In re Benolken's Estate

• Decision Date: 09 May 1949
• Docket Number: 8860.
• Citation: 205 P.2d 1141,122 Mont. 425
• Parties: In re BENOLKEN'S ESTATE. v. JOHNSON et al. BENOLKEN et al.
• Court: Montana Supreme Court

205 P.2d 1141

122 Mont. 425

In re BENOLKEN'S ESTATE.

BENOLKEN et al. v. JOHNSON et al.

No. 8860.

Supreme Court of Montana

May 9, 1949

Rehearing Denied May 23, 1949.

Appeal from District Court, Sixth Judicial District, Park County Benjamin E. Berg, Judge.

Proceeding in the matter of the estate of Phoebe Benolken, deceased. From the decree of distribution, Mary Lois Benolken and John Francis Benolken, Jr., the identical person also known as John Benolken, minors, by and through Ray Yardley, guardian ad litem, opposed by Viola Johnson, executrix of the last will and of the estate of Phoebe Benolken, deceased, and others appeal.

Decree affirmed.

ADAIR Chief Justice.

Phoebe Benolken, a widow, died testate, leaving surviving her seven heirs at law. Five children, all adults, and two grandchildren, both minors, constitute her heirs. The grandchildren, appellants herein, are the issue of a predeceased son of testatrix.

The will of testatrix was admitted to probate--the estate was settled and decree of distribution was entered.

The decree distributes one dollar to each of the grandchildren and the rest, residue and remainder of the estate, consisting of both real and personal property situate in Park County Montana, in equal shares, to the three surviving children of testatrix mentioned and provided for in the third clause of her will. This is an appeal by the two grandchildren from such decree.

Had there been no will the estate would have been distributed pursuant to the provisions of subdivision 1 of section 7073 Rev.Codes of Montana of 1935, which reads:

'If the decedent leaves no surviving husband or wife, but leaves issue, the whole estate goes to such issue; and if such issue consists of more than one child living, or one child living, and the lawful issue of one or more deceased children, then the estate goes in equal shares to the children living, or to the child living, and the issue of the deceased child or children by right of representation.'

Appellants contend they are entitled to inherit under section 7073, supra, in spite of the will, claiming that they come within the provisions of section 7009, R.C.M. 1935, which provides: 'When any testator omits to provide in his will for any of his children, or for the issue of any deceased child, unless it appears that such omission was intentional, such child or the issue of such child, must have the same share in the estate of the testator as if he had died intestate, and succeeds thereto as provided in the preceding section.'

Clearly section 7009, supra, can have no application unless it appears from the will that testatrix unintentionally omitted to provide in her will for appellants.

The sole question is: Did testatrix unintentionally omit to provide in her will for her two appellant grandchildren?

The material portions of the will upon the point in issue are the second, third and fourth clauses thereof which read:

'Second. I hereby give and bequeath unto each of my heirs-at-law not elsewhere herein mentioned or provided for, the sum of One Dollar ($1.00).

'Third. I hereby give, bequeath and devise unto my children, Viola Johnson, Phoebe Montier and James Benolken, all the rest, residue and remainder of my property and estate, both real and personal, or to such of my said children as shall survive me, they to share equally therein, share and share alike.

'Fourth. I intentionally omit any bequest or devise to my sons, Leo Benolken and George Benolken.' The foregoing provisions of the will are concise, clear and distinct and evidence that the scrivener who drafted them has used accurate legal phraseology which manifests familiarity with legal terms in common use and with the statutes and principles applicable to testamentary dispositions in this jurisdiction.

In her will the testatrix was privileged to describe her beneficiaries (1) by their relationship to herself or some other designated individual, or (2) by certain qualities or characteristics, or (3) she could designate them by name. 3 Page on Wills, § 1006, p. 109.

Had there been no will her estate would have gone to her seven heirs at law, namely: to her five living children and to the issue of her deceased son, being the appellant grandchildren.

In the fourth clause of her will the testatrix mentioned her sons Leo and George, but 'intentionally' gave them nothing. This was her right for any person who has the capacity to make a will has the right to disinherit any or all of his children. In re Carroll's Estate, 59 Mont. 403, 410, 196 P. 996.

The law is as stated in in Re Eatley's Will, 82 N.J.Eq. 591, 89 A. 776, 779, wherein the court said: 'It may be harsh and severe, it may be extremely cruel under some circumstances, to disinherit one child and to bestow the whole estate upon another, but if the testator be of disposing mind and memory, and duly execute such will in the forms prescribed by law, no court can interfere.'

