No. 86-440 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

IN THE MATTER OF THE ESTATE OF 

MERLE K. FLASTED, Deceased. 

APPEAL FROM: District Court of the Sixteenth Judicial District, 

In and for the County of Carter, 

The Honorable A. B. Martin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Huntley & Eakin; Gene Huntley argued for Roberta 

Flasted, Baker, Montana 

For Respondent: 

Peterson, Schofield & Leckie; K. D. Peterson argued 

for Everett Flasted, Billings, Montana 

Dorsey & Whitney; Richard A. Brekke argued for Estate 

and Personal Representative, Billings, Montana 

Submitted: June 4, 1987 

Decided: August 17, 1987 

Filed: AUG 1 7 198% 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Everette Flasted appeals a Carter County District Court 

order insofar as that order awards certain assets from the 

estate of his late brother, Merle Flasted, to Merle's widow, 

Roberta. Roberta cross-appeals raising four issues. The 

issues on appeal are: (1) whether the lower court properly 

ruled that Merle's will's bequest to Roberta of "any cash and 

savings that I may have at the time of my death" included (a) 

a $150,000 promissory note and the mortgage securing that 

note; (b) a diamond ring; (c) the partnership interest in 

Nuclear Ltd. and shares of corporate stock; (2) whether the 

court properly ruled that the "cash and savings" clause did 

not include decedent's patronage and capital credits in 

certain cooperatives; (3) whether the court erred in 

refusing to award the homestead allowance and exempt property 

to Roberta; (4) whether the court erred in denying Roberta's 

motion for judgment on the pleadings; (5) whether the court 

erred in relying upon parole evidence in construing an 

agreement between Everette and Roberta. We affirm. 

We set forth only those facts necessary to the resolution of this appeal. In December 1974, Merle Flasted executed the will which gives rise to this dispute. That will 

provided, in pertinent part: 

[I] give to [my wife, Roberta Flasted,] 

any cash and savings that I may have at 

the time of my death. I also give to my 

wife one hundred head of cows from the 

herd that I own on my death. 

I also provide that . . . she may 

stay on the home at the ranch for a 

period of three (3) years after my death 

and may keep the . . . one hundred head 

of cows for that three year period on the 

ranch . . . 
I give, devise and bequeath to my 

brother, Everett Flasted, all the rest, 

residue and remainder of my estate, 

including but not limited to my ranch and 

any remaining livestock not previously 

bequeathed, and machinery. 

I hereby nominate and appoint my 

brother, Everett Flasted, as executor of 

this my Last Will and Testament . . . 

At the time of executing his will, Merle consulted with an 

attorney who made notes reflecting Merle's testamentary 

wishes. The District Court summarized those notes as: 

[Merle] did not want the ranch to go to 

his wife or her family but wanted the 

ranch to stay in his family and go to his 

brother. He wanted his wife [and another 

devisee] to each receive 100 head of 

COWS. All remaining livestock and 

machinery was to go to Everett. 

He stated that 100 cows and savings 

would take care of his wife. [The 

attorney's] notes identify the savings as 

$40-50,000 in a joint account. 

In May 1983, Merle died and, upon her discovery of 

Merle's will, Roberta arranged for she and Everette to meet 

with Gene Huntley, a Baker, Montana, attorney who had 

previously represented Merle. The stated purpose of the trip 

was to "read the will." While traveling to meet with Mr. 

Huntley, Roberta and Everette discussed the fact that under 

the will she was to receive 100 cows. Merle did not have 100 

cows at the time of his death so Everette suggested that 

Roberta receive an equivalent value of sheep. 

