In re Strode's Estate

• Decision Date: 30 March 1946
• Docket Number: 8629.
• Citation: 167 P.2d 579,118 Mont. 540
• Parties: In re STRODE'S ESTATE. v. MELVIN et al. DELANEY
• Court: Montana Supreme Court

167 P.2d 579

118 Mont. 540

In re STRODE'S ESTATE.

DELANEY v. MELVIN et al.

No. 8629.

Supreme Court of Montana

March 30, 1946

Appeal from District Court, Liberty County, Twelfth District; C. B Elwell, Judge.

Proceeding in the matter of the estate of Thomas P. Strode, deceased wherein Annie E. Delaney filed a petition against Eva I Melvin, and others attacking the will of the deceased, and seeking adjudication as to the rights of the parties thereunder. From a judgment declaring the will valid and ordering distribution in accordance with the terms thereof plaintiff appeals.

Affirmed.

H. C. Hall and Ed. C. Alexander, both of Great Falls, and Duncan Gardner, of Glendale, Cal., for appellant.

Max P. Kuhr, of Havre, E. J. McCabe, of Great Falls, Cedor Aronow, of Shelby, and Peter M. Rigg, of Chester, for respondents.

MORRIS Justice.

Thomas P. Strode of Whitlash, Liberty County, Montana, died testate September 28, 1943, leaving as his only heirs two married daughters, Eva I. Melvin of Great Falls, Montana, and Annie E. Delaney, wife of William M. Delaney of Glendale, California. The Delaneys have four children who are named as defendants in this action. The decedent left a substantial amount of real and personal property. Strode named his daughter Eva and the Union Bank & Trust Company of Helena, Montana, executors of his will. Except for a special bequest to his daughter Eva, the estate was left in equal parts to the two daughters, but the portion intended for the daughter Annie was devised and bequeathed to the Union Bank & Trust Company in trust in these terms:

'Third: I give, devise and bequeath all of the rest and residue of my estate, real, personal and mixed, wheresoever situated, as follows:

'II. An equal one-half share and interest therein (hereinafter designated and termed 'trust estate') to Union Bank and Trust Company, a Montana corporation, of Helena, Montana (hereinafter referred to as 'Trustee') in trust, as follows: The Trustee shall receive and collect the principal, income, rents, issues and profits of the Trust Estate, and, after the payments and deductions hereinafter mentioned, shall pay, accumulate, use or invest, hold, apply and distribute the same to or for the purposes hereinafter stated, or the use and benefit of the beneficiaries hereinafter named, and shall convey and transfer the corpus or principal of the 'trust estate' as hereinafter provided.

'After the payment of all such indebtedness against what is herein designated as Trust Estate, all of the net income therefrom shall be paid by the trustee, in annual or other convenient installments, to my daughter, Annie E. Delaney, now residing at Glendale, California, so long as her present husband shall be living. If my said daughter, Annie E. Delaney, shall survive her present husband, then, upon his death, the Trustee shall transfer, deliver and distribute the principal or corpus of the Trust Estate to my said daughter, Annie E. DeLaney, the same then to be hers absolutely and forever. In the event that my said daughter, Annie E. Delaney, shall not survive her presented husband, then upon her death, the entire net income of the Trust Estate shall be paid by the Trustee, in annual or other convenient installments, to the children of my said daughter, Annie E. Delaney, then living, until the youngest of said Children shall have arrived at the age of twenty-one years, and thereupon the Trustee shall transfer, deliver and distribute the principal or corpus of the Trust Estate to the then living children of my said daughter, Annie E. Delaney, share and share alike. Upon the death of any of the children of my said daughter, Annie E. Delaney, before the distribution of the principal or corpus of the Trust Estate (that is before the youngest of said children shall have arrived at the age of twenty-one years), such child's share of the net income of the Trust Estate shall go to augment the share apportionable to the others.'

The daughter Annie, as plaintiff here, attacks the will as invalid and concludes her complaint with this prayer:

'Wherefore, petitioner prays that judgment be entered as follows:

'1. Ascertaining and declaring the rights of all persons in and to said estate and all interests therein and to whom distribution thereof should be made;

'2. Adjudging that petitioner is one of the heirs at law of the decedent and, as such, entitled to have distributed to her, free and clear of the trust contained in the will of decedent, one-half of the residue of the estate of decedent;

'3. Adjudging that the trust contained in the will of decedent is void under the statutes of the State of Montana;

'4. For such other and further relief as to the Court may seem equitable, proper and just.'

