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 2 4 1979 - Filed : : I?$; d_ lm 

d~~ Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court . 

~olly Burke Herrin appeals from a determination of the 

District Court of the First Judicial District, the Honorable 

Gordon R. Bennett presiding without a jury. This action 

arose when Keith W. Herrin petitioned the District Court for 

an order directing that certain payments be made to him, 

pursuant to the terms of the divorce decree which dissolved 

the parties' marriage. In dispute is the interpretation of 

a property settlement agreement, which incorporated a stock 

purchase-and-sale agreement, and which itself was incorporated into a divorce decree. 

The facts leading to this dispute are as follows. On 

February 14, 1969, petitioner Keith W. Herrin entered into 

an agreement with his brother Gordon R. Herrin under the 

terms of which Keith was to sell and Gordon was to purchase 

481 shares of capital stock in Herrin 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 his brother. In turn, the 

property settlement agreement was incorporated into the 

divorce decree, entered August 18, 1969, under the terms of 

which respondent was awarded custody of the parties' six 

children, all of whom were minors at the time. The youngest 

child, Keith W. Herrin, Jr., who was blind and required 

extraordinary care, died at age 11, on ~pril 6, 1970. As 

will become apparent, these latter facts are significant in 

light of the terms of the agreements in dispute. 
The property settlement agreement reads in pertinent 

part as follows: 

"4. Second Party [Keith Herrin] hereby makes to 

First Party [Molly Herrin] the following qualified 

or conditional assignment of that certain 'STOCK 

PURCHASE AND SALE AGREEMENT' between First Party 

and one Gordon T. Herrin, dated the 14th day of 

February, 1969, the subject matter 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 last mentioned 

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, or while 

there is any money or property left in any trust 

aforesaid, then said Trust shall cease and all of 

the property and income and corpus of said trust 

shall revert to Second Party, and automatically 

be and become his sole property. " 

The omitted portion recites other conditions inapplicable to 

the problem 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 

the point. The antecedent condition, Keith, Jr.'s death, 

was fulfilled; thus, consideration of the last condition of 

paragraph 4 became imperative, As appellant correctly 

states, there was never any trust, such that, upon Keith 

Jr.'s death, it should cease and its property and income 

revert to respondent, 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 trust was established, it could 

not cease; there being no trust, there was no property and 

income to revert to respondent. The payments forthcoming 

under the terms of the stock purchase-and-sale agreement, 

claims appellant, were assigned to her personally and not as 

a trustee, through the property settlement agreement. 
Because they were so assigned and because no trust was 

created, appellant argues that she is entitled to continue 

receiving the payments made by Gordon T. Herrin under the 

stock agreement, 

Appellant argues that the mandate of section 13-704, 

R.C.M. 1947, governs this case. There it is provided that 

"[tlhe language of a contract is to govern 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 statute reads in its entirety, "[wlhen 

a contract is reduced to writing, the intention of the 

parties is to be ascertained from the writing alone, if 

possible; subject, however, to the other provisions of this 

chapter." According to appellant, the clear and explicit 

language of the instrument dictates that she continue receiving the payments, The conditions requiring creation of 

a trust never came to pass; because there was no trust, 

reversion of its corpus is an impossibility. 

The District Court judge acknowledged that Molly Herrin 

"contends that condition 5 actually requires a trust to have 

been created to entitle petitioner [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 interpretation give effect to the parties' 

intention as it existed at the time of 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 in need of its benefits, the payments were to be made to respondent herein. 

The court determined that: 
"In light of the whole separation agreement, 

it is clear that at the time the agreement 

was created, the parties intended that the 

assignment be for the benefit of Keith, Jr., 

and if he died, the purpose of the assignment 

would fail and the payments were to revert 

back to the petitioner [Keith Herrin.] There is 

no indication that the parties intended the payments to be for the benefit of the respondent 

[Molly Herrin] considering the language of the 

entire instrument and the conditions in paragraph 4." 

In reaching that conclusion, the judge relied on the 

following interpretation of 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 stock purchase and sale agreement 

or while there are assets in any trust created 

pursuant to paragraph 4, -- then ail property 

pursuant -- to the stock purchase -- and sale agreement, - --- and all the corpus and income in any 

trust pursuant to paragraph 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 "all property 

pursuant to the stock purchase and sale agreement". That 

has been interpolated by the District Court, Those words 

cannot be found in the original; neither can anything remotely correspondent to them be found there. If the language of the instrument is to control, as it must according 

to statutory rules of interpretation of contracts, this 

interpolation is improper. 

Section 93-401-15, R.C.M. 1947, states the general rule 

that in construing an instrument, a judge's office is simply 

to ascertain and declare what it contains in terms or in 

substance, not to insert omitted matter or omit matter 
inserted. See United States v. Seaboard Surety Co. (D. 

Mont. 1938), 26 F.Supp. 681, 688, aff'd 

-- 

sub nom. Watsabaugh 

is Coo v. Seaboard Surety Co. (9th Cir. 1939), 106 ~.2d 355. 

A court has no authority to disregard the express language 

used by the parties. E.g., Williams v. Insurance Company of 

North America (19671, 150 Mont. 292, 295, 434 p.2d 395, 397. 

It is reversible error for the District Court to insert into 

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, that paragraph 4 

itself begins with specific reference to "the following 

qualified - or conditional assignment" of payments to be made 

by Gordon Herrin under the stock purchase-and-sale agreement. Appellant does not contest that qualifications and 

conditions were elaborated in the instrument. Two of the 

conditions, those of appellant's death or remarriage, never 

came to pass. The other condition, that of Keith, Jr.'s 

death, was fulfilled so as to activate 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 "all of the 

property and income and corpus of said trust shall revert". 

Again, there never was a trust, the property, income and 

corpus of which could revert to anyone. The language of the 

document controls its interpretation, and appellant's interpretation is correct on this point. 

Of course, the problem is that the sentence contains an 

unspoken presumption--that there is or will be a trust which 

will be susceptible of cessation and the corpus and income 

of which susceptible of reversion. The sentence bespeaks 
careless 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 

this Court not to rewrite contracts for disgruntled litigants. 

While a court may interpret contracts which are open to 

interpretation, a court may - 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 at 895, and cases cited therein. 

We are aided in our decision to reverse, albeit somewhat reluctantly, the District Court, 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 all of his shares of the capital stock of the 

ranch to his brother two weeks before filing for divorce 

from his wife of some twenty years. The ranch was the only 

substantial asset of the marriage; 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, as respondent asserts, that she received money for 

support of the children and that she was able to rent the 

family home for a "low" monthly sum, which rental was deducted each month from the payments 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 to receive 

moneys paid under the stock agreement. 
The judgment of the District Court is reversed. The 

payments from the stock purchase-and-sale agreement belong 

to appellant herein; the money paid to the District Court 

during the pendency of the action below and all subsequent 

payments are to go to appellant. 

We concur: 

2&&%- I 

ChieY Justice 

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Justices 

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