No. 13447 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

STATE OF MONTANA, ACTING BY AND THROUGH 

THE STATE FISH AND GAME COJpMISSION, 

Plaintiff and Appellant, 

PAUL T. KELLER, Executor of the Estate of 

Kay Kuhns, Deceased et al., 

Defendants and Respondents. 

Appeal from: District Court of the First Judicial District, 

Honorable Peter G. Meloy, Judge presiding. 

Counsel of Record: 

For Appellant: 

Clayton R. Herron argued, Helena, Montana 

For Respondents : 

Keller, Reynolds and Drake, Helena, Montana 

Paul T. Keller argued, Helena, Montana 

Tipp and Hoven, Missoula, Montana 

Vernon Hoven argued, Missoula, Montana 

Submitted: May 25, 1977 

~ecided : AU G 2 2 1977 

-- 

Filed: 4UL 2 ;! i97? 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

Plaintiff appeals from the district court's determination 

in a declaratory judgment suit to construe a will that there was 

no ambiguity in the the will and defendants were entitled to 

distribution of certain real property. 

Plaintiff is the state of Montana Fish and Game Commission. 

In his will executed October 22, 1971, Ray Kuhns devised to the 

State Fish and Game Commission certain real property which constituted the bulk of a ranching and farming operation he owned 

near Kalispell, Montana. He specifically excepted from the devise 

a 3-1/2 acre area surrounding the ranch buildings, the original 

homestead. Kuhns then disposed of the remainder of his estate 

by a residuary clause which gave a11 his remaining property to 

his heirs at law. This included real property he owned near Essex, 

Montana, his home outside of Helena, Montana, and the 3-1/2 acre 

area excepted from the devise to plaintiff. 

The paragraph devising the ranch lands to the State Fish 

and Game Commission stated: 

"SECOND: I hereby give, devise and bequeath to the 

STATE OF MONTANA all of my interest in the land in 

Sections Twenty (20), Twenty-one (21), Twenty-eight 

(28) , Twenty-nine (29) , Thirty (30) , and Thirtythree (33), Township Thirty (30) North, Range Twentytwo (22) West in Flathead County, Montana, with the 

exceptions of three and one-half (3-1/2) acres heretofore surveyed surrounding the ranch buildings, the 

same is being given to the State of Montana for the 

use and benefit of the FISH AND GAME COMMISSION for 

wildlife management and for public outdoor recreation." 

At his death on September 2, 1973, Ray Kuhns did not have an 

interest in Section 30, Township (30) North, Range 22 West in 

Flathead County, Montana, nor did he ever have an interest in 

that section. Section 30 was owned partly by the state of Montana 

and partly by other private individuals. Kuhns did, however, 

own 160 acres of land in Section 32 of that same township and 

range. This land was adjacent to the lands owned by him in 
Sections 29 and 33 devised to the State Fish and Game Commission 

by paragraph SECOND of decedent's will. 

After the filing of decedent's will for probate, the 

district court entered a "DECREE OF PARTIAL DISTRIBUTION" distributing to plaintiff lands in Sections 20, 21, 28, 29 and 33 as 

provided for in decedent's will. The decree did not distribute 

to plaintiff any land in Section 32. Plaintiff reserved the 

right to bring before the district court a determination of the 

questions and issues presented in the instant action. 

Plaintiff filed a complaint for declaratory judgment 

naming Paul T. Keller, the executor of Kuhns' estate, and Kuhns' 

heirs as defendants. Plaintiff alleged decedent intended to 

devise to plaintiff the 160 acres in Section 32 and the scrivener 

merely erred in writing "Section Thirty (30)" in decedent's will 

rather than "Section Thirty-two (32)". Defendants answered the 

will was not ambiguous and, therefore, was not subject to interpretation. 

The district court found the will was clear and that the 

description in controversy was a "completely, total, adequate 

and legal description of existing private real property." It 

concluded the will was unambiguous and plaintiff was not entitled 

to distribution under decedent's will of any property in Section 

32, Township 30 North, Range 22 West. The court entered a decree 

declaring defendants Edith Kuhns, Myrtle Schump, Thomas W. Mullin 

and Anthony J. Mullin were entitled to distribution of the lands 

decedent owned in Section 32. Plaintiff appealed. 

Plaintiff raises four issues on appeal: 

1. Does the evidence support the district court's 

findings that the will was unambiguous and that the description 

in controversy was a complete, total, adequate and legal description of existing private property? 
2. Do the district court's findings support its conclusions of law? 

