Hanson v. ESTATE OF BJERKE

• Decision Date: 03 August 2004
• Docket Number: No. 04-127,04-127
• Citation: 95 P.3d 704,322 Mont. 280,2004 MT 200
• Parties: 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.
• Court: Montana Supreme Court

2004 MT 200

322 Mont. 280

95 P.3d 704

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.

No. 04-127

Supreme Court of Montana.

Submitted on Briefs: June 15, 2004

Decided: August 3, 2004

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.

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 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, ¶ 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 interpretation 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 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...