No. 13089 INTHE SUPREME 

### COURT OF THE STATE OF MONTANA 1976

INTHE MATTER OF THE ESTATE OF ETHA WANETA DONOVAN, alsoknown 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:

# FEB2

## 4 1976r.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, districtjudge, denying aclaim tojewelry allegedly passing under a will. Appellant isViola Riordan, a legatee under thewill oi .h"lrs. Etha Waneta Donovan, deceased. Respondent isBernice ~ahl Lutz, executrix of the estate. Mrs. Donovan, a resident of Toole County, died on June 1-2, I973 leaving a willthat 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. 9onovan1sdiamond 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 atapproximately $8,700. Mrs. Donovan also possessed costume jewelry appraised at $100 that passed under her will. Paragraph eight of her willprovided: "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, allmy personal effects and clothes. In the safety deposit box my silver dollars. Also to said Viola Riordan, I give, devise and bequeath allmy right, title and interest in the oiland gas royalties and mineral interestswhich I own on certain lands inToole and Glacier Counties, Montana. I I (Emphasis added)

# . Paragraph twelve of the willauthorizes the executrix to sell allof 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 shouldbe sold pursuant toparagraph twelve of thewill. Implicit in this petition isthe contention that thejewelry was not bequeathed under thewords "costume jewelry". An order to show causewhy the jewelry should not be sold was issued on November 17, 1973. On December 

### 4, 1973, appellant objected to the proposed salecontending thejewelry was given to her by paragraph eight of the

### will. Then, on December 

### 6, 1973, the executrix filed as an exhibit an envelope found inMrs. ~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 ringwas tobe given toBrian Lenz, when he reached 21years 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 giftbe found void. On May 13, 1975, the district court held that the gift toBrian Lenz failed for lack of a deliverywhich would complete the gift. The court also found Mrs. Donovan did not intend to grant appellant thejewelry but instead intended to dispose of itby saleunder paragraph twelve of her will. The court issued

an order for the sale of thejewelry from which this appeal 

### is taken. The issue for review iswhether 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 indetermining what the testatrixmeant by thewords "costume jewelry" and "all my personal effects". Since thewilltook effect prior to the adoption of the Montana Uniform Probate Code, the statutes in effect atthat time govern the construction of thiswill. In the Matter of the Estate of Gudmunsen, Mont, -3 

# - P.2d -> 33 %.Rep. 57.Section 91-201, R.C.M. 1947, provided: "A 

### willis tobe construed according to the intention of the testator.9~ 

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

IIIntention tobe ascertained from 

### will. In cases of uncertainty arising upon the face of a will, as to the application of any of 

### its provisions. the testatorfs intention 

### is tobe-ascertained from * the words of thewil1,taking into view the circumstances under which itwas made. exclusive of his oral declarations

# . (Emphasis added.) Words used in a.wil-1are tobe taken in their ordinary and grammatical sense, unless there 

### is a clear intention togive them another meaning. Section 91-208, R.C.M. 1947. The definition of costume jewelry, given inWebsterlsThird New International Dictionary, 1971, p. 515, 

### is:

1IJewelry forwear with current fashions usu. made of inexpensive materials (as metal, shells, plastics, wood) often setwith imitation or semiprecious stones. 11 We hold thejewelry in question isnot costumejewelry. It 

### isvalued atapproximately $8,700 and fashioned of expensive and precious materials. We further hold thewords "costume jewelry1'were intended topass 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 inthis language in

### lack's Law Dictionary, Revised Fourth Edition, 1968, p. 692:

II

When certain persons or things are specified in a law. contract. orwill. an intention to exclude allothers'from its'operation may be inferred.I I The express mention of "costume jewelry1' indicates that 

### Mrs. Donovan did not intend to include her expensivejewelry in her bequest to appellant. The attempted giftof the gentleman's ring toBrian Lenz isa 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 wedeterminewhether thejewelry was bequeathed in the phrase "all my personal effects". Appellant contends that the phrase is general in scope and encompasses thejewelry. 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 thatwhere an enumeration of specific things is followed by some more general word or phrase, such general phrase 

### is tobe held torefer 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 thebequest of personal effects means nothing if it does not include thisjewelry. This contention 

### is without merit as the typesof personal effects referred to are those specifically enumerated inparagraph eight of thewill. In In re silver's Estate, 98 Mont. 141, 150, 38 P.2d 277, this Court stated: "When a willcontest is instituted, the contestant assumes the position of the plaintiff in a civil action, and the burden rests upon him to establish the factswhich he allegeswillwarrant 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. 11If the contestant fails tomeet thisburden by producing evidence to support his allegations, the court must rule against him even ifhis opponent has produced no evidence whatsoever. The sole concern of the trialjudge atthis point 

### is the strength

orweakness of the contestant's case. 1

### anc croft's Probate Practice, 2d ed. $205, pp. 494,495. Although the instant case isnot a willcontest in the strict sense of the term, it 

### is a conflict between the executrix of thewillattempting tocarry out 

### its provisions and another. As such the same rule applies and the burden of proof is on appellant. Atthe district court level appellant failed to present any expert testimony or evidence that would support her contention that "costume jewelryl' includes expensive jewelry with precious stones. No direct evidence was offered to show that Mrs. Donovan intended tobequeath her jewelry to appellant. Appellant did not meet her burden of proof and the district court had no alternativebut torule against her. The order of the district court is affirmed. 

# f

# g/ e' Justice

We Concur:

Justices. 

# m