a] broad and general sense, everything that is the subject of
ownership, not coming under denomination of real estate.” Black’s Law Dictionary, 1217
(6th ed. 1990). Personal property is to be distinguished from real property in the interpreta-
tion of a will. In re Estate of Wooten (1982), 198 Mont. 132, 643 P.2d 1196.
¶9 However, because Montana courts are guided by the bedrock principle of honoring
the intent of the testator, Kuralt, ¶ 17, we will apply legal terms of art to effectuate the intent
of the testator. To do so, the will must be read as a whole, with phrases and clauses read in
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context. Here, the testator referred not just to “personal property,” but more specifically to
“articles of personal property.” Furthermore, Mr. Bjerke had attached a list of items of
tangible personal property, pursuant to § 72-2-533, MCA. The list included such items as a
pickup truck, a snow-blower, and a floor hoist. Under the doctrine of ejusdem generis,
general words may be limited in their application to items of a similar class, as exemplified
by the more specific and particular words preceding the general phrase. Schuff v. A.T.
Klemens, 2000 MT 357, ¶¶ 116, 123, 303 Mont. 274, ¶¶ 116, 123, 16 P.3d 1002, ¶¶ 116,
123. We applied the doctrine of ejusdem generis in the context of interpreting a will in In
re Estate of Donovan (1976), 169 Mont. 278, 282, 546 P.2d 512, 514, where we concluded
that the general phrase “all my personal effects” did not include expensive jewelry when the
list preceding the phrase specifically included “costume jewelry” and other less expensive
items.
¶10 Hanson contends that the doctrine of ejusdem generis has no application here because
Mr. Bjerke was statutorily precluded from including money in a referenced list of “tangible
personal property.” Section 72-2-533, MCA. The statutory prohibition on listing money
does not, however, change the applicability of the ejusdem generis doctrine, which focuses
on what is specifically listed, not on what is omitted. In reading Mr. Bjerke’s will as a
whole, with an eye towards the doctrine of ejusdem generis, it is clear that he was
contemplating only tangible goods in his eighth paragraph. First, the list included only items
of tangible personal property. Second, the will’s reference to “articles” of personal property
reinforces the focus on the physical, tangible nature of the property. It is thus clear that he
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intended that articles of personal property which were not designated in the list “shall be
determined to be” contents of the house (irrespective of whether they were, in fact, found in
the house). Furthermore, the last sentence makes it clear that Mr. Bjerke intended that any
article of personal property not designated by the list shall be determined to be a content of
the house and shall be bequeathed to Teri Hanson. We hold that the District Court honored
the intent of the testator and correctly concluded that “cash” (i.e., currency and coin) is an
item of tangible personal property and that paragraph eight bequeathed to Hanson any cash
deemed to be found within the house. On the other hand, invested money is not an “article
of personal property” and thus does not pass to Hanson under paragraph eight as “contents
of the house.”
¶11 On the cross-appeal, SAFI contends that the District Court erred in determining that
cash is an item of personal property and thus should pass under paragraph eight of the will.
For the above-stated reasons, we affirm the court’s conclusion that cash comes within the
wording “articles of personal property” and like any other article of personal property not
designated by the list, “shall be determined to be a content of my house and shall be
bequeathed to Teri R. Hanson.”
¶12 As a last issue, Hanson also claims that the District Court erred in failing to remove
the personal representative. SAFI contends that Hanson waived this issue and failed to
preserve it for appeal by failing to request the District Court to rule on the issue after it
vacated its previous ruling. However, the record indicates that on the same day the District
Court vacated the first order, Hanson filed a motion for summary judgment accompanied by
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briefs, which incorporated all of her previous arguments, including her request that the
personal representative be removed. Thus, although Hanson did raise the issue, it was not
addressed in the District Court’s second order. SAFI claims that Hanson should have
brought the omission to the District Court’s attention. However, Rule 46, M.R.Civ.P., states
that formal exceptions to court rulings are not necessary, so long as the issue was properly
before the court, which it was. Therefore, the issue is appropriately before us on appeal.
¶13 A personal representative may be removed for cause. Cause exists:
(a) when removal would be in the best interests of the estate; or
(b) if it is shown that a personal representative or the person seeking
his appointment intentionally misrepresented material facts in the proceedings
leading to his appointment or that the personal representative has disregarded
an order of the court, has become incapable of discharging the duties of his
office, or has mismanaged the estate or failed to perform any duty pertaining
to the office.
Section 72-3-526(2), MCA.
¶14 Hanson claims that personal representative Darrel Tade, contrary to the express terms
of the will, distributed $150,000 to SAFI. Hanson’s argument is premised on the assumption
that SAFI was not entitled to distribution of money found outside the house. However, as
we concluded above, that distribution was not in violation of any express terms of the will.
Hanson also claims that the personal representative improperly withheld real property that
was due Hanson and attempted to condition transfer of the real property on Hanson’s
abandoning her claim to money found outside the house. While it is unusual for a personal
representative to make distributions from the residuary of the estate prior to resolving or
disposing of other specific bequests or devises, Hanson fails to show that the personal
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representative mismanaged the estate or failed to perform any duty pertaining to the office.
Montana law specifically enumerates the duties of a personal representative. Title 72,
Chapter 3, Part 6, Montana Code Annotated. Hanson does not cite to any statutory provision
in support of her contention that she was entitled to “immediate” delivery of the property.
Indeed, the code does not require “immediate” delivery. Rather, the uniform probate code
provides that a personal representative has a “duty to settle and distribute the estate of the
decedent in accordance with the terms of any probated and effective will and this code and
as expeditiously and efficiently as is consistent with the best interests of the estate.” Section
72-3-610, MCA. Thus, Hanson failed to establish any of the statutory criteria sufficient to
warrant removal of a personal representative. We find no error in the District Court’s failure
to remove Tade as the personal representative.
¶15 Based on the foregoing, we affirm the order of the District Court.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ KARLA M. GRAY
/S/ PATRICIA O. COTTER
/S/ JIM REGNIER
/S/ JOHN WARNER
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