No. 81-385 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

IN THE FWTTER OF THE ESTATE OF: 

GILLJF: V. WOOTEN, Deceased. 

Appeal from: District Court of the Fourth Judicial District, 

In and for the County of Missoula 

Honorable James B. Wheelis, Judge presiding. 

Counsel of Record: 

For Appellant: 

Moses Law Firm, Billings, Montana 

Charles F. Moses, Billings, Montana 

Victor F. Valgenti, Missoula, Montana 

For Respondent: 

Lawrence V. Johnson, Hamilton, Montana 

Boone, Karlberg & Haddon, Missoula, Montana 

Allen E. Cone, Los Angeles, California 

George Goodrich, Missoula, Montana 

William Rossbach, Missoula, Montana 

Milodragovich, Dale & Dye, Missoula, Montana 

Submitted on briefs: March 5, 1982 

Decided: April 30,1982 

Filed: ApR 3 0 1982 

qm9m 9- 4 PsCwb' 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the Court. 

Robert J. Grafft, Sr., appeals from an order of the 

District Court of the Fourth Judicial District, Missoula 

County. The order removed Grafft as personal representative 

of the estate of Gille V. Wooten and declared that Grafft 

had only a life estate in certain real property which Wooten 

was in the process of selling at the time of his death. 

Gille Wooten, an attorney, made and executed a holographic 

will on February 13, 1976. The pertinent provisions of the 

will are set forth below: 

"Third Paragraph 

"I nominate, constitute, and appoint Robert 

J. Grafft, Sr. to act as and to be my 

Executor, to serve without bond. If he fails 

or ceases or is unable to act, then I appoint 

the First National Bank of Missoula, Montana 

as Executor. 

"Fourth Paragraph 

"I give devise and bequeath all of my land and 

improvements to my friend, Robert J. Grafft, 

Sr., for his whole lifetime. I also give and 

bequeath to him all of my personal property, 

including my interest in cattle, and all stock 

held by me in any and all corporations which I 

have at the time of my death. 

"Sixth Paragraph 

"I give devise and bequeath the remainder 

interest in my land at the time of Robert J. 

Grafft, Sr's. death, in equal portions to the 

Audubon Society, Ducks Unlimited, and the 

National Wildlife Federation. 

"Seventh Paragraph 

"I grant my Executor full power to act for the 

betterment of my estate without order of Court, 

including sale of personal and real property." 

Gille Wooten died in Missoula County, Montana, on 

February 22, 1976. On March 25, 1976, Robert J. Grafft, 

Sr., was appointed personal representative of the estate. 
Prior to his death, Gille Wooten owned 880 acres of 

land in the Rattlesnake Creek drainage near Missoula, 

Montana. At the time of his death, 350 acres of this land 

[which portion is hereafter referred to as the Gilroy tract] 

was subject to a contract for deed, dated October 7, 1975, 

in which Wooten was the seller and Joan Gilroy was the 

buyer. This contract was current and not in default on the 

date of Wooten's death. After Wooten's death, however, the 

buyer failed to make the payment due on April 2, 1976. This 

default resulted in litigation in which judgment was entered 

on March 7, 1978, terminating Gilroy's interest in the 

contract and the real property. 

On November 20, 1978, Grafft, as personal representative, 

filed in the District Court a petition for construction of 

will and sale of real property, wherein he prayed inter 

alia, that the Court: 

"2. Determine the rights and interest of 

all parties in and to the proceeds of any sale 

of land exceeding estate indebtedness. 

"3. Determine the nature of the interest passing 

as personal property to Robert J. Grafft, Sr., 

with respect to the contract for sale of the land 

executed by the decedent during his lifetime and 

cancelled thereafter. 

"4. Authorize the Personal Representative to 

advertise and offer for sale all real property 

involved in the above-entitled estate for the 

highest price obtainable and in the course thereof 

to negotiate with and to solicit and accept bids 

from prospective purchasers upon the condition that 

final sale shall be subject to Court approval." 

