Montgomery v. Gilbert
| Decision Date | 21 March 1940 |
| Docket Number | 7874-7877. |
| Parties | MONTGOMERY v. GILBERT et al. (four cases). |
| Court | Montana Supreme Court |
As Modified on Denial of Rehearing May 22, 1940.
On Further Rehearing December 3, 1940.
Rehearing Denied Dec. 17, 1940.
Appeal from Fifth District Court, Beaverhead County; W. L. Ford Judge.
Action by George Hugh Montgomery, action by William George Montgomery, and two actions by James Kenneth Montgomery against J. H. Gilbert and others involving alleged mismanagement of the estate of William Montgomery, deceased by the executor J. H. Gilbert. The cases were consolidated for trial in the district court. From adverse judgments plaintiffs appeal.
Judgments modified and, as modified, affirmed.
S. P. Wilson, of Deer Lodge, J. E. Kelly, of Dillon, and Maury & Shone, of Butte, for appellants.
R. F. Gaines, of Butte, J. A. Stagg, of Anaconda, Gunn, Rash, Hall & Gunn, of Helena, and James A. Poore and Gilbert, Gilbert & McFadden, all of Butte, for respondents.
This appeal involves four consolidated cases which were likewise consolidated for trial in the district court for Beaverhead county. The plaintiffs are the sons of William Montgomery, deceased, and were named in his will as beneficiaries. Montgomery died on October 24, 1919, and complaints were filed in these actions as follows: By George Hugh Montgomery on June 15, 1935, he having become 21 years old on February 26, 1931; by William George Montgomery on March 21, 1931, he having become 21 years of age on September 25, 1918, before the death of his father; by James Kenneth Montgomery, on August 18, 1931, two actions, he having become 21 years of age on August 26, 1926. The actions involve alleged mismanagement of the estate by the executor, J. H. Gilbert, one of the defendants. The final account of the executor was allowed and approved on February 23, 1926. Inasmuch as the complaints to some extent question the actions of the executor as being without authority, it is necessary that such portions of the will as are relevant to the cases be set forth.
The defendants Margaret Mary Montgomery Tucker and Helen Cecelia Montgomery Collins are daughters of the deceased, and Cecelia L. Montgomery is his widow. All of these defendants filed disclaimers prior to trial. The will of Montgomery was admitted to probate on November 25, 1919, at which time J. H. Gilbert was appointed executor under the will, and was discharged as such on final accounting February 23, 1926. The will of Montgomery was executed on June 6, 1916.
For a number of years Montgomery operated a large ranch in Beaverhead county and bought and sold cattle on an extensive scale. The provisions of his will, so far as they relate to this action, are as follows:
"First: I direct that my executors, as soon as they conveniently can, pay all my just debts and funeral expenses. In this connection it is my will and I direct that if there be not sufficient funds on hand at my death to pay my said debts, that my executors, in their judgment, may sell such of my personal property as they deem best, either with or without an order of court, or if, in their judgment, so selling said property will hamper them in the conduct of said business as hereinafter directed, they are hereby authorized and directed to borrow such sums of money as may be necessary to pay said debts, and the payment of such loans is hereby made a charge against my estate, both real and personal, and the executors are authorized to execute all necessary mortgages or other instruments as may be required to secure the same.
Second: I give, devise, and bequeath one-third (1/3) of all my property, real and personal, to my wife, Cecelia L. Montgomery, in lieu of dower and her rights by succession. It is my will that my said wife permit her portion of the estate to remain in the hands of my executors, and after their discharge in the hands of the trustees hereinafter named, to the end that said property may be managed and operated as a whole and in the manner I have operated the same, until my youngest son becomes of age as hereinafter provided; she receiving annually one-third (1/3) of the net income of my whole estate if she shall demand same.
Third: I give and devise to my son, James Kenneth Montgomery, all that certain piece or parcel of land known as the "Old Home Ranch," consisting of about four thousand (4,000) acres, located about eight miles Southwest of the Town of Wisdom, Montana, the dwelling upon which ranch is situated in section thirty-one (31), township three (3) south, range fifteen (15) West, M. M., together with all water rights thereto belonging, provided, however, that the said James Kenneth Montgomery shall not have the enjoyment or possession of the above devised real estate until my youngest son shall become of lawful age and this devise is also subject to the several bequests hereinafter made to each of my daughters.