In the third clause of her will the testatrix mentioned and provided for her daughters, Viola and Phoebe, and for her son, James.

Having thus mentioned in the third and fourth clauses of her will her five living children, the testatrix thereby excluded each and all of her surviving children from taking or participating in any bequest provided for in the second clause of her will. Thereby was such clause rendered applicable only to her two heirs at law not elsewhere mentioned in her will being the two appellant grandchildren, Mary Lois Benolken and John Francis Benolken, Jr., they being the issue of Francis Benolken, the deceased son of testatrix.

It thus clearly appears from the will that at the time of its execution the testatrix distinctly had in mind each of her seven heirs at law, two of whom she mentioned in the fourth clause, three of whom she mentioned and provided for in the third clause and the remaining two of whom she provided for in the second clause of her will.

It follows that since the appellants are the only 'heirs-at-law not elsewhere * * * mentioned and provided for' in the will that they alone are designated and that they alone may have distributed to them and take the gifts and bequests provided for by testatrix in the second clause of the will. Such clause applies solely to the appellants. Therein is expressed the will of their grandmother as to the extent they may share or participate in her estate. Therein testatrix made such gift and bequest to appellants as she intended they should take. Any other construction would render the provisions of the second clause meaningless and would entirely defeat the expressed intention of testatrix that appellants should each receive the amount therein specified and bequeathed and no other part or share of her estate. 'The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative.' Section 7024, R.C.M. 1935.

There is no omission to provide for appellants. Each is expressly provided for in the second clause of the will. The provision is that unto each is given and bequeathed the sum of one dollar.

'Heirs,' 'heirs-at-law,' and 'legal heirs' are in a legal sense the same. In re Fahnestock's Estate, 384 Ill. 26, 50 N.E.2d 733, 736; Starrett v. Botsford, 64 R.I. 1, 9 A.2d 871; In re Bowen's Estate, 139 Pa.Super. 523, 12 A.2d 507. These are technical words with a fixed legal meaning, Lydick v. Tate, 380 Ill. 616, 44 N.E.2d 583, 592, 145 A.L.R. 1216; Leeper v. Leeper, 347 Mo. 442, 147 S.W.2d 660, 133 A.L.R. 586; Little v. Ireland, D.C.,

30 F.Supp. 653, and, when used in a will 'are to be taken in their technical sense, unless the context clearly indicates a contrary intention.' Section 7026, R.C.M. 1935.

In Bottomly v. Meagher County, 114 Mont. 220, 229, 133 P.2d 770, 775, this court said: 'However the word 'heirs' is a legal term expressing relation of persons to a deceased persons [citing cases] and an heir is one entitled under the law to succeed to property by right of relationship or descent [citing cases].' Also see sections 7033 and 7034, R.C.M. 1935.

The words 'my heirs-at-law' as used by Phoebe Benolken in the second clause of her will are words of donation, section 7034, R.C.M. 1935, expressing a gift,--a gratuitous transfer of property from one to another. United Brotherhood of Carpenters and Joiners v. Rogers, 165 Okl. 131, 25 P.2d 57; Chouteau v. City of St. Louis, 331 Mo. 1206, 56 S.W.2d 1050. The law does not require that testatrix give anything to any of her children or grandchildren. She had the right to give any of them as little or as much as she pleased and she was also privileged to disinherit any or all of them. In re Carroll's Estate, supra. Neither does the law require that testatrix, in her will, designate appellants or any other of her heirs at law by name. This is but one of three approved modes available for describing beneficiaries in a will. 3 Page on Wills, sec. 1006, p. 109.

Had the children, Viola, Phoebe or James, mentioned and provided for in the third clause, predeceased testatrix and left surviving issue, the latter, as heirs at law of testatrix not elsewhere mentioned or provided for in the will, would have taken under the second clause of the will and not under sections 7073 and 7009, R.C.M., supra.

It is axiomatic that no one is an heir at law to the living. In re Munger, Sup., 22 N.Y.S.2d 187, 192; Moore v. Segars, 192 Ga. 190, 14 S.E.2d 752; Whitley v. Arenson, 219 N.C. 121, 12 S.E.2d 906; In re Bartlett's Will, Sur., 76 N.Y.S.2d 247, 254; Templeman v. McFerrin, Tex.Civ.App. 1908, 113 S.W. 333; Gerard v. Beecher, 80 Conn. 363, 68 A. 438, 15 L.R.A., N.S., 900; Westcott v. Meeker, 144 Iowa 311, 122 N.W. 964, 29 L.R.A., N.S., 947.

A living person...