Estate of Flasted, Matter of, 86-440

• Decision Date: 17 August 1987
• Docket Number: No. 86-440,86-440
• Citation: 228 Mont. 85,741 P.2d 750
• Parties: In the Matter of the ESTATE OF Merle K. FLASTED, Deceased.
• Court: Montana Supreme Court

Page 750

741 P.2d 750

228 Mont. 85

In the Matter of the ESTATE OF Merle K. FLASTED, Deceased.

No. 86-440.

Supreme Court of Montana.

Submitted June 4, 1987.

Decided Aug. 17, 1987.

Huntley & Eakin, Gene Huntley, argued, for Roberta Flasted, Baker, for appellants.

Peterson, Schofield & Leckie, K.D. Peterson argued for Everette Flasted, Billings, Dorsey & Whitney, Richard A. Brekke, argued, for Estate and Personal Representative, Billings, for respondent.

GULBRANDSON, Justice.

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 resolution of this appeal. In December 1974, Merle Flasted executed 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, Everette 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, Everette 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 Everette.

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, discussions 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:

[R]oberta Flasted was devised the cash and savings of the decedent ... now Roberta Flasted has rights to the property 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 to the decedent at the time of his death except the pickup truck which was used for the ranch operation. Everette 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 of 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. Everette 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 approximately $209,000 from checking accounts, certificates of deposit, savings certificates and stock which she had previously 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 Sec. 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 construction 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 Sec. 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 conclusions ruling that (1) as "cash and savings" under the will and agreement, Roberta would receive a $150,000 promissory 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 allowance 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 savings' used in the agreement did not alter the will and should be construed in the context of their meaning 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 decedent's desires.

Montana statutes relevant to the construction of wills include Sec. 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 Sec. 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 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) 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...