Fourth: I give and devise to my son William George Montgomery, all that certain piece or parcel of land known as the present home ranch, consisting of about four thousand two hundred (4,200) acres, and located about four and one-quarter (4 1/2) miles Southwest of Wisdom, Montana, together with all water rights belonging thereto, provided, however, that the said William George Montgomery shall not have the enjoyment or possession of the said property until my youngest son shall become lawful age, and this devise is also subject to the several bequests hereinafter made to each of my daughters.
Fifth: I give and devise to my son, George Hugh Montgomery, all that certain piece or parcel of land known as the "Wisdom Ranch," composed of the Ellis Ranch, the Ajax Pasture, and the Schultz Ranch, making a total of about two thousand seven hundred and twenty (2720) acres, and all water rights belonging thereto, and I also give and devise to my said son, George Hugh Montgomery, all the real estate owned by me in the town of Wisdom, Montana, provided, however, that the said George Hugh Montgomery, shall not have the enjoyment or possession of the said property until my youngest son shall become of lawful age and this devise is also subject to the several bequests hereinafter made to each of my daughters.
Sixth: I give and bequeath to each of my daughters, Margaret Mary Montgomery, Helen Cecelia Montgomery, Francis Elizabeth Montgomery, and Anna Eliza Montgomery, the sum of ten thousand dollars ($10,000) to be paid to each at her arrival at the age of twenty-one (21) years, and in case there are not sufficient funds to pay the said sums to my daughters, then and in that event the balance of said sums shall be raised by a sale of or loan upon and a lien against the real estate and each of my sons shall contribute equally to raise such sums as may be necessary to pay said bequests as they become due. In the event the trust estate herein created shall end by the reason of the arrival of my youngest son at twenty-one (21) years of age and the said bequests, or any of them, in this paragraph provided, to my said daughters shall not have been paid as herein provided, I direct that my said trustees shall retain in their hands the amounts, in money, of the unpaid bequests to my said daughters as in this paragraph described and the said trustees shall invest said sums in such manner as they shall deem best, and the said bequests, together with the accumulations thereof shall be paid to my said daughters as herein provided.
Seventh: I give and bequeath all my bonds, stocks, money derived from insurance of my life and personal property, not herein otherwise disposed of or bequeathed, to my children, share and share alike.
Eighth: All the rest, residue and remainder of my estate, real and personal, of which I shall be seized and possessed or to which I shall be in any way entitled, at the time of my death, and including all the foregoing legacies and devises that shall lapse, or for any reason or cause fail to take effect under any of the provisions hereinbefore contained, I give, devise and bequeath to my children, share and share alike.
Ninth: I hereby make, nominate, constitute and appoint J. B. Poindexter and J. H. Gilbert, both of Dillon, Montana, to be executors of this my will and direct that they serve without bonds.
Tenth: I direct that my estate shall be settled as rapidly as possible, with due regard to the interest of my heirs and upon distribution, the said J. B. Poindexter and J. H. Gilbert shall become trustees of the property remaining. I direct that they shall hold and operate the same as such trustees for the benefit of my said heirs respectively in the same manner as I have heretofore managed said property and until my youngest son shall arrive at the age of twenty-one (21) years, and I give them full power to sell any part of the property as they shall deem best, and to borrow money for the operation of the business and execute such necessary instruments to secure such loans as may be required or deemed essential.
It is my will that my said sons, respectively, in so far as it does not interfere with their proper school work, be made foreman of the respective ranches left to them, and that they shall have such authority and direction thereof, and of the business connected therewith as my said trustees shall determine to be for their best interests, to the end that shall be familiar with his respective ranch and shall have had some experience in the handling of the property before he shall receive the same in his own right.
I further direct that my said wife shall be consulted by said trustees in their conduct of the said business.
In the event that my youngest son living at my death shall die before reaching the age of twenty-one years, then the trust...
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...An error in the trial court's findings in Montgomery v. Gilbert, supra, which findings appear verbatim in the opinion, page 257 et seq. of 111 Mont., page 619 of 108 P.2d concerning which from an analysis of the record there can no controversy, should be noted at this point. Finding 28 reci......