The issues on appeal are narrower than the relief prayed 

for in the petition would indicate. 

On May 6, 1981, in response to a petition filed by the 

remaindermen charities, the District Court ordered Grafft 

removed as personal representative of the estate. 
In a separate order dated May 6, 1981, the Court 

concluded that Wooten intended all of the land, including 

the Gilroy tract, to pass as a remainder interest to the 

charities. Without so stating, but by necessary implication, 

the District Court ruled that Wooten, at the time of his 

death, held the Gilroy tract as real property rather than as 

personalty. 

The Court stated: 

". . . The Court in search for the intent of 

the testator must consider all the background 

facts and the surrounding circumstances at the 

time he executed the will; then reading the will 

in its entirety, must endeavor to take from 

the words the meaning which the testator tried 

to put into them. MCA 72-11-305 (1979). 

"4. The decedent intended to devise specific 

categories of his estate assets: cash, land, 

and personalty. It is noteworthy that his 

description of personalty specifically includes 

his interests in cattle and stock, and does not 

refer to his interests in land. This is significant, 

for it shows that the decedent in his mind had 

different ideas about his estate assets. The 

decedent's failure to refer to his interests in 

land shall not defeat his intent. The decedent 

intended for his land to pass as a remainder 

interest to the Charities. Although the decedent 

owned only a Seller's interest in [the Gilroy 

tract], his use of the word 'land' establishes 

the intent that all land in his estate pass to 

the Charities for the obvious reasons . . . 

"5. The power given the Personal Representative 

to act for the betterment of the estate . . . is 

in effect identical to that granted all personal 

representatives by MCA 72-3-613 (1979). Thus, no 

special power was given to the Personal Representative 

to benefit himself as the life tenant. Any sale 

of the land shall result in the proceeds being held 

in trust for the remaindermen, and the income (before 

principal) being used to satisfy charges to the 

estate. " 

Grafft raises two issues on appeal: 

1. Did the District Court err in removing Grafft as 

the personal representative of the estate? 

2. Did the District Court err in holding that the 
Gilroy tract, in which Wooten had a seller's interest, 

should pass as a remainder interest to the charities? 

We affirm the District Court on the first issue and 

reverse on the second. 

In its order removing Grafft as personal representative, 

the District Court stated: 

"In regard to the Charities' petition to remove 

and/or surcharge the Personal Representative, 

it is apparent that the Personal Representative 

is unable to effectively divorce his duties as 

Personal Representative from his interest as the 

life tenant in the estate. The Charities' petition 

alleges frequent misuses of funds by the Personal 

Representative which haven't, in their entirety, 

been explained satisfactorily. 

"It is hereby ordered that Robert J. Grafft, Sr., 

is relieved of the remainder of the duties as 

Personal Representative." 

Grafft contends that this statement by the District 

Court does not satisfactorily set forth the basis for his 

removal as personal representative and that some further 

finding must be made by the District Court. We do not 

agree. 

It was not necessary for the District Court to include 

in its findings of fact a11 of Grafft's alleged transgressions 

as personal representative. Findings of fact which ascertain 

ultimate facts and sufficiently conform to the pleadings and 

the evidence to support the judgment are regarded as sufficient, 

though not as full and complete as might be desired. Holloway 

v. University of Montana (1978), 178 Mont. 198, 203, 582 

P.2d 1265, 1268. 

The removal of a personal representative for cause is 

governed by section 72-3-526, MCA. Within the bounds of the 

statute a trial judge should be given broad discretion as to 

the grounds upon which he may remove a personal representative, 
but the grounds must be valid and supported by the record. 

Matter of Estates of Aaberg (1980), 25 Wash.App. 336, 607 

P.2d 1227, 1228. The record in the present case contains 

references to numerous expenditures of estate funds by 

Grafft which are of questionable legitimacy. Not the least 

of these is the use of estate funds to finance Grafft's 

defense on certain criminal charges. 

After viewing the evidence, the District Court concluded 

that Grafft's conduct warranted his removal as personal 

representative. We find nothing in the record that would 

lead us to conclude otherwise. 

In resolving the second issue, the District Court 

relied on what it believed to be Wooten's testamentary 

intent as expressed in his will. The District Court concluded that the "land" referred to in Wootenfs will was 

intended by him to include the Gilroy tract, in which Wooten 

had only a seller's interest. In other words, the District 

Court ruled that the Gilroy tract was meant to pass as real 

property under Wooten's will. 

We do not find the decedent's intent so clear as did 

the District Court. Furthermore, we find that this is a 

proper case for application of the doctrine of equitable 

conversion. We have applied this doctrine many times in the 

past. A suitable example of its operation can be seen in 

Kern v. Robertson (1932), 92 Mont. 283, 12 P.2d 565, where 

we stated: 

"The authorities are in accord that an 

enforceable contract for the purchase and 

sale of real property passes to the purchaser 

the equitable and beneficial ownership thereof, 

leaving only the naked legal title in the seller, 

as trustee for the purchaser, and as security 

for the unpaid purchase price. If the purchaser 

dies while the contract is in force and effect, 

his interest passes to his heirs as real property. 
If the seller dies while the contract is in force 

and effect, his interest passes to his personal 

representative as personal property, and not to 

his heirs." 92 Mont. at 288, 12 P.2d at 567. 

A more recent case, In Re Estate of Rickner (1974), 

164 Mont. 51, 518 P.2d 1160, states: 

"It has long been established by this Court 

that a contract for the sale of real property 

converts the seller's interest from an owner 

of real property to that of an owner of 

personalty, this being the doctrine of 

equitable conversion. [Citations omitted.]" 

164 Mont. at 55, 518 P.2d at 1162. 

By our statutes, the property of a person devolves upon 

.- 

his death to the persons to whom it is devised by his last 

will, section 72-3-101(2), MCA, subject to the requirement 

that the devisee survive the testator by 120 hours. Section 

72-2-511, MCA. A testamentary disposition, when vested, 

cannot be divested unless upon the occurrence of a contingency prescribed by the testator. Section 72-11-331, MCA. A 

specific devisee has the right to the remaining specifically 

devised property and to any balance of the purchase price 

(together with any security interest) owing from the purchaser 

to the testator at death by reason of sale of the property. 

Section 72-2-516 (2) (a) , MCA. 

Applying these statutory rules, we find that: the 

personal property of the decedent was specifically devised 

to Robert Grafft; under Montana law, the right of the decedent 

to the Gilroy tract was as a seller under a contract, and so 

was personal property; the right to the balance of the 

purchase price at decedent's death passed to Robert Grafft 

(after 120 hours) as personal property; the decedent's security 

interest (the default provisions of the sale contract) also 

passed to Robert Grafft; the default of the buyer after 

decedent's death was a default in a contract that had by 
then vested in Robert Grafft, subject to the administration 

of the estate. 

This holding is consonant with our pre-Uniform Probate 

Code decisions that the interest of a vendor in a contract 

to sell real estate is intangible personal property for 

purposes of inheritance taxation, and that the character of 

decedent's property at the time of his death determines 

whether it is real or personal property. In Re ~riebach's 

Estate (1957), 132 Mont. 437, 318 P.2d 223. 

It is only the circumstance that the Gilroy contract 

ended by reason of the default of the purchaser that causes 

the problem of ownership here. Had the buyer not defaulted, 

but complied with the contract of purchase, the resulting 

monies coming to the estate would certainly have accrued to 

Grafft as personal property. 

We affirm in part and reverse in part and remand this 

cause to the District Court with instructions to proceed 

with the probate of this estate in accordance with this 

opinion. Costs to appellant. 

We Concur: 

-- Chief Justice