### No. 14404 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978

KEITH W. 

### HERRIN, Petitioner and Respondent,

MOLLY BURKE HERRIN, Respondent and Appellant.
Appeal from: District Court of the First Judicial District, Honorable Gordon R. Bennett, Judge presiding. Counsel of Record: For Appellant: Small and Hatch, Helena, Montana Floyd 0. 

### Small argued and Carl Hatch argued, Helena,

Montana For Respondent: 

### Jackson and Kelley, Helena, Montana Doug Kelley argued, Helena, Montana

Submitted: December 15, 1978 ~ecidedd~N 

## 24

## 1979

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### Filed::I?$; 

### d_

# lm 

# d~~ ClerkMr. JusticeJohn Conway Harrison delivered the Opinion of the Court

# . ~olly Burke Herrin appeals from a determination of the DistrictCourt of the FirstJudicial District, the Honorable Gordon R. Bennett presiding without a jury. This action
arose when Keith W. Herrin petitioned the DistrictCourt for
an order directing that certainpayments be made tohim, pursuant tothe 

### termsof the divorce decreewhich dissolved the parties' marriage. Indispute is the interpretationof
a property settlement agreement, which incorporated a stock purchase-and-sale agreement, and which itself was incorporated into a divorce decree. The facts leading tothisdispute are as follows. On February 14, 1969, petitioner Keith W. Herrin entered into
an agreement with hisbrother Gordon R. Herrin under the 

### terms of which Keith was to 

### sell and Gordon was topurchase 481 shares of capital stock inHerrin Ranch, Inc. Two weeks later, on February 28, 1969, respondent filed a complaint for divorce from appellant Molly Burke Herrin, then his wife. On June 20, 1969, appellant and respondent signed a property settlement agreement which incorporated the agreement made between respondent and hisbrother. In turn, the property settlement agreement was incorporated into the divorce decree, entered August 18, 1969, under the 

### termsof which respondent was awarded custody of the parties' six children, allof whom wereminors atthe time. The youngest child, Keith W. Herrin, Jr., who was blind and required extraordinary care, died atage 11, on ~pril 6, 1970. As 

### willbecome apparent, these latter facts are significant in lightof the 

### terms of the agreements indispute.The property settlement agreement reads inpertinent part as follows: "4. Second Party [KeithHerrin] hereby makes to FirstParty [Molly Herrin] the following qualified or conditional assignment of that certain 'STOCK PURCHASE AND SALE AGREEMENT' between FirstParty and one Gordon T. Herrin, dated the 14thday of February, 1969, the subjectmatter thereof being the 481 shares of the capital stock of Herrin Ranch Inc., a Montana corporation, formerly held by Second Party, a copy of said lastmentioned agreement being hereto attached, marked Exhibit A, and made a part hereof. The conditions and qualifications of said assignment are as follows. 

# .. . If the said Keith W. Herrin, Jr., dies during the term of said agreement, exhibit A hereto, orwhile there is any money orproperty leftin any trust aforesaid, then said Trust shall cease and allof the property and income and corpus of said trust shall revert to Second Party, and automatically be and become his soleproperty.

### " The omitted portion recites other conditions inapplicable to theproblem here, The circumstances which would have called them into play, appellant's death or remarriage, never occurred. Appellant's construction of the above 

### is short and to thepoint. The antecedent condition, Keith, Jr.'s death,
was fulfilled; thus, consideration of the lastcondition of paragraph 4 became imperative, As appellant correctly states, therewas never any trust, such that, upon Keith Jr.'s death, it should cease and its property and income revert torespondent, The conditions requiring the creation of a trust, i.e., appellant's remarriage or death, never occurred; appellant neither remarried nor died, so 

### - no trust
was established. Because no trustwas established, it could not cease; there being no trust, therewas no property and income torevert torespondent. The payments forthcoming under the terms of the stock purchase-and-sale agreement, claims appellant, were assigned toher personally and not as
a trustee, through the property settlement agreement.Because they were soassigned and because no trustwas created, appellant argues that she is entitled to continue receiving the payments made by Gordon T. Herrin under the stock agreement, Appellant argues that themandate of section 13-704, R.C.M. 1947, governs this case. There it 

### isprovided that "[tlhe language of a contract is togovern 

### its interpretation, if the language is clear and explicit, and does not involve an absurdity." So, too, is section 13-705, R.C.M. 1947, applicable; that statutereads inits entirety, "[wlhen
a contract isreduced towriting, the intention of the parties is tobe ascertained from the writing alone, if possible; subject, however, to the other provisions of this chapter." According toappellant, the clear and explicit language of the instrument dictates that she continue receiving the payments, The conditions requiring creation of
a trust never came topass; because therewas no trust, reversion of its corpus is an impossibility. The District Court judge acknowledged thatMolly Herrin "contends that condition 5 actually requires a trust tohave been created to entitlepetitioner [Keith Herrin] to the payments." Relying on sections 13-707 and 13-702, R.C.M. 1947, requiring consideration of the document as a whole and requiring that its interpretationgive effect to the parties' intention as it existed atthe 

