No. 13089 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1976 

IN THE MATTER OF THE ESTATE OF 

ETHA WANETA DONOVAN, also known as 

Waneta Donovan, E. W. Donovan, and 

Mrs. Waneta Donovan, 

Deceased. 

Appeal from: District Court of the Ninth Judicial District, 

Honorable R. D. McPhillips, Judge presiding. 

Counsel of Record : 

For Appellant : 

Robert Hurly argued, Glasgow, Montana 

For Respondent: 

Sherman and Anderson, Conrad, Montana 

Douglas Anderson argued, Conrad, Montana 

Submitted: February 4, 1976 

Decided : FEB 2 4 1976 
r. Suscicc Frank L. '-laswell delivered the Opinion of the Court. 

This is an appeal from an order of the district court, 

Toole Zounty, the Hon. R. D. ?lcPhillips, district judge, denying 

aclaim to jewelry allegedly passing under a will. 

Appellant is Viola Riordan, a legatee under the will 

oi .h"lrs. Etha Waneta Donovan, deceased. Respondent is Bernice 

~ahl Lutz, executrix of the estate. 

Mrs. Donovan, a resident of Toole County, died on June 

1-2, I973 leaving a will that she personally drafted dated May 29, 

1973. Her estate is appraised in excess of $340,000 and passes 

co numerous friends and relatives under the terms of her will. 

The dispute in this case revolves around the disposition 

or Yrs. 9onovan1s diamond engagement and wedding ring set, two 

diamond dinner rings, a multistone ring, a diamond brooch, a 

single diamond earring and a gentleman's diamond ring. This 

jewelry is valued at approximately $8,700. Mrs. Donovan also 

possessed costume jewelry appraised at $100 that passed under her 

will. 

Paragraph eight of her will provided: 

"EIGHTH: I hereby give, devise and bequeath to 

Viola Riordan five thousand dollars ($5,000), my 

sewing table. Zenith Color Television set. three 

pieces of white Samsonite luggage, costum;! jewelry, cut 

glass vase and pitcher, all my personal effects and 

clothes. In the safety deposit box my silver dollars. 

Also to said Viola Riordan, I give, devise and bequeath 

all my right, title and interest in the oil and gas 

royalties and mineral interests which I own on certain 

lands in Toole and Glacier Counties, Montana. I I 

(Emphasis added) . 

Paragraph twelve of the will authorizes the executrix 

to sell all of the property that was not bequeathed or devised 

elsewhere in the will. 

On November 16, 1973, the executrix petitioned the 

district court to determine that the jewelry was not part of the 

"personal effects1' described in paragraph eight and that it should 
be sold pursuant to paragraph twelve of the will. Implicit in 

this petition is the contention that the jewelry was not bequeathed 

under the words "costume jewelry". An order to show cause why the 

jewelry should not be sold was issued on November 17, 1973. On 

December 4, 1973, appellant objected to the proposed sale contending 

the jewelry was given to her by paragraph eight of the will. 

Then, on December 6, 1973, the executrix filed as an 

exhibit an envelope found in Mrs. ~onovan's safety deposit box 

containing the diamond gentleman's ring, that appellant contends 

is one of the pieces of jewelry left to her. Mrs. Donovan had 

written a note on the envelope stating that the ring was to be 

given to Brian Lenz, when he reached 21 years of age. The 

executrix petitioned the court to determine whether this ring 

should be distributed to Brian Lenz as a precatory gift. Appellant 

objected and prayed that the gift be found void. 

On May 13, 1975, the district court held that the gift 

to Brian Lenz failed for lack of a delivery which would complete 

the gift. The court also found Mrs. Donovan did not intend to 

grant appellant the jewelry but instead intended to dispose of 

it by sale under paragraph twelve of her will. The court issued 

an order for the sale of the jewelry from which this appeal is 

taken. 

The issue for review is whether the district court was 

correct in determining that the 7testa.trix- did not intend to 

bequeath her jewelry to appellant. 

