No. 12432 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN THE MATTER OF THE ESTATE OF 

RUDY G. HERZOG, Deceased, 

FLORENCE HERZOG, 

Petitioner and Appellant, 

JOSEPH B. GARY, Executor of the Estate 

of RUDY G. HERZOG, Deceased, 

Defendant and Respondent. 

Appeal from: District Court of the Eighteenth Judicial District, 

Honorable W. W. Lessley, Judge presiding. 

Counsel of Record : 

For Appellant : 

Berg, 0' Connell , Angel and Andriolo, Bozeman, Montana. 

Ben 4E. Berg argued, Bozeman, Montana. 

For Respondent : 

Brown and Gilbert, Bozeman, Montana. 

Landoe and Gary, Bozeman, Montana. 

Joseph B. Gary argued, Bozeman, Montana. 

Submitted: May 29, 1973 

Decided : JUL 2 3 1973 

Filed : JuL 2 3 1973 
PJr.Justice Gene B. Daly delivered the Opinion of the Court. 

Petitioner and appellant, Florence Herzog, brings this 

appeal from a summary judgment entered by the district court of 

Gallatin County denying the relief sought in her petition for 

determination of heirship. 

Florence T. Herzog and Rudy G. Herzog, deceased, executed 

an ante-nuptial agreement on August 18, 1970, and were married 

the same day. The Herzogs were married but estranged when Rudy 

Herzog died, fourteen months later. The ante-nuptial agreement 

provided that the wife would be made beneficiary of a life insurance policy in the amount of $20,000 so long as the parties 

were married; that the property and earnings of each spouse were 

to remain in the same ownership status as before the marriage; 

and, that in the event of a divorce a payment of $400 per month 

to the wife for a stated period would be a full and complete 

settlement for all claims arising out of the divorce. The agreement concluded with the statement: 

"It is understood and agreed that the provisions 

herein provided for in this sub-paragraph [the 

divorce settlement] are contemplated to make the 

marriage a solid and lasting marriage, and that 

the hopes and aspirations of the Parties are to 

this effect, rather than a divorce, and a dispute over alimony support, dower rights and 

other claims that can arise as a result of a 

divorce between married persons. 

"It is further agreed that nothing herein shall 

be construed to be a bar by either Party giving 

to the other Party any property of which he or 

she may be possessed to the other Party by Will 

or otherwise. It is understood that each Party 

to this Agreement shall control his or her own 

personal estate described herein, and do with 

the properties whatever he or she wishes and 

wills. " 

The estate was appraised at $30,130 in real property, and 

$307,336.05 in personal property, the principal asset being stock 

in a business known as Rudy's Distributing Company. Decedent 

Herzog's will was admitted to probate on November 3, 1971, and 
by its terms the bulk of the estate was left to the decedent's 

five minor children by a previous marriage. The third paragraph 

of the will stated: 

"I have entered into an anlienuptial agreement with 

my wife, Florence Herzog, and we are estranged, 

and therefore I do not leave any property, real or 

personal, to my wife, Florence Herzog, otherwise 

than provided for in the ante-nuptial agreement." 

On August 17, 1972, Florence Herzog filed a petition to 

determine heirship. Hearing was held and summary judgment was 

entered upon the motion of the executor. The district court 

stated in its order that no filing of renunciation or contest had 

been made by the petitioner within the six months period alloted 

by statute. 

Before discussing the issues presented on this appeal, 

we wish to make it clear that no effort has been made by Mrs. 

Herzog to set aside or challenge the ante-nuptial agreement itself and the cause was tried in the district court solely with 

reference to the provisions of the probate law. We shall deal 

with the issues within that framework, and call attention to 

the fact that the principles here announced apply only to the 

law of the case as set forth and do not concern the effect or 

legality of the ante-nuptial agreement itself as that issue was 

never raised. 

With this admonition we proceed to the discussion of 

the four issues raised by Florence Herzog on this appeal: 

(1) The court erred in holding that petitioner must 

renounce the benefits of her husband's will when it expressly 

disinherits her. 

(2) The court erred in holding that petitioner must 

contest her husband's will in order to establish her rights of 

inheritance. 

(3) The court erred in concluding, if it did, that section 
91-3801, R.C.M. 1947, precludes the widow's petition. 

(4) The court erred in concluding, if it did, that 

petitioner by accepting the benefits of the ante-nuptial agreement waived her rights in the estate of Rudy G. Herzog. 

In the first issue we find the statement of appellant 

that the will "expressly disinherits her" to be incorrect. The 

heretofore quoted third paragraph of decedent's will is not an 

express disinheritance. The paragraph makes reference to the 

ante-nuptial agreement entered into by decedent and his wife under 

which she was to be made beneficiary of a $20,000 life insurance 

policy. 

