No. 89-515 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

In the Matter of the 

Estate of Doris I. DeLong, 

Deceased, 

Pat Drabant, Smith Eugene 

Davies, Irene Morgigno, 

Barbara Elliott, LaVonne Davies, 

Petitioners and Appellees, 

Helen E. DeLong, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Ninth Judicial District, 

In and for the County of Lincoln, 

The Honorable Robert S. Keller, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Marshall M. Myers, Eureka, MT 

For Respondent: 

S. Charles Sprinkle, Libby, MT 

Filed: 

Submitted: 12/14/89 

* Decided: March 6, 1990 
Justice John C. Sheehy delivered the Opinion of the Court. 

Decedent Doris I. DeLong provided in the second paragraph of 

her form will, ItI give, devise and bequeath to James E. DeLons or 

Helen DeLonq.If (Underlined words are handwritten.) Petitioners 

and appellees, Pat Drabant, Smith Eugene Davies, Irene Morgigno, 

Barbara Elliott, and Lavonne Davies petitioned the District Court 

to declare the will of the decedent Doris I. DeLong invalid or to 

determine that the estate passed by intestacy. 

The District Court, Nineteenth Judicial District, Lincoln 

County, determined that the will of Doris DeLong of August 9, 1988, 

is a valid will and that Helen DeLong be appointed personal 

representative. Furthermore, the District Court denied Pat 

Drabantfs request to be appointed personal representative. The 

District Court also found that under the will no testamentary 

disposition was made of the property of the decedent, and ordered 

the decedent's property to pass under the law of intestate 

succession. The District Court attached the following brief 

memorandum to explain its holding: 

State of Montana v. Keller, 173 Mont. 523, 528, 568 P.2d 

166 (1977) makes it clear that the Court cannot rewrite 

the will of the testatrix, and there is nothing by which 

to clearly determine the intent of the testatrix. The 

reference to Ifto all other relatives and friends I leave 

my love and my good willn tells the Court nothing with 

respect to the intent of Doris I. DeLong. She had 

already planned to Ifgive, devise and bequeathft somethinq 

to James E. DeLong or Helen E. DeLong. She originally 

wrote that it was to go to James E. DeLong Helen E. 

DeLong, but she lined out the word "andff and inserted the 

word "orw , which now puts the will in the posture of not 

knowing what it is that is to be bequeathed or devised, 

but also does not tell us to whom. The parties may have 

agreed to the competency of Doris I. DeLong, but the 

foregoing is sufficient for me to determine that I do not 
know what the testatrix had in mind, and I may not 

rewrite the will. 

As such, the remainder of the will then is valid, thus 

revoking all other wills, and appointing Helen DeLong as 

the Personal Representative. 

The respondent and appellant, Helen E. DeLong, appeals the 

District Court order, asserting the decedent's intent was to devise 

all of her property to Helen or James DeLong. We disagree with 

appellant, and affirm the District Court. 

Essentially the appellant raises one single issue on appeal: 

Whether the District Court erred in finding lack of testamentary 

intent. 

Appellant argues that an examination of the entirety of Doris 

DeLong's will shows that her intent was to devise her entire estate 

to Helen or James DeLong. In contrast, the appellees assert the 

will is valid, but the decedent's intent is impossible to deduce 

by a reading of the four corners of the will. Therefore the estate 

should pass by intestacy. 

It is well settled that the intention of a testatrix, as 

expressed in her will, controls the legal effect of her 

disposition. Section 72-2-501, MCA; In Re the Estate of Erdahl 

(Mont. 1981), 630 P.2d 230, 231; State Fish & Game Comm'n. v. 

Keller, Etc. (1977), 173 Mont. 523, 526, 568 P.2d 166, 168. The 

intent of the testatrix must be found from all parts of the will 

which are to be construed in relation to each other so as, if 

possible, to form one consistent whole. In Re the Estate of 

Spriggs (1924), 70 Mont. 272, 225 P. 617. The intention of the 

testatrix is also to be ascertained from the words of a will which 
are to be taken in their ordinary and grammatical sense, unless a 

clear intention to use them in another sense can be collected and 

that other can be ascertained. section 72-11-302, MCA; In Re the 

Estate of Humes (1954), 128 Mont. 223, 226, 272 P.2d 999, 1000. 

In the present case, the decedent, on August 9, 1988, executed 

a valid will. The will contains the printed language: Itsecond- 

-I give, devise and bequeath tow and then sets holographically the 

names I1James E. DeLong or Helen DeLong. In case of Helen and James 

death, I leave to Tom DeLong." Originally she wrote that it was 

to go to ''James E. DeLong and Helen DeLongIn but she lined out the 

word Itand1' and inserted the word llor.ll The will then sets forth 

in a second holographic paragraph: "To all other relatives and 

friends I leave my love and my good will." 