The crux of this case is the uncertainty in determining 

what the testatrix meant by the words "costume jewelry" and "all 

my personal effects". Since the will took effect prior to the 

adoption of the Montana Uniform Probate Code, the statutes in 

effect at that time govern the construction of this will. In the 

Matter of the Estate of Gudmunsen, Mont , -3 - P. 2d -> 

33 %.Rep. 57. 
Section 91-201, R.C.M. 1947, provided: 

"A will is to be construed according to the 

intention of the testator.9~ * *" 

Section 91-202, R.C.M. 1947, provided: 

I I Intention to be ascertained from will. In 

cases of uncertainty arising upon the face of a 

will, as to the application of any of its provisions. 

the testatorf s intention is to be-ascertained from * 

the words of the wil1,taking into view the circumstances under which it was made. exclusive of his 

oral declarations . (Emphasis added. ) 

Words used in a.wil-1 are to be taken in their ordinary 

and grammatical sense, unless there is a clear intention to give 

them another meaning. Section 91-208, R.C.M. 1947. The definition 

of costume jewelry, given in Websterls Third New International 

Dictionary, 1971, p. 515, is: 

1 I Jewelry for wear with current fashions usu. made 

of inexpensive materials (as metal, shells, plastics, 

wood) often set with imitation or semiprecious 

stones. 11 

We hold the jewelry in question is not costume jewelry. 

It is valued at approximately $8,700 and fashioned of expensive 

and precious materials. We further hold the words "costume 

jewelry1' were intended to pass only the $100 worth of costume 

jewelry to appellant in accordance with the definition quoted 

above, and not the more valuable pieces. 

The maxim "expressio unius est exclusio alterius" 

(the expression of one thing implies the exclusion of another) 

further supports this construction. This rule of construction 

has been expressed in this language in lack's Law Dictionary, 

Revised Fourth Edition, 1968, p. 692: 

I I When certain persons or things are specified 

in a law. contract. or will. an intention to 

exclude all others 'from its 'operation may be 

inferred. I I 

The express mention of "costume jewelry1' indicates that 

Mrs. Donovan did not intend to include her expensive jewelry in 

her bequest to appellant. The attempted gift of the gentleman's 

ring to Brian Lenz is a further circumstance supporting this con- 
struction. Even chough the attempted gift dccurred prior ro rhe 

drafting of the will, it nonetheless demonstrates Mrs. Donovan's 

usage of the terms involved. 

Next we determine whether the jewelry was bequeathed in the 

phrase "all my personal effects". Appellant contends that the 

phrase is general in scope and encompasses the jewelry. We find, 

however, under the doctrine of ejusdem generis, that the generality 

of the phrase in and of itself defeats this argument. Ejusdem 

Generis is a rule of construction. In Aleksich v. Industrial Acc. 

Fund, 116 Mont. 127, 139, 151 ~4016, this Court stated: 

"The doctrine of ejusdem generis is a well known rule 

of construction to aid in ascertaining the meaning 

of statutes and other written instruments, the doctrine 

being that where an enumeration of specific things 

is followed by some more general word or phrase, such 

general phrase is to be held to refer to things of 

the same kind as those enumerated. I I 

Under this rule of construction the meaning of "all my personal 

effects" must be restricted to the same class of goods specifically 

enumerated in paragraph eight of the will, Anno. 30 ALR3d 797, 

841; 80 Am Jur 2d, Wills, §§ 1136,1255. The phrase refers only 

to items of costume jewelry and cannot be expanded to include 

the testatrix's more expensive jewelry which is of a different 

type or class. 

Appellant asserts the bequest of personal effects means 

nothing if it does not include this jewelry. This contention is 

without merit as the typesof personal effects referred to are 

those specifically enumerated in paragraph eight of the will. 

In In re silver's Estate, 98 Mont. 141, 150, 38 P.2d 277, 

this Court stated: 

"When a will contest is instituted, the contestant 

assumes the position of the plaintiff in a civil 

action, and the burden rests upon him to establish 

the facts which he alleges will warrant the setting 

aside of the intention of the testator, or the 

declaration that the instrument challenged does not 

express that intention, by a preponderance of the 

evidence. 11 
If the contestant fails to meet this burden by producing 

evidence to support his allegations, the court must rule against 

him even if his opponent has produced no evidence whatsoever. 

The sole concern of the trial judge at this point is the strength 

or weakness of the contestant's case. 1 anc croft's Probate 

Practice, 2d ed. $205, pp. 494,495. 

Although the instant case is not a will contest in the 

strict sense of the term, it is a conflict between the executrix 

of the will attempting to carry out its provisions and another. 

As such the same rule applies and the burden of proof is on 

appellant. At the district court level appellant failed to 

present any expert testimony or evidence that would support her 

contention that "costume j ewelryl' includes expensive jewelry with 

precious stones. No direct evidence was offered to show that Mrs. 

Donovan intended to bequeath her jewelry to appellant. Appellant 

did not meet her burden of proof and the district court had no 

alternative but to rule against her. 

The order of the district court is affirmed. 

f g/ e' 

Justice 

We Concur: 

m Justices.