### timeof contracting as evidenced by the language of the instrument, Judge Bennett concluded that it was drafted for the benefit of the boy, Keith, Jr., not the appellant, and therefore that, because the child had died and was no longer inneed of itsbenefits, the payments were tobe made torespondent herein. The court determined that:"In lightof the whole separation agreement, it 

### is clear that atthe time the agreement was created, the parties intended that the assignment be for thebenefit of Keith, Jr., and if he died, the purpose of the assignment would failand the payments were torevert back to the petitioner [Keith Herrin.] There is no indication that the parties intended the payments tobe for the benefit of the respondent

[Molly Herrin] considering the language of the entire instrument and the conditions inparagraph 4." In reaching that conclusion, the judge relied on the following interpretationof the property settlement agreement under consideration: "The qualifications and conditions as interpreted by this Court are:

"5. If Keith, Jr., dies either during the term of the stockpurchase and sale agreement or while there are assets inany trust created pursuant toparagraph 4, 

## -- then ailproperty pursuant 

### -- tothe stockpurchase and saleagree

## -- ment,



### - --- and allthe corpus and income in

### any trustpursuant toparagraph 4 revertrto 

### -- the petitioner." (Emphasis addea.) The emphasized portion of the above is troublesome. The actual language of the corresponding portion of paragraph 4 does not include any reference to "allproperty pursuant to the stock purchase and sale agreement". That has been interpolated by the District Court, Those words cannot be found inthe original; neither can anything remotely correspondent tothem be found there. If the language of the instrument is tocontrol, as it must according to statutoryrules of interpretation of contracts, this interpolation is improper. Section 93-401-15, R.C.M. 1947, states the general rule that inconstruing an instrument, a judge's office is simply to ascertain and declarewhat it contains in terms or in substance, not to insertomitted matter or omit matterinserted. See United Statesv. Seaboard Surety Co. (D. Mont. 1938), 26 F.Supp. 681, 688, aff'd subnom. Watsabaugh 

### -- is Coov. Seaboard Surety Co. (9th Cir. 1939), 106 ~.2d 355. A courthas no authority todisregard the express language used by theparties. E.g., Williams v. Insurance Company of North America (19671, 150Mont. 292, 295, 434 p.2d 395, 397. It 

### isreversible error for theDistrictCourt toinsertinto
a contract language not put there by the parties. See Danielson v. Danielson (1977), Mont

# . , 560 P.2d 893, 34 St.Rep. 76. It is true, as respondent emphasizes, thatparagraph 4 itself begins with specificreference to "the following qualified 

### - or conditional assignment" of payments tobe made by Gordon Herrin under the stock purchase-and-sale agreement. Appellant does not contest that qualifications and conditions were elaborated inthe instrument. Two of the conditions, those of appellant's death or remarriage, never
came topass. The other condition, thatof Keith, Jr.'s death, 

### was fulfilled soas toactivate the provision in dispute here. The specific language of the remainder of that sentence says "said Trust shall cease". There never
was a trust. The language of the instrument is "allof the property and income and corpus of said trust shallrevert". Again, there never 

### was a trust, the property, income and corpus of which could revert toanyone. The language of the document controls its interpretation, and appellant's interpretation iscorrect on thispoint. Of course, theproblem is thatthe sentence contains an unspoken presumption--that there is orwillbe a trustwhich 

### willbe susceptible of cessation and the corpus and income of which susceptible of reversion. The sentencebespeakscareless draftsmanship. Nonetheless, the language of the instrument binds the parties, absent agreement, i.e., another contract of sorts, that it not do so. It is the policy of thisCourt not to rewrite contracts for disgruntled litigants. While a courtmay interpret contracts which are open to interpretation, a courtmay 

### - not make a new one for the parties and may not alter or amend one which the parties themselves have made. E.g., Danielson v. Danielson, Mont. at 

## , 560 P.2d at895, and cases cited therein. Weare aided inour decision toreverse, albeit somewhat reluctantly, the DistrictCourt, by the fact that if appellant is deemed unentitled to the payments made under the stock agreement, she takes nothing but her own personal property under the property settlement agreement. Respondent sold allof his shares of the capital stock of the ranch tohis brother two weeks before filing for divorce from his wife of some twenty years. The ranch was the only substantial asset of themarriage; it had been the parties' home for the duration of their marriage; Molly had contributed to the marital unit and to the upkeep of the ranch as
a homemaker. She herself received no maintenance money; she
was not awarded the family home or any part of the ranch property; she kept only her own personal property. While it is true, asrespondent asserts, that she received money for support of the children and that shewas able to rent the family home for a "low" monthly sum, which rentalwas deducted each month from thepayments made by Gordon erri in under the stock purchase-and-sale agreement, the property settlement agreement gives nothing to appellant except her personal belongings and, she argues, the right toreceive moneys paid under the stock agreement.The judgment of the DistrictCourt isreversed. The payments from the stock purchase-and-sale agreement belong to appellant herein; themoney paid to the District Court during the pendency of the action below and allsubsequent payments are to go to appellant.

We concur: 

# 2&&%- I ChieY Justice



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Justices