Upon meeting with Mr. Huntley on May 19, 1983, discussions were held relevant to the estate's assets. Mr. Huntley 

advised Roberta several times that she could contest the 

will. Ultimately, Mr. Huntley drafted an agreement which 

both Everette and Roberta signed. The agreement provided in 

part: 
[Rloberta Flasted was devised the cash 

and savings of the decedent . . . now 

Roberta Flasted has rights to the property of the estate by reason of being the 

widow of Merle . . . the parties desire 

to adjust their rights to reflect what 

they would believe would be the desires 

of the decedent. Now, Therefore, it is 

hereby agreed . . . Roberta will receive about 900 head of 

ewes, . . . the wool crop for the years 

1982 and 1983 . . . the right to live in 

the home on the ranch . . . for the rest 

of her natural life . . . --- all of the 

vehicles belonging -- to the decedent at the 

time of his death except the pickup truck 

which was used for the ranch operation. 

Everett will receive . . . the rest, 

residue and remainder of the decedent's 

estate, except the portion here agreed to 

go to Roberta . . . In consideration of 

the 

- all 

- the 

and 

foregoing Roberta Flasted gives - up 

-- of her rights to claim any share of 

decedent's estaG other than the cash 

savings of the decedent and that part 

of his estate specified in this agreement. Everett Flasted agrees to give up 

his claims to any part of the estate 

herein agreed to be conveyed to Roberta. 

(Emphasis added.) 

Shortly after Merle's death, Roberta received approximately $209,000 from checking accounts, certificates of 

deposit, savings certificates and stock which she had previously held in joint tenancy with Merle. The District Court 

appointed Everette personal representative of the estate 

after his June 1983 application and admitted Merle's will to 

informal probate. In May 1984, Roberta moved the court to 

grant her the homestead and family allowances provided for at 

5 72-2-801, and -803, MCA. In August 1984, the court denied 

Roberta both the homestead and family allowance on the basis 

that she had waived the same in the May 1983 agreement. At 

that time, the court also granted Roberta's motion for 
supervised administration of the estate. Roberta moved under 

Rule 59 (g) , M.R.Civ.P., for the court to reconsider its 

denial of the homestead and family allowances. The court 

took no action on that motion. 

In April 1986, the Carter County District Court held a 

bench trial to resolve the issues relative to the construction of the will and the May 1983 agreement. Roberta again 

asserted her right to the homestead allowance and, for the 

first time, claimed exempt property under 5 72-2-802, MCA. 

She did not pursue her claim for the family allowance. The 

court admitted parol evidence relative to the parties' intent 

as to the agreement. 

In July 1986, the court entered its findings and conclusions ruling that (1) as "cash and savings" under the 

will and agreement, Roberta would receive a $150,000 promissory note and mortgage, a diamond ring, stock shares and a 

partnership interest; (2) under that same clause, Roberta 

would not receive patronage and cooperative credits in Range 

Telephone, Southeast Electric and Farmer's Cooperative; 

(3) Roberta could not successfully claim the homestead 

allowance because she had failed to timely appeal the court's 

earlier adverse ruling on that issue; (4) under the May 1983 

agreement, Roberta waived her rights to the homestead allowance and exempt property; and (5) Roberta would receive a car 

(but not ranch machinery, a snowmobile or an airplane) under 

the agreement clause which provided her with all of Merle's 

vehicles except a pickup. The court relied on parol evidence 

as a basis for its fifth ruling immediately above. This 

appeal followed. 

The first issue is the court's interpretation of what 

constitutes "cash and savings" under the agreement and the 

will. The court found, and we agree, that "the words 'cash 

and savings1 used in the agreement did not alter the will and 
should be construed -- in the context - of their meaning -- in the 

will." (Emphasis added.) This is clearly correct, given the 

agreement's recitation that the parties desired to adjust 

their rights to reflect what they believed were the decedent's desires. 

