No. 86-134 IN THE SUPREWE COURT OF THE STATE OF MONTANA 1986

INTHE MATTER OF THE ESTATE OF MARGARET A. WALES, Deceased.

APPEAL FROM: DistrictCourtof the ThirdJudicial District, Inand for the Countyof Powell, TheHonorable RobertBoyd, Judge presiding.

COUNSEL OF RECORD:

For Appellant: TedL. Mizner, DeerLodge, Montana

For Respondent: KennethR. Neill; Larsen & Neill, GreatFalls, Montana

Submittedon Briefs: May 30, 1986 Decided: October 30, 1986

Filed: 

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# 4?# ClerkMr. Justice JohnConway 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 distributionof the estate of Margaret Wales. The sole issue presented iswhether 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 thedate ofher death, it stillpurported to distribute 147 shares though shepossessed only 103. In March, 1985, Hal Hansen petitioned the District Court for a declaration of the legal effect ofAnita's will. Central to Hansen's petition was the question of how the remaining 103 shares were to be distributed. Hansen argued that each deviseewas entitled to receive fromthe 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 deviseeswas entitled to a pro rata portion of the remaining shares.TheDistrict Courtheld 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 onWills, § 48.2

(Bowe-Parkered. 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'sproperty. A specific devise differs froma general devise in that it is not intended by the testator to be paid out of the estate generally,but is tobe paid solely by delivering to the devisee that specific article given by will. 6 Page onWills, § 48.3, (Bowe-Parkered. 1962). In case ofdoubt 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 dispositionby will of realproperty. A dispositionby will of stock or other personal property was typically called a "legacy." In Montana, however, this distinctionhasbeen erased. Section 72-1-103(8),MCA, treats similarly devise and legacy. For the sake ofgeneral 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 inclusionof the word "my" in a devise indicates sufficient intention to render that devise specific rather than general. "Areference to the securitiesasbelonging to the testator, a reference which may be made by the use of such word as 'my,

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# .. shows that such [devise] is specific." 6 Page onWills, S 48.6 (Bowe-Parker ed. 1962)

# . Accord Estate of Cullen (N.Y. 1985), 485 N.Y.S.2d 454, 460; Matter ofWill ofMahoney (N.Y. 1976), 388N.Y.S.2d 853, 855; In reNoble'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) asmuch of the devised securitiesas 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 aversionof 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 ofAnita'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 ofher 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, inpertinent 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 satisfactionof thedevise or the deviseeacknowledges in writing that the gift is in satisfaction

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# .. Thus, an inter vivos gift will be deducted from a devise only if such an intent is expressed in thewill or in

a contemporaneouswriting. Because no such intentorwriting

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 aproportional basis consistent with the percentages listed in thewill. In sum, we hold that this devisewas a specific devise and that the specificdeviseesare entitled to only those 103 shares remaining in the estate at the date of Anita's death. The intervivos 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 consistentwith the percentages listed in thewill. We affirm the result reached below.

We concur:

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