No. 84-542 

114 THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

IN THE MATTER OF THE ESTATE OF 

ETHEL E. EVANS, 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: 

Morrow, Sedivy & Bennett; Lyman H. Bennett, 111, 

Bozeman, Montana 

For Respondent: 

John L. Hollow, Helena, Montana 

M.K. Daniels, Deer Lodge, Montana 

Thomas R. Scott, Dillon, Montana 

Submitted on Briefs: May 9, 1985 

Decided: July 12, 1985 

Filed: 3111. ! .: 1985 

Clerk 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

Co-personal representative, daughter of the decedent, 

appeals from an order of the Third Judicial District, Powell 

County, requiring distribution of the residuary estate in 

equal one-eighth (1/8) shares to decedent's named grandchildren. The order denied rej-mbursement for attorney fees and 

costs incurred by appellant. 

We affirm. 

Appellant has asked this Court to consider two issues: 

Does decedent's will require a distribution in 

equal shares to all eight named grandchildren or an equal 

distribution to the two branches of the residuary devisees? 

2. Is appellant entitled to attorney fees and costs in 

the District Court and on appeal in prosecuting this action 

outside the probate? 

Ethel E. Evans, a widow, duly executed her last will 

and testament in Deer Lodge, Montana, on April 28, 1983. She 

died November 25, 1983, at the age of eighty-six, survived by 

two daughters, eight grandchildren, and a. number of greatgrandchildren. Her son, Charles Evans, predeceased her 

without issue. 

Her will was admitted to probate December 1, 1983, in 

the District Court of the Third Judicia.1 District. Her two 

daughters, Lois E. Geary of Deer Lodge, Montana, and Meryl 

Kovatch of Hastings, Nebraska, were appointed co-personal 

representatives with directions "to act without bond or other 

security for the faithful performance of their duties." 

Co-personal representatives hired the attorney who had 

prepared the will to handle the probate of the estate. Upon 

disagreement on distribution of the estate, Meryl Kovatch 
filed a petition September 5, 1984, stating that she had 

hired independent legal counsel. Her petition noted! her 

disagreement with the other representative and "the attorney 

of the estate" about the interpretation of the will. She 

asked for an ord-er distributing the residuary estate one-half 

to her two children and one-half to the six children of her 

sister, Lois Geary. She also requested "reasonable attorney 

fees from the estate in addition to any other attorney fees 

that may he allowed in the probate of the estate." 

Following extensive briefs, a hearing September 20, 

1984, and subsequent memoranda, the court issued its order 

October 25, 1984. The court concluded that the "language of 

the will taken'as a whole" clearly and unambiguously required 

distribution of the residuary estate in "one-eighth equal 

shares to the named grandchildren" and that par01 evidence 

was unnecessary. Further, the court found that petitioner 

was acting on behalf of her children and not the estate and 

therefore was not due attorney fees and costs. 

Issue No. - - 1: Distribution of - Residuary Estate. In 

Paragraph I, Mrs. Evans listed her heirs and their relationship to her. She also stated that her only son had predeceased her without issue. Paragraph I1 governed the 

appointment of both her daughters as co-personal representatives. Mrs. Evans disposed of her estate in Paragraph 111: 

(1) specific d.evises of $10,000 each to her two named daughters with any taxes to come from the residuary estate; (2) 

directions to sell real and personal property with a plan to 

allow a fair chance for all her heirs to purchase; and (3) 

the residue of the estate to her grandchildren. 

The provisions of the will under question follow: 
"I. 

"I am a widow. My son, Charles Evans 

predeceased me, leaving no issue. My 

surviving heirs are as follows: MY 

daughter LOIS GEARY, Deer Lodge, Montana, who has the following children, 

to-wit: RICHARD M. GEARY, Helena, Montana, JOYCE M. SCOTT, Grangeville, 

Idaho, ROBERT E. GEARY, Helena, Montana, 

ELAINE M. OLSEN, Helena, Montana, JOAN 

C. SMITH, Missoula, Montana, and DANIEL 

C. GEARY, Helmville, Montana; and my 

daughter, MERLE [sic] A. KOVATCH, 

Hastings, Nebraska, who has the following child.ren, to-wit: THOMAS S. 