Montana statutes relevant to the construction of wills 

include § 72-11-302, MCA, which provides: 

The words of a will are to be taken in 

their ordinary and grammatical sense, 

unless a clear intention to use them in 

another sense can be collected and that 

other can be ascertained. 

and § 72-11-304, MCA, which provides: 

(1) When the terms of an agreement have 

been reduced to writing by the parties, 

it is to be considered as containing all 

those terms, and therefore there can be 

between the parties and their representatives or successors in interest no evidence of the terms of the agreement other 

than the contents of the writing, except 

in the following cases: 

(a) where a mistake or imperfection of 

the writing is put in issue by the 

pleadings; 

(b) where the validity of the agreement 

is the fact in dispute. 

(2) But this section does not exclude 

other evidence of the circumstances under 

which the agreement was made or to which 

it relates, as defined in 1-4-102, or to 

explain an extrinsic ambiguity or to 

establish illegality or fraud. 

(3) The term agreement includes deed and 

wills, as well as contracts between 

parties. 

We agree with the District Court that the circumstances 

surrounding the will must be looked at to construe the "cash 
and savings" clause. The court opted to construe that clause 

broadly, reasoning that Merle, at the time of the will and in 

subsequent years, caused money and property to be owned 

jointly with Roberta. Thus, he clearly intended to amply 

provide for his wife. The court also cited the attorney's 

notes which indicated that Merle wanted the ranch to stay in 

his family. Given those notes, the court construed the 

residuary clause (which granted Everette the remainder of the 

estate "including but not limited to my ranch and any livestock and machinery" ) to include all personal property 

connected with the ranch. The court concluded that the 

promissory note should pass to Roberta under the "cash and 

savings" clause given the broad interpretation of the clause 

and that the note was not ranch property. We agree with the 

court's reasoning and affirm its decision on this point. We 

add that the loan underlying the promissory note was derived 

principally from certificates of deposit jointly owned by 

Roberta and Merle. At least before the loan, Merle intended 

the money now embodied in the promissory note to be 

Roberta's. 

Under the peculiar circumstances of this case, we also 

affirm the court's decision that the diamond ring, the partnership interest and the corporate shares should pass to 

Roberta under the "cash and savings" clause. The circumstances indicate that this clause should be construed 

broadly. 

We also agree that the patronage and capital credits in 

Southeast Electric Cooperative, Range Telephone Cooperative 

and Farmer's Cooperative, should - not pass to Roberta under 

the "cash and savings" clause. We agree that those were 

ranch assets connected with the ranch business. The circumstances indicate that Merle intended that ranch assets should 

pass to Everette. 
The next issue is whether the court erred in refusing 

to award the homestead allowance and exempt property to 

Roberta. We agree with the District Court that Roberta 

waived her rights (to exempt property and the homestead 

allowance) through the May agreement which provided: 

[Rloberta has rights to the property of 

the estate by reason of being the widow 

of Merle . . . In consideration of the 

foregoing Roberta Flasted gives up all 

her rights to claim any share of the 

decedent's estate other than the cash and 

savings of the decedent and that part of 

his estate specified in this agreement. 

Neither the homestead allowance nor exempt property were 

specified by the agreement as going to Roberta. Roberta 

argues that at the time of the agreement she had no knowledge 

of the homestead allowance or of exempt property and, therefore, under § 72-2-102, MCA, she could not have waived those 

rights. That statute provides: 

The right of election of a surviving 

spouse and the rights of the surviving 

spouse to homestead allowance, exempt 

property, and family allowance or any of 

them may be waived, wholly or partially, 

before or after marriage, by a written 

contract, agreement, or waiver signed by 

the party waiving after fair disclosure. 

Unless it provides to the contrary, a 

waiver of "all rights" (or equivalent 

language) in the property or estate of a 

present or prospective spouse or a complete property settlement entered into 

after or in anticipation of separation or 

divorce is a waiver of all rights to 

elective share, homestead allowance, 

exempt property, and family allowance by 

each spouse in the property of the other 

and a renunciation by each of all benefits which would otherwise pass to him 

from the other by intestate succession or 

by virtue of the provisions of any will 
executed before the waiver or property 

settlement. 