The appellant contends that by construing the two holographic 

sections in relation to each other, as required by Erdahl, the only 

possible interpretation of the testatrix's intent is that she 

intended to convey her entire estate to Helen or James DeLong, or 

in the event of their death to Tom DeLong, and nothing to her 

remaining relatives and friends. We adopt the District Court's 

reasoning that by lining out the word ltandt* and by inserting the 

word "or,It the will is left in a state of ''not knowing what it is 

that is to be bequeathed or devised, but also does not tell us to 

whom. 

In this case, the will simply does not leave any property, 

real or personal, to anyone. As this Court stated in State Fish 

& Game Comm'n. v. Keller, Etc. (1977), 173 Mont. 523, 528, 568 P.2d 
166, 169, we will not rewrite the will of testatrix by substituting 

what this Court thousht the testatrix intended for the erroneous 

provision. Therefore, the residual portion of this will is 

invalid, and the estate must pass by intestacy. Section 72-2-201, 

MCA . 

Despite the lack of testamentary intent, appellant argues the 

will can be cured by applying the legal definitions for the words 

nndevisew and "bequeath. Appellant, relying on Blackt s Law 

Dictionary and some case law from other jurisdictions, proposes the 

following definitions: 

1) Devise--A testamentary disposition of land or 

realty; a gift of real property by the last will and 

testament of the donor . . . when used as a verb, means 

to dispose of real or personal property. 

2) Bequeath--To give personal property by will to 

another. 

Next, the appellant by inserting the above definitions 

contends the will reads as follows: 

Second--I give real property (devise) and personal 

property (bequeath) to James E. DeLong or Helen DeLong. 

We cannot adopt appellantns argument. Appellant is asking 

the Court to conjure up the intent of the decedent, a task this 

Court is not capable of performing. This Court cannot determine 

what portion, if any, of her real and personal property the 

decedent intended to pass to James DeLong or Helen DeLong. 

Furthermore, appellant contends the property should vest in 

Helen and James DeLong as owners in common pursuant to 5 72-11- 

319, MCA. Section 72-11-319, MCA, provides that "A devise or 

legacy given to more than one person vest in them as owners in 
~ornrnon.~' This argument fails for two reasons. First, the 

decedentts use of the word llorll does not connote a devise to I1James 

and Helen DeLongl1 as owners in common, but rather a devise to 

either "James DeLongff or "Helen De1ong.l' Second, if we would 

consider the DeLongs owners in common, the will still fails because 

it is impossible from reading the will to determine what the 

testatrix intended to devise to the DeLongs. 

Finally, appellant claims the will is in the posture of having 

one beneficiary of the testatrix's real and personal property, that 

person being James DeLong. Appellant arrives at this conclusion 

from the fact that on September 24, 1989, Helen DeLong relinquished 

any interest she may have possessed under the will. The filing of 

her relinquishment post-dated the District Court hearing on this 

matter. The issue was not properly presented to the District 

Court, and this Court will not review an issue raised for the first 

time on appeal. Weinberg v. Farmers State Bank of Worden (1988), 

231 Mont. 10, 19, 752 P.2d 719, 724; Rozzel Corp. v. Dept. of 

Public Service Regulation, et al. (1987), 226 Mont. 237, 243, 735 

P.2d 282, 286; Akhtar v. Van De Wetering (1982), 197 Mont. 205, 

209, 642 P.2d 149, 152; Peters v. Newkirk (Mont. 1981), 633 P.2d 

1210, 1212. Furthermore, regardless of whether one or another of 

the DeLongs have relinquished an interest, the question still 

arises, "What interest did they relinquish?I1 We cannot answer this 

question because we cannot divine the intent of the testatrix. 

While the residual portion of the will is invalid, the 

remainder of the will is valid. As we stated In Re Bernheimls 
Estate (1928), 82 Mont. 198, 213, 266 P. 378, 384: 

Where a will contains different provisions, some of which 

are valid by law and others invalid, those which are 

valid will be upheld, if they can be separated from those 

which are invalid without violating the testator's 

general intention, and as to the parts which are invalid 

the testator may be held to have died intestate. . . . 

In this present case, the residual portion of the will is 

invalid due to the lack of testamentary intent, but the rest of the 

will, revoking all other wills and appointing Helen DeLong as the 

personal representative, is valid. Accordingly, because the real 

and personal property of the decedent Doris I. DeLong is not 

effectively disposed of by her will, that property passes under the 

laws of intestate succession. Section 72-2-201, MCA; Dahood v. 

Frankovich (1987), 229 Mont. 287, 289, 746 P.2d 115, 116. 

The problems encountered with the will in this case illustrate 

how treacherous it is to rely on preprinted form wills. At the 

time the decedent executed the will she may have saved herself the 

expense of a lawyer, but in the end her presumed devisees lost it 

all to intestacy. 

? fla &&, 

Justice 4 

We Concur: