Stapleton v. DeVries

• Decision Date: 27 May 1975
• Docket Number: No. 12849,12849
• Citation: 167 Mont. 108,535 P.2d 1267
• Parties: Louise STAPLETON et al., Plaintiffs and Respondents, v. Beverly A. DeVRIES et al., Defendants and Appellants.
• Court: Montana Supreme Court

Page 1267

535 P.2d 1267

167 Mont. 108

Louise STAPLETON et al., Plaintiffs and Respondents, v. Beverly A. DeVRIES et al., Defendants and Appellants.

No. 12849.

Supreme Court of Montana.

May 27, 1975.

Hibbs, Sweeney & Colberg, Maurice R. Colberg, Jr. (argued), Billings, for defendants and appellants.

Fillner, Snyder & Mudd, Russel K. Fillner (argued), Billings, for plaintiffs and respondents.

DALY, Justice.

Defendants Beverly A. DeVries, individually and as executrix of the estate of Amanda DeVries, deceased; Emma R. Storer; Herman DeVries, Jr.; Loretta M. Kilwein; Gladys J. Weimer; and Marcella K. Buckholz bring this appeal from a judgment of the district court, Carbon County, awarding plaintiffs Louise Stapleton; Dorothy Pihlaja; Ethel Cestnik; and Ruth Johnson, the children of Herman DeVries, deceased, from a prior marriage, each an equal one-tenth share of the estate of Amanda DeVries.

Herman DeVries was married twice. As issue of the first marriage were born the plaintiffs. As issue of the marriage between Herman and Amanda were born the defendants. Herman died June 14, 1951. In his will, he stated:

'I give, devise and bequeath to my beloved wife, Amanda DeVries, all the balance, residue and remainder of my property of whatever nature, kind or character which I may own at the time of my death to have and to hold as her sole and separate property. I do this with the knowledge that she will be fair and equitable to all of my children, the issue of myself and my former wife as well as the issue of herself and myself.'

On July 15, 1953, in its decree, the district court distributed Herman's estate to his widow Amanda 'as her sole and separate property, in accordance with the Last Will and Testament of (Herman Devries).'

Amanda died on November 8, 1971, leaving a will which was admitted to probate. It left all her property to her children, making no mention of plaintiffs. They contested Amanda's will. Their petition to contest the will was dismissed on the ground that they were not 'interested persons' under the statute.

Plaintiffs then filed a complaint alleging, in the alternative that Herman created a trust for their benefit, or Amanda had contracted to leave a portion of her property to them. On the basis of depositions taken of the four contestants and their proposed witnesses, and on the basis of the estate files of Herman and Amanda, the district court granted summary judgment finding a trust created by Herman for the benefit of his children by previous marriage, the plaintiffs.

Defendants present three issues for review:

1. Was a constructive trust created for the benefit of plaintiffs in the will of Herman DeVries, deceased?

2. Was there a contract, promise of agreement, whereby Amanda DeVries agreed to will a portion of her property to plaintiffs?

3. If there was either such trust or contract, are the claims of plaintiffs barred by statutes of limitation or laches?

Defendants argue there was no constructive trust created by Herman DeVries' will in favor of plaintiffs. Plaintiffs argue that such a trust was created and that the second article of Herman's will, when read in light of section 91-201, R.C.M. 1947, which provides that a will is to be construed according to the intent of the testator, creates a constructive trust in favor of plaintiffs as to their share of the estate.

The second article in Herman DeVries' will reads:

'I give, devise and bequeath to my beloved wife, Amanda DeVries, all the balance, residue and remainder of my property * * * with the knowledge that she will be fair and equitable to all of my children, the issue of myself and my former wife, as well as the issue of herself and myself.'

This Court in construing the second article finds that there was no trust created for the benefit of the plaintiffs. The will is clear on its face. It gives to Amanda DeVries, outright all of the property owned by Herman DeVries at the time of his death. The remaining language 'with the knowledge that she will be fair and equitable to all of my children, the issue of myself and my former wife, as well as the issue of herself and myself.' is merely precatory language, and does not create a trust for the benefit of plaintiffs.

Both defendants and plaintiffs cite numerous cases to support their arguments. We find these cases of little value. As stated in In re Sowash's Estate, 62 Cal.App. 512, 217 P. 123, 126:

'* * * the construction to be placed upon the instrument is of little value as a precedent in aid of the construction of another. And this is particularly true of cases involving the existence or nonexistence of a precatory trust; for previous decisions only served to illustrate the application of general rules of construction of wills, which, after all, is a matter of impression as to the maker's intention made upon the mind of a court considering the will itself with the circumstances surrounding its execution. Each case must of necessity, therefore, depend more or less upon its own peculiar facts.'

A Utah decision cited by defendants, Miller v. Walker Bank & Trust Company, 17 Utah 2d 88, 404 P.2d 675, 676, is very similar to the fact situation found here. The will of the decedent in that case provided in part:

'Second, I give, devise and bequeath to my beloved wife, Nettie Knudsen Miller, all of...