No. 12432 INTHE SUPREME COURT OF THE STATE OF MONTANA

INTHE 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:

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## 31973 Filed: 

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## 1973PJr.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-nuptialagreement onAugust 18, 1970,and were married the same day. The Herzogsweremarried 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 themarriage; and, that in the event of a divorce a payment of $400 per month to thewife 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 isunderstood and agreed that the provisions herein provided for in this sub-paragraph [the divorce settlement] are contemplated tomake the marriage a solid and lastingmarriage, 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 shemay be possessed to the other Party by Will or otherwise. It is understood that each Party to thisAgreement shall controlhis or her own personal estate described herein, and do with the properties whatever he or shewishes and wills.

### " The estatewas appraised at $30,130 in real property, and $307,336.05 inpersonal 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, andby its terms the bulk of the estatewas left to the decedent's fiveminor children by a previousmarriage. The third paragraph of the will stated: "Ihave entered into ananlienuptial agreementwith my wife, Florence Herzog, and we are estranged, and therefore 

### Ido not leave any property, real or personal, tomy wife,FlorenceHerzog, otherwise than provided for in the ante-nuptial agreement." On August 17, 1972,FlorenceHerzog 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 sixmonths period alloted by statute. Before discussing the issues presented on this appeal,

we wish to make it clear that no effort has beenmade 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 issuewas

never raised. With this admonitionwe 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 disinheritsher. (2) The court erred inholding that petitioner must contesther husband's will in order to establish her rights of inheritance. (3) The court erred in concluding, if it did, that section91-3801,R.C.M. 1947,precludes thewidow'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 issuewe find the statementof appellant that the will "expresslydisinheritsher" to be incorrect. The heretofore quoted third paragraph of decedent's will is not an expressdisinheritance. The paragraphmakes reference to the ante-nuptial agreement entered into by decedent and his wife under which shewas to be made beneficiary of a $20,000 life insurance policy. By application of the doctrine of incorporationby reference, the third paragraph of the will operates to include, as an effective bequest within the provisions of thewill, $20,000 to be paid out of the proceeds of a specific life insurancepolicy. 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 incorporationby reference enables the admission into probate of certainnontestamentarywritings, 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: "Ithas alsobeen said that the requisites of incorporationby reference are (1) the extrinsic paper must be in existence at the time the will makes reference to it; (2) thewillmust identify the paper by a sufficiently certain description, and extrinsic evidence is admissible as: an aid to such identification; and (3) itmust appear that the testator intended to incorporate the paper for the purpose of carrying out his testamentary desires. Iciting treatise and cases]."See also: 144A.L.R. 57 Arn.Jur., Wills,SS 233-242, 94 C.J.S. Wills S 163. We find thewriting referred to in the third paragraph of the will, that is, the ante-nuptial agreement,was in existence at the time thewill was executed, that itwas 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 $20,000proceeds of that policy became a bequest under thewill. 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 thewill 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: "Everydevise 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 shemay elect whether shewill take under the provisions for her in the will of her deceased husband or will renounce the benefit of suchprovisions for her, and take her dower in the lands and her share in the personal estate under the succession statutes, as if therehad 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 thewill and amounted to a bequest under the will, the provisions of section 22-107, R.C.M. 1947,are applicable, i.e. thewidow, 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 renunciationwithin sixmonths, 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 issueswe find the district court correctly held the sixmonths 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 itwas never necessary for her to contest the will as invalid to share in the estate through dower and succession,rather than as provided in thewill. But, itwas necessary to renounce the valid will within the time limitation and in the formprescribed by section 22-108, R.C.M. 1947. The trial courtwas 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., thewill was valid and properly admitted intoprobate, and the alloted time for renunciationunder 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 inheritanceby succession can be waived by ante-nuptial agreement only upon words expressly, or by clear implication,declaring that it is the express intentionof thewife 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



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