The court on its own motion appointed Peter M. Rigg, Esquire, counsel for the three minor children of Annie Delaney.

By written stipulation the cause was 'submitted to the court upon the pleadings of the respective parties and all the court files, papers and records in said estate.' Briefs were filed and after consideration the court made findings to the effect that Annie E. Delaney and Eva I. Melvin were the only living children of Thomas P. Strode, the testator, and his only heirs at law, declared the will in all respects valid and binding and ordered the distribution of the estate made in accordance with the terms thereof. Judgment was made and entered accordingly and the plaintiff appealed.

The three specifications of error are argued together under five subdivisions. Plaintiff's principal contention is that the trust set up by the Strode will 'is a trust to convey and is therefore invalid under the statutes of Montana.' This contention is predicated upon the fact that our statutes on the two separate subjects of trusts and wills were all adopted from the statutes of California and that the highest court of that state in the two cases of In re Fair's Estate, 132 Cal. 523, 60 P. 442, and 64 P. 1000, 84 Am.St.Rep. 70, and later California decisions on the same subject following the rule laid down in the Fair Estate cases, construed the California statutes which we adopted, contrary to the holdings of the trial court in the case at bar. It will thus be seen that the alleged invalidity of the Strode will is not grounded upon the construction of Montana statutes by Montana courts but upon the construction by California courts of statutes that Montana 'borrowed' from California. While this court has always shown high regard for the decisions of the Supreme Court of California, we have never blindly followed them. In this case, however, we will carefully consider the two Fair Estate cases and other California decisions which followed them. The first Fair Estate case, 60 P. 442, was decided February 26, 1900. By a four to three majority the Fair will was upheld; on rehearing the will was declared invalid by a four to three decision, one justice on the rehearing having reversed his former position. That case was followed by the California courts in a number of subsequent cases involving substantially the same question. We have carefully reviewed and analyzed the two Fair Estate cases and are satisfied that the first decision is clearly sustained by the better reasoning; that all questions of law stated therein are forcefully presented and grounded on citations that represent the clear preponderance of authority, and we decline to follow the California rule for the reasons just stated, and for the further reasons, first, the rule laid down in the second Fair Estate case is in direct conflict with a number of our statutory provisions even though we adopted such statutes from California. Among these statutory provisions is section 7016, Revised Codes, California's Civil Code, § 1317: 'A will is to be construed according to the intention of the testator. Where his intention cannot have effect to its full extent, it must have effect as far as possible.' This rule of the construction of wills as to the testator's intention is found in our earliest judicial history. Chief Justice Marshall expressed it in forceful language in the early case of Smith v. Bell, 6 Pet. 68, 74, 8 L.Ed. 322, as follows: 'The first and great rule in the exposition of wills, to which all other rules must bend, is, that the intention of the testator, expressed in his will, shall prevail * * *,' and the Marshall expressed harked back to the days of Blackstone. This rule has never been varied nor modified in this jurisdiction. Following along in the wake of and adding breadth and force to section 7016 is section 7017 which provides: 'In cases of uncertainty arising upon the face of a will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the will, taking into view the circumstances under which it was made, exclusive of his oral declarations.' Then we have section 7020 requiring all parts of a will 'to be construed in relation to each other, so as, if possible, to form one consistent whole * * *.' Further along in Chapter 78 of our Civil Code we have section 7022 which provides in effect that if any part of a will be ambiguous or doubtful it may be explained by reference to another part thereof. Then section 7025 provides: 'Of two modes of interpreting a will, that is to be preferred which will prevent a total intestacy.' Montana statutes were reviewed at length by the Circuit Court of Appeals of the Ninth Circuit in the recent case of Blacker v. Thatcher, 145 F.2d 255, 259, 158 A.L.R. 1; Id., 324 U.S. 848, 65 S.Ct. 686, 89 L.Ed. 1409, where it is said:

'Numerous provisions dealing with the interpretation of wills are contained in the Montana statutes. Of two modes of interpretation, that is to be preferred which will...