Roberta claims that because there was no fair disclosure she 

could not waive her rights. We hold that under the peculiar 

circumstances of this case Roberta did waive the homestead 

allowance and exempt property. Those circumstances are that 

(1) the agreement acknowledges that Roberta had rights to 

the property of the estate by reason of being the widow of 

Merle Flasted; (2) Mr. Huntley, an able and experienced 

attorney, was representing Roberta at the time of the agreement; (3) Mr. Huntley drafted the agreement; (4) Everette 

was not represented by Mr. Huntley or other counsel at the 

meeting where the agreement was executed; (5) there is no 

evidence that Everette, a rancher, was aware of the homestead 

allowance or of exempt property so that he could advise 

Roberta of her rights. Parenthetically, we note that the 

court found that Mr. Huntley was representing Roberta at the 

time of the agreement. Roberta has not raised that finding 

as an issue on appeal. Moreover, 5 28-3-206, MCA, provides 

that a contractual ambiguity should be interpreted against 

the party causing the uncertainty, Roberta in this case. We 

hold that Roberta did waive the rights in question. We need 

not address whether Roberta properly pursued the appeal of 

this issue. 

The next issue is whether the court erred in denying 

Roberta's motion for judgment on the pleadings. Roberta 

moved for judgment on the pleadings part-way through trial, 

after sixteen stipulations had been read into the record and 

two witnesses had testified for approximately 140 pages of 

transcript. Rule 12 (c) , M. R. Civ. P., provides that a party 

may move for judgment on the pleadings within such time --- as 

-- not to delay the trial. Given the tardiness of the motion, 

we uphold the court's denial of the motion. 
The last issue is whether the court erred in relying 

upon parol evidence to construe one provision of the May 1983 

agreement. That clause provided that Roberta would receive 

"all of the vehicles belonging to the decedent at the time of 

his death except the pickup truck. . . ." The court, relying 

on parol evidence of the parties' intent, held that Roberta 

would receive a Cadillac car but not ranch vehicles, a snowmobile or an airplane. Section 28-2-905, MCA, provides: 

(1) Whenever the terms of an agreement 

have been reduced to writing by the 

parties, it is to be considered as containing all those terms. Therefore, 

there can be between the parties and 

their representatives or successors in 

interest no evidence of the terms of the 

agreement other than the contents of the 

writing except in the following cases: 

(a) when a mistake or imperfection of 

the writing is put in issue by the 

pleadings; 

(b) when the validity of the agreement 

is the fact in dispute. 

(2) This section does not exclude other 

evidence of the circumstances under which 

the agreement was made or to which it 

relates, as described in 1-4-102, or 

other evidence to explain an extrinsic 

ambiguity or to establish illegality or 

fraud. 

(3) The term "agreement", for the purposes of this section, includes deed and 

wills as well as contracts between 

parties. 

This Court has stated that: 

Ambiguity only exists when a contract 

taken - as - a whole in its wording or phraseology is reasonably subject to two 

different interpretations. (Emphasis 

added. ) 
Martin v. Community Gas & Oil Co., Inc. (~ont. 1983), 668 

P.2d 243, 245, 40 St.Rep. 1385, 1388. We hold that this 

agreement taken as a whole, is ambiguous. The agreement 

awards Roberta "all vehicles" (with the exception of a pickup) t which phrase is in itself somewhat ambiguous. 

The agreement also states that "the parties desire to 

adjust their rights to reflect what they would believe would 

be the desires of the decedent." The decedent's desires, as 

expressed in the will, were that Everette would receive the 

decedent's machinery. Therefore, the agreement intends on 

the one hand that Roberta receive all vehicles with one 

exception, but on the other hand that Everette would receive 

the machinery. The District Court properly relied on par01 

evidence to interpret the ambiguous "all vehicles" clause. 

Roberta does not argue that there is insufficient evidence to 

support the court's construction of that clause. 

Affirmed . 

Justices / /