KOVATCH, Missoula., Montana, and JAMES P. 

KOVATCH, Hastings, Nebraska. 

"I devise my estate as follows: 

"To each of my daughters, LOIS E. GEARY 

and MERLE [sic] A. KOVATCH, I give the 

sum of Ten Thousand Dollars ($10,000). 

Any death or inheritance tax to which 

said devisees may be subject shall paid 

from my residuary estate. 

". . . [Provision on liquidation of 

property.] 

"All of the rest, residue and remainder 

of my estate, real, personal and mixed, 

of every nature, kind and description, 

wherever situated and however held, 

which is and may be subject to my testamentary - disposition at - the time of my 

death, I give to grandchildren, 

Richard M. Geary, Joyce - M. Scott, Robert 

- E. ~earc Elaine 5 Olson, Joan -- C. 

Smith, Daniel C. Geary, Thomas S. 

Kovatch and James P. Kovatch, in equz 

shares, per stirpesand -- not ~er capita." 

(Emphasis added. 

Appellant contends that the language "per sti.rpes and 

not per capita" requires a distribution according to the 

"roots of inheritance" set out in Paragraph I, i.e., her 

daughter Lois Geary who has six children and her daughter 

Meryl Kovatch who has two children. 
Respondent contends that the grandchildren were 

specifically named as takers in the residuary provision and 

not segregated into separate classes in the devise. Paragraph I denotes the usual family history and not how the 

grandchildren are to take under Paragraph 111. Since the 

grandchildren are the primary legatees, "per stirpes" refers 

to how their issue would take as substitute legatees should 

one grandchild predecease the testatrix, respondent contends. 

"Per stirpes" does not refer to the living ancestors, testatrix's daughters, who are not takers under this provision. 

We hold that the testatrix clearly intended her grandchildren to take in their own right equally and not by right 

of representation through their living parents. 

The words "per stirpes" mean by the root or stock. The 

phrase d-enotes a taking by right of representation of that 

which an ancestor of the parties would take if living. Wood 

v. Brown (Cal. 1946), 162 P.2d 859, 861. Persons who take 

per stirpes do so in a representative capacity and, standing 

in the place of a deceased ancestor, take only what he would 

have taken had he lived. Makoff v. Makoff (~tah 1974), 528 

P.2d 797, 799; Gustafson v. Swenson (Mass. 1976), 347 N.E.2d 

701, 703; In re Robins Estate (D. D.C. 1941), 38 F.Supp. 468, 

471. 

Ordinarily the words "per stirpes" are used to denote 

substitution in case of the death of the primary legatee. 

When descendants take by representation of their parents, 

they are said to take "per stirpes," i.e., children take 

among them the share which their parent would have taken if 

living. Fidelity Union Trust Co. v. Farley (N.J. 1940), 13 

A.2d 313, 315. "Per stirpes" is not applicable to named 

legatees or legatees designated as a class, but rather to 
their descendants by representation. The ordinary use of 

"per stirpes" relates to the distribution of substantial 

gifts to substituted legatees in case of death of the primary 

legatee. Johnson v. Swann (Md. 1956), 126 A.2d 603, 606. 

The intention of the testator should control the disposition and the intent should "be found from all parts of the 

will . . . construed in relation to each other . . . to form 

one consistent whole." In the Matter of the Estate of Erdahl 

(Mont. 19811, 630 P.2d 230, 231, 38 St.Rep. 978, 980. 

Appellant asks for a strained construction of the will 

to determine intent of the testatrix. Mrs. Evans named her 

grandchildren to take "in equal shares" the entire residuary 

estate. She made limited equal specific devises to her 

daughters as all they would take under her will. Her daughters were not named to take under the residuary provision, 

and under Montana's antilapse provision would never take the 

residuary estate under the will. Sections 72-2-512 and 

72-2-513, MCA. She did not expressly provide that the grandchildren were to take by relationship to their mothers and 

not in their own name. 

