No. 86-134 

IN THE SUPREWE COURT OF THE STATE OF MONTANA 

1986 

IN THE MATTER OF THE ESTATE OF 

MARGARET A. WALES, Deceased. 

APPEAL FROM: District Court of the Third Judicial District, 

In and for the County of Powell, 

The Honorable Robert Boyd, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Ted L. Mizner, Deer Lodge, Montana 

For Respondent: 

Kenneth R. Neill; Larsen & Neill, Great Falls, 

Montana 

Submitted on Briefs: May 30, 1986 

Decided: October 30, 1986 

Filed: I)CT Jt ij86 

4?# 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from an order of the District Court 

of the Third Judicial District in and for the County of 

Powell, Montana, concerning the distribution of the estate of 

Margaret Wales. The sole issue presented is whether a gift 

made by the deceased in her lifetime took the place of and. 

adeemed by satisfaction devises contained in her last will 

and testament. 

Margaret A. Wales ("Anita") died on April 14, 1984. 

She had previously executed a last will and testament on 

December 1, 1976. In her will, Anita had distributed 147 

shares of her stock in Wales Brothers, a ranching 

corporation, as follows: 

To her nephew, Joe Johnson 48 shares 

To her nephew, Edward Wales 37 shares 

To her grandnephew, Hal Hansen 62 shares 

However, on December 27, 1976, Anita gave 42 shares of 

her Wales stock to Joe Johnson and one share apiece to Ed 

Wales and Hal Hansen. Anita never changed or revoked her 

will, so that at the date of her death, it still purported to 

distribute 147 shares though she possessed only 103. 

In March, 1985, Hal Hansen petitioned the District 

Court for a declaration of the legal effect of Anita's will. 

Central to Hansen's petition was the question of how the 

remaining 103 shares were to be distributed. Hansen argued 

that each devisee was entitled to receive from the estate the 

balance of the total number of shares provided by the terms 

of the will. Joe Johnson and Ed Wales, on the other hand, 

argued that each of the devisees was entitled to a pro rata 

portion of the remaining shares. 
The District Court held for Johnson and Wales, awarding 

each devisee a proportionate number of the remaining 103 

shares in accordance with the percentages originally listed 

in the will. Thus, the court awarded Hal Hansen 42.23, or 

43.5 shares, of the remaining 103 shares; Joe Johnson was 

awarded 32.6%, or 33.6 shares; and Ed Wales received 25.2% or 

25.9 shares. Hal Hansen now appeals. We affirm the result. 

1 Initially, we find that this devise was a "specific" 

devise as opposed to a "general" devise. As a rule, a 

general devise is one which, in accordance with the terms of 

the will, may be satisfied out of the testator's estate 

generally and is not charged upon any specific property. A 

general devise does not attempt to dispose of any specific 

article of property, but may be satisfied out of the general 

assets of the testator's estate. See 6 Page on Wills, § 48.2 

(Bowe-Parker ed. 1962) . 

A specific devise, on the other hand, is a gift of a 

specific thing, or of some particular portion of the 

testator's estate, which is differentiated from the balance 

of the testator's property. A specific devise differs from a 

general devise in that it is not intended by the testator to 

be paid out of the estate generally, but is to be paid solely 

by delivering to the devisee that specific article given by 

will. 6 Page on Wills, § 48.3, (Bowe-Parker ed. 1962). 

In case of doubt as to the testator's intention, courts 

have generally presumed that the testator intended to give a 

1 Traditionally, a "devise" only referred to a 

disposition by will of real property. A disposition by 

will of stock or other personal property was typically 

called a "legacy." In Montana, however, this 

distinction has been erased. Section 72-1-103(8), MCA, 

treats similarly devise and legacy. For the sake of 
general devise rather than a specific one. To find a 

specific legacy, there must generally exist some indication 

of intent. 

In this case, Anita Wales passed in her will, "x 147 

shares of the stock of Wales Brothers." (Emphasis added. ) 

We find that inclusion of the word "my" in a devise indicates 

sufficient intention to render that devise specific rather 

than general. "A reference to the securities as belonging to 

the testator, a reference which may be made by the use of 

such word as 'my, ' . . . shows that such [devise] is 

specific." 6 Page on Wills, S 48.6 (Bowe-Parker ed. 1962) . 

Accord Estate of Cullen (N.Y. 1985), 485 N.Y.S.2d 454, 460; 

Matter of Will of Mahoney (N.Y. 1976), 388 N.Y.S.2d 853, 855; 

In re Noble's Estate (Kan. 1935), 41 P.2d 1021, 1025. 

The issue thus becomes what effect does an inter vivos 

gift of stock have on a specific devise of that same stock. 

We find that because this devise is specific, 

S 72-2-517(1) (a), MCA, is applicable. This section states: 

(1) If a testator intended a specific 

devise of certain securities rather than 

the equivalent value thereof, the 

specific devisee is entitled only to: 

(a) as much of the devised securities as 

is a part of the estate at the time of 

the testator's death; . . . 

In the present case, we find that Anita Wales intended 

a specific devise of certain securities rather than the 

consistency with the statutory language, we will use 

"devise" throughout this opinion. 

2 The aversion of the courts toward construing devises as 

specific is usually attributed to the fact that such 

gifts are subject to ademption in the event their 

subject matter is disposed of by the testator after 

execution of the will, a result which is regarded as 

imposing a hardship on the devisee. 
equivalent value thereof. Thus, the parties--the specific 

devisees--are entitled to only as much of the devised 

securities as remained in Anita's estate at the date of her 

death--103 shares. 

The remaining question is how these 103 shares are to 

be distributed. Section 72-2-517 (1) (a) proffers no guidance 

on division of the remaining devised securities among 

multiple specific devisees. Appellant contends that this 

section requires that Anita's inter vivos gift to each 

devisee be subtracted from her gift of stock in her will. 

Put another way, appellant argues that Joe Johnson was 

devised 48 shares of Anita's Wales Brothers stock and was 

gifted 42 of those shares during Anita's lifetime. Thus, 

appellant continues, Johnson is entitled to only those six 

shares which remain a part of - his devise at the time of 

Anita's death. This, appellant concludes, represents the 

portion of his individual devise which remained at the date 

of Anita's death. 

We cannot agree with appellant's argument. Such a 

reading of this statute would, in effect, constitute a 

partial ademption by satisfaction. Anita's devise of stock 

to each of the three parties would be partially adeemed to 

the extent of her inter vivos gifts. 

Such a result, however, would be directly contrary to 

§ 72-2-515, MCA, the section covering ademption by 

satisfaction. This section states, in pertinent part: 

Property which a testator gave in his 

lifetime to a person is treated as a 

satisfaction of a devise to that person, 

in whole or in part, only if the will 

provides for deduction of the lifetime 

gift or the testator declares in a 

contemporaneous writing that the gift is 

to be deducted from the devise or is in 

satisfaction of the devise or the devisee 
acknowledges in writing that the gift is 

in satisfaction . . . 

Thus, an inter vivos gift will be deducted from a 

devise only if such an intent is expressed in the will or in 

a contemporaneous writing. Because no such intent or writing 

was here shown, we will not subtract the inter vivos gifts 

from the devise. 

We feel that a better reading would be achieved by 

distributing the remaining 103 shares on a proportional basis 

consistent with the percentages listed in the will. 

In sum, we hold that this devise was a specific devise 

and that the specific devisees are entitled to only those 103 

shares remaining in the estate at the date of Anita's death. 

The inter vivos gifts are of no effect; it is as if those 44 

shares had been given to a third party. The remaining 103 

shares are to be distributed on a proportional basis 

consistent with the percentages listed in the will. 

We affirm the result reached below. 

We concur: /