By application of the doctrine of incorporation by reference, the third paragraph of the will operates to include, as an 

effective bequest within the provisions of the will, $20,000 to 

be paid out of the proceeds of a specific life insurance policy. 

Few cases have been decided in Montana involving this 

principle of law, as to wills, which originated in early English 

common law. As it has developed in modern application, the doctrine of incorporation by reference enables the admission into 

probate of certain nontestamentary writings, executed without 

statutory formalities. However, in order to limit the danger of 

fraud, certain conditions have been established by practice and 

precedent. The California Appeals Court, in In re Estate of 

Foxworth, 240 C.A.2d 784, 50 Cal.Rptr. 237, 240, enumerated the 

following conditions: 

"It has also been said that the requisites of 

incorporation by reference are (1) the extrinsic 

paper must be in existence at the time the will 

makes reference to it; (2) the will must identify 

the paper by a sufficiently certain description, 

and extrinsic evidence is admissible as: an aid to 

such identification; and (3) it must appear that 

the testator intended to incorporate the paper for 

the purpose of carrying out his testamentary desires. 

Iciting treatise and cases]." 
See also: 144 A.L.R. 57 Arn.Jur., Wills, SS 233-242, 

94 C.J.S. Wills S 163. 

We find the writing referred to in the third paragraph of 

the will, that is, the ante-nuptial agreement, was in existence 

at the time the will was executed, that it was reasonably identified within the terms of the will, and that it appears to have 

been testator Herzog's intention to incorporate that agreement 

within the terms of his will to carry out his testamentary wishes. 

Because the provision in the ante-nuptial agreement 

concerning the insurance policy was incorporated by reference 

into the will, the $20,000 proceeds of that policy became a bequest under the will. The estate must satisfy that bequest and 

the fact it is paid out of insurance proceeds which are generally 

not part of the estate is immaterial. This $20,000 obligation 

by reason of a bequest in the will would remain, regardless of 

lapse in the policy or change of beneficiary, and any possible 

contract remedy Mrs. Herzog might have had in those events. 

Although it appears from the record that the executor 

failed to recognize and pursue the appropriate remedy under an 

application of the doctrine of incorporation by reference, nevertheless both the will and the ante-nuptial agreement were properly before the court at the time the summary judgment was granted. 

Section 22-107, R.C.M. 1947, provides: 

"Every devise or bequest to her by her husband's 

will shall bar a widow's dower in his lands 

and her share in his personal estate unless 

otherwise expressed in the will; but she may elect 

whether she will take under the provisions for 

her in the will of her deceased husband or will 

renounce the benefit of such provisions for her, 

and take her dower in the lands and her share in 

the personal estate under the succession statutes, 

as if there had been no will, but not in excess 

of two-thirds (2/3) of the husband's net estate, 

real and personal, after the payment of creditors' 

claims, expenses of administration and any and 

all taxes, including state and federal inheritance and estate taxes." 
Since the provisions of the ante-nuptial agreement were 

incorporated by reference into the will and amounted to a bequest 

under the will, the provisions of section 22-107, R.C.M. 1947, are 

applicable, i.e. the widow, Florence Herzog, had the statutory 

right to renounce the will. However, since it appears from the 

record to be a stipulated fact that she did not file a written 

renunciation within six months, as required under section 22-108, 

R.C.M. 1947, the district court correctly held that she cannot 

now defeat the provisions of the will. 

In the second and third issues we find the district court 

correctly held the six months statutory limitation for contesting 

the will as stated in section 91-1101, R.C.M. 1947, had expired. 

However, this is not a determinative issue here because it does 

not appear that the validity of the will was ever at issue. Appellant is correct in her contention that it was never necessary 

for her to contest the will as invalid to share in the estate 

through dower and succession, rather than as provided in the will. 

But, it was necessary to renounce the valid will within the time 

limitation and in the form prescribed by section 22-108, R.C.M. 

1947. The trial court was correct in entering summary judgment 

concerning the petition for determination of heirship as it presented no disputed issues of fact, and the issues of law therein 

were correctly decided by the court, i.e., the will was valid 

and properly admitted into probate, and the alloted time for renunciation under section 22-108, R.C.M. 1947, had expired. 

The fourth issue concerning a waiver by reason of the 

ante-nuptial agreement is also outside the issue of the case. 

Appellant cites sound authority for the principle that a widow's 

statutory rights of dower and inheritance by succession can be 

waived by ante-nuptial agreement only upon words expressly, or 

by clear implication, declaring that it is the express intention 
of the wife to do so. However, the determining factor in the 

instant case is not the operation of the ante-nuptial agreement 

as a waiver, but rather as a bequest through incorporation by 

reference into the will. 

The judgment of the 

1 / Chief Justice