The fact that the ancestors (here Mrs. Evans' daughters) are living shows that the beneficiaries are not to take 

in their place and that they are referred to for the purpose 

of designating the beneficiaries. People's National Bank of 

Greenville v. Harrison (S.C. 1941), 18 S.E.2d 1, 6. When a 

gift in a clause "in equal shares, share and share alike," to 

twelve persons was designated by name and as descendants of 

other persons, the court in Rhode Island held that this 

required a division into twelve shares for distribution. 

Naming the ancestors merely identified the legatees and did 

not divide them into classes with the intention that each 
class take one-third. Winsome v. Brown (R.I. 1927), 136 A. 

434, 436-437. Where beneficiaries take directly under a 

devise, they take as individuals and not in their representative capacity and if the testator(rix) provides that it shall 

be in equal proportions, then they take equally. Coppedge v. 

Coppedge (N.C. 1951), 66 S.E.2d 777, 780. 

Other jurisdictions have interpreted language similar 

to the provision in Mrs. Evans' will. Where a will stated 

"share and share alike, per stirpes, and not per capita," the 

New Jersey court held that the distribution would go equally 

to each niece in 1/8 shares and not 1/2 to three daughters 

and 1/2 to the other five daughters on another branch. 

Camden Safe Deposit & Trust Co. v. MacMullan (New Jersey 

1933) , 165 A. 105, 106. The New York court interpreted 

language, "and to the issue of such as may have died leaving 

issue them surviving, per stirpes and not per capita," to 

intend that the stirpital distribution should apply only to 

the issue of any deceased devisees who themselves take as a 

single class with equal shares. In re Title Guarantee & 

Trust Co. (New York 1914), 144 N.Y.Supp. 889, 893, aff'd 106 

N.E. 1043. 

In a later case, the New York court interpreted "per 

stirpes and not per capita" following a bequest to nieces and 

nephews "share and share alike," as not relating back to the 

immediate ancestors of the nieces and nephews for distribution. Rather, it does not go back past the class that are 

the legatees. In re Ives' Estate (New York 1936), 291 

N.Y.Supp. 981, 983. 

Mrs. Evans' will, taken as a whole, showed fairness and 

equality. She treated her daughters equally in the specific 

devises, although one lived close by, the other in Nebraska. 
She appointed both daughters to administer the estate 

co-equally, without bond. In providing a method by which her 

descendants could purchase her real and personal property 

without unnecessary wrangling, at an appraised price, she 

determined priority of choice would "be according to age in 

case the same items if [sic] desired by two or more of my 

heirs." She showed no preference for "stock," "stirp," or 

branches of devisees. 

Finally, she named each of her grandchildren, without 

separating into categories, to take "in equal shares." There 

is no indication in the provision or the will in its entirety 

of intention to favor the less prolific stock. "Intention of 

the testator controls." Section 72-2-501, MCA. The attorney 

who drafted the will in representing the estate supports the 

position that it was Mrs. Evans' intention to devise the 

residue to all eight grandchildren equally. 

Mrs. Evans named her heirs in order to identify the 

devisees. She did not divide them into classes. Taking 

directly under the devise, the grandchildren take as individuals and not in their representative capacity. Their issue, 

Mrs. Evans' great-grandchildren, would have taken "per stirpes" (in a representative capacity) should a grandchild have 

predeceased testatrix. Mrs. Evans' daughters are. living, are 

not named devisees under the residuary provision, and are not 

intended "stirp" for purposes of determining distribution. 

The grandchildren are not taking wh.at their mothers are 

entitled to, but what they in their own names are to take "in 

equal shares" under the wil.1. The District Court correctly 

interpreted the will to apportion eight equa 1 individual 

shares to Mrs. Evans' grandchildren. 
Issue -- No. 2: Attorney -- fees and. costs -- in the District 

Court --7 and on appeal. Meryl Kovatch as a co-personal representative was a fiduciary of the estate with the duty to 

settle and distribute the estate according to the terms of 

the will and the code in the best interests of the estate and 

of the successors to the estate. Section 72-3-610, MCA. By 

admission in her petition, she sought independent legal 

counsel to propose an interpretation contrary to that propounded by the attorney for the estate who had also drafted 

the will. 

Appellant contends that she was a duly nominated personal representative who prosecuted this proceeding in good 

faith and thus is entitled to costs and attorney fees in the 

District Court and on appeal pursuant to 5 72-3-632, MCA. We 

disagree. Where there are two or more appointed 

co-representatives, concurrence is required on all acts 

connected with the administration and distribution of the 

estate. Section 72-3-622, MCA. Without the concurrence, 

Mrs. Kovatch was not acting on behalf of the estate. She 

undertook this cause to benefit some of the successors at the 

expense of others. She compromised her duty to settle and 

distribute the estate expeditiously and efficiently pursuant 

to her fiduciary duties of 5 72-3-610, MCA, and thwarted the 

purpose of the code to promote efficiency in liquidation and 

distribution. Section 72-1-102, MCA. "[Als a matter of 

public policy, it would be unwise to allow the funding of: 

litigation out of an estate residue." In the Matter of the 

Estate of Dygert (1976), 170 Mont. 31, 33, 550 P.2d 393, 394. 

Finally she is not a "party aggrieved" within Rule 1, 

M.R.App.Civ.P., for purposes of this appeal. While a personal representative may request the District Court to interpret 
the will under 5 72-3-605, MCA, Mrs. Kovatch has no standing 

to appeal the resulting court order. Because she is not a 

residuary devisee, she has no interest adversely affected by 

the order. 

We hold that the court properly interpreted the provision in testatrix's will devising the residuary estate in 

equal shares to her eight named grandchildren. We hold that 

appellant did not prosecute this action in good faith a.s a 

fiduciary of the estate and its successors, and thus the 

court properly denied attorney fees a.nd costs. 

Affirmed. 

We concur: 

Justices 
Mr. Justice Fred J. Weber dissents as follows: 

In substance the majority concludes that it is fair to 

distribute the property equally t o a l l eight grandchildren so 

that no grandchild obtains a greater share than any other. 

That is an attractive analysis. However, it does not address 

directly the contradictions in language contained in the 

will. 

In pertinent part, the will provides: 

"All of the rest, residue and remainder 

of my estate . . . I give to my grandchildren, Richard M. Geary, Joyce M. 

Scott, Robert T. Geary, Elaine M. Olsen, 

Joan C. Smith, Daniel C. Geary, Thomas S. 

Kovatch and James P. Kovatch, in equal 

shares, per stirpes and not per capita." 

The majority concludes that this provision indicates a clear 

intent that the grandchildren take in their own right and not 

by any representation through their living parents, who are 

the daughters of the deceased. I do not believe that conclusion can he drawn from the wording itself. 

The majority does not discuss the definition of the 

words "per capita." 4 W. Bowe and D. Parker, Page on the Law 

- of Wills § 36.6, at 556 states: 

"A distribution per capita is an equal 

division of the property to be divided 

among the beneficiaries, each receiving 

the same share as each of the others, 

without reference to the immediate course 

of descent from the ancestor. A distribution per capita is an equal division 

among the beneficiaries, each receiving 

the same share as the others." 

It is important to note that a distribution "per capita" is 

an equal division among the named parties. As a result the 

words "not per capita" as used in the will clearly indicates 

that the devise is - not to be in equal shares to all eight 

grandchildren. 

The will provision states that the testatrix gives the 

property in equal shares, per stirpes. Under the definition 
of per stirpes contained in the majority opinion, that is the 

same as stating that she gives to her grandchildren, with 

one-half in equal shares to the children of her daughter 

Lois, and the remaining one-half in equal shares to the 

children of her daughter Meryl. That interpretation is 

consistent with the words "not per capita," which in substance means that the property is not to go in equal shares 

t.o all eight grandchildren. 

My conclusion is that th~ quoted will provision provides 

a per stirpes distribution under which one-half would go to 

six of the children, equally, and the remaining one-half 

would go to two of the children, equally. 

Considering the other provisions of the will as well, I 

conclude that the quoted clause is contradictory or at least 

ambiguous, and that additional evidence should be obtained to 

determine the intent of the testatrix. I would remand the 

cause to the District Court for further proceedings to establish such intent. 

I concur'in the foregoing diss f Mr. Justice Weber: