No. 12776 IN

### THE SUPKEME COURT OF THE STATE OF MONTANA 1974

IN

### THE MATTER OF THE ESTATE OF 0. B. HETLAND, alsoknown as OSWALD B. HETLAND, Deceased.

Appeal from: District Court of the Thirteenth Judicial District, Honorable Robert H. Wilson, Judge presiding. Counsel of Record: For Appellant

### : Hibbs, Sweeney and Colberg, Billings, Montana Maurice R. Colberg, 

### Jr., argued, Billings, Montana For Respondent : Ayers and Alterowitz, Red Lodge, Montana Arthur W. Ayers, Jr., argued, Red Lodge, Montana

Submitted: November 

### 14, 1974 Decided: 

# -4,975

--- Filed: 

### -.. 

## ;Mr. Justice Gene B. Daly delivered the Opinion of the Court.
This case concerns construction of the holographic willof one 0. B". Hetland, deceased. O.B. Hetland died October 14, 1967. Hiswill, dated July 9, 1964, was duly admitted toprobate November 

### 8, 1967, and Antonia Hetland, hiswidow, was appointed administratrixwith willannexed the same day. Letters of administration were issued November 15,

The estate of O.B. Hetland was not completely probated nor distributed when thewidow and administratrix, Antonia Hetland, died intestate ~eptember 17, 1973. At the time of his death, Hetland and Antonia had been married only sixyears and therewere no children of the marriage. Hetland had been previously married to Karen Hetland who died October 

### 24, 1959. There were two childrenborn of that marriage, Anne Hilderman and John Hetland; respondents in this action. Antonia Hetland was married previously and had one son, her only heir and next of kin, George Kuchan. Upon the death of Antonia Hetland, George ~uchan's wife, Eva Ruth Kuchan, was appointed administratrix of the estate of Antonia Hetland. George Icuchan and the administratrix, Ruth Kuchan, are the appellants in this action. Ann Hilderman, daughter of O.B. Hetland, was appointed administratrixde bonis non with thewillannexed of the unfinished probate of the O.B. Hetland estate. The entire text of the holographic willreads: "July 9, 1964 To Whom it may concern. This is a preface tomy lastwill & testament. The princapel reason for thiswillistoprotect my wife Antonia from harm and want when I am gone. She has given me genuine Happiness, taught me tolerance and compassion, in the few years we have been together. If I have wounded anyone I ask forgiveness and ask for piece with 14y God.

### Now this my lastWill & 

### Testament. 

### Iwant my wife Antonia to have all of my personal property such as Truck, tools, Television household goods glasses an tobacco pouch. 

### Iwant her to have free use of and administer my estate for Life or as long as she cares to and when she gets ready to Liquifymy estate 

### Iwant it done in this Manner. Upon my death 

### Iwant My Estate to pay funeral.& other expenses that is necessary. If the estate has to Borrow Money formy funeral expenses 

### Iwant her to have the authority to do it and the estate to carry the debt until the estate is Liquified if Necessary. When my estate is Liquified 

### Iwant 14yWife Antonia to have one third of it. My DaughterAnnie or her heirs to have one third and My Son Johnne or his heirs to have the remaining third. May God Have Nercy on us All. /s/ Oswald (O.B.) Hetland." The property in dispute consists of realproperty located in Billings, Montana, valued on October 14, 1967 at $30,000. The parties agree the present value is higher. Appellants, George Kuchan,Antonia ~etland'sonly heir, and Eva Ruth Kuchan, the administratrixofAntonia Hetland's estate, contend that the remainder of the estate of 

### O.B. Hetland, should be distributed one-third to the estate of Antonia Hetland, onethird to Anne Hilderman and one-third to John Hetland. Respondent, Anne Hilderman, on behalf of herself and her brother John Hetland, contends the remainder of the estate of 

### O.B. Hetland should be distributed one-half to Anne Hilderman and onehalf to John Hetland. The district court in its findings of fact and conclusions of law,held: "That by the terms of saidwill decedent did devise to Antonia Hetland a life estate in all of decedent's real estate and that the property in which Antonia Hetland was vested with a life estatewas not liquidated during the lifetime ofAntonia Hetland and that the provisions of said will as to liquidation and division are therefore inoperative and ofno effect.I I 

### The court therefore terminated Antonia Hetland's life estate,and awarded the remainder to O.B. ~etland'stwo children, Anne Hilderman and John Hetland.The cardinal rule in the construction of wills 

### ,:is that a 

### willis tobe construed according to the intent of the testator. Section 91-201, R.C.M. 1947. That 

### is often not easily done. When terms of doubtful meaning areused ina holographic 

### will,
as thewords "administer" and "liquify" were used inthis

### will, the courts arecalled on to act as a medium with the spiritworld to determine what meaning the deceased had in mind when drawing thewill. Not an easy task by any means, nor an infallible one. The holographic 

### willhere isprefaced with "The princapel
reason for this

### willis to protect my wife Antonia from harm and want when I am gone." With that inmind, and reading the text of thewillas a whole, there is littledoubt that when Hetland wrote
III want her tohave freeuse of and administer my estate for life
or as long as she cares to" that he desired to leave Antonia Hetland
a lifeestate. However, we do not find that theremaining portion of ~etland's 

### willdisposes of the remainder after the lifeestate terminated. It did provide that ifAntonia desired to terminate the lifeestate,
or if itbecame necessary to terminate the lifeestate, that Antonia would take one-third, daughter Anne orher heirswould take one-third, and son John orhis heirs would take the remaining one-third. But, that provision was applicable to only a voluntary termination by Antonia, hiswife. That would explainwhy Hetland failed to place "or her heirs" afterhiswife's name inparagraph three of thewill, but did so after his daughter's and son's names. Because only she, Antonia, could terminate the lifeestateunder this provision, she would have tobe alive to accomplish it and hence would have no heirs. This Court finds this explanation more logical than respondent's explanation that in failing to place "or her heirs" afterhiswife's name, Hetland showed an intent that no part of his estate should go toAntonia's heirs. Had he so intended, he surely would have been more explicit than he was.Since Hetland created a lifeestate inhis surviving wife and failed to dispose of the remainder afterher death, if she elected not to terminate the lifeestate during her lifetime, the remainder must be distributed under section 91-403, R.C.M. 1947, ~ontana's intestate succession statute. It 

### is alsowell settled that under
our statute these property interests vested immediately upon the life death of the testator, Hetland, subject to thelestate inhis widow, and in this case, the elections she could have made under hiswill. Estate of Hosova, 143Mont. 74, 77, 387 P.2d 305; Miller v. Murphy, 119 Mont. 393, 175 P.2d 182; In re~ossen's Estate, 118 Mont. 40, 162 P.2d 216. Therefore, Antonia Hetland, upon the death of her husband, received a one-third vested interest in the remainder of her husband's estateunder section 91-403(1), 

### R.C.M. 1947, which passed to her estateupon her death. That portion of the district court's judgment awarding Anne Hilderman and John Hetland each one-half of the estate of Oswald B. Hetland 

### isreversed. This case isremanded to the district court for a judgment in conformance with this opinion: awarding Antonia ~etland's estate one-third; Anne Hilderman one-third; and John Hetland one-third interest in the estate of Oswald B. Hetland, deceased.

We Concur: 

### f

.

Chief Justice

Justices.

# u