3. Did the district court err in refusing to admit 

plaintiff's exhibit two into evidence? 

4. Did the district court err in admitting defendants' 

exhibit 4 into evidence? 

The first two issues may be consolidated into whether a 

party may show by extrinsic evidence that by a devise of certain 

described real property which the testator never owned nor had 

an interest in, the testator actually intended to devise certain 

other real property which he did own. This issue has not previously been before this Court. 

In construing a will the paramount rule is that the intestator's intent gathered from the words of the will governs the 

interpretation of the will. Section 91-201, R.C.M. 1947 (repealed 

by Sec. 2, Ch. 365, Laws 1974, and replaced by section 91A-2-603, 

R.C.M. 1947.) In re Hume's Estate, 128 Mont. 223, 272 P.2d 999 

(1954). Extrinsic evidence is not admissible to add words to, or 

to take words away from, those in the will, or to contradict the 

will's language. Section 91-206, R.C.M. 1947; 4 Bowe-Parker: Page 

on Wills, S32.1, p. 230. Extrinsic evidence is admissible to 

show the existence of a latent ambiguity. Section 91-224, R.C.M. 

1947 provides: 

"When, applying a will, it is found that there is 

an imperfect description, or that no person or 

property exactly answers the description, mistakes 

and omissions must be corrected, if the error appears 

from the context of the will or from extrinsic 

evidence; but evidence of the declarations of the 

testator as to his intentions cannot be received." 

Plaintiff contends that because testator did not own 

property in Section 30, a latent ambiguity exists, thus allowing 

the admission of extrinsic evidence of the testator's intent to 

explain the ambiguity. Defendants counter the description "all 
of my interests in the land in Sections * * * Thirty (30) * * *" 

perfectly describes existing real property. They contend the 

description is not made ambiguous by the fact the decedent 

never had any interest in land in Section 30. They conclude because the description is unambiguous, extrinsic evidence is inadmissible to show what the decedent meant by it. 

Section 91-224, requires that if extrinsic evidence shows 

there is either an imperfect description or that no property 

exactly answers the description, the mistake must be corrected. 

Was there, then, an imperfect description or no property that 

exactly answers the description? The district court found that 

real property exists which exactly answers the description 

"Section Thirty (30) , Township Thirty (30) North, Range TwentyTwo (22) West, in Flathead County, Montana." The district court 

also found it was a perfect description of real property. It 

was not, however, a perfect description of real property owned by 

the testator, as the testator had no interest in that particular 

section. A testator is presumed to have intended to dispose of 

property which he owned, rather than property of another over 

which he had no power of testamentary disposition. Gano v. Gano, 

239 Ill. 539, 88 N.E. 146, 147 (1909); Collins v. Capps, 235 

Ill. 560, 85 N.E. 934, 935 (1908); 4 Bowe-Parker: Page on Wills, 

533.18, p. 320 (1961). Contra, In re Lynch's Estate, 142 Cal. 

373, 75 P. 1086, 1088 (1904). 

In light of this presumption, we hold a description of 

property is an "imperfect description" within the meaning of 

section 91-224, if it is a description of property over which the 

testator had no power of testamentary disposition. The description 

is "imperfect" because it describes property in which the testator 

had no interest. As the testator Kuhns had no 
interest in "Section Thirty (30), Township Thirty (30) North, 

Range Twenty-two (22) West, in Flathead County, Montana"; it 

is an imperfect description. 

Section 91-224 requires that when there is an imperfect 

description, the mistake or omission must be corrected. The 

question remains how to correct the mistake or omission. The 

court will not rewrite a testator's will for him by substituting 

what the court thought the testator intended for the erroneous 

provision. In re Kahoutek's Estate, 39 N.D. 215, 166 N.W. 816, 

818 (1918). The court must be guided by the testator's intent 

as expressed in his will. 

" * * * if, after the false description or part 

of a description is discarded, there remains 

in the devise language sufficiently full and 

accurate to identify the subject of the gift 

with sufficient certainty, the property thus 

indicated will pass; but if, on the other hand, 

when the false description is eliminated from 

the will there is not enough left to afford a 

basis for identifying the subject of the gift, 

nothing can pass,* * *"4 Bowe-Parker: Page on 

Wills S33.16, p. 314. 

'fzfch v. White, 117 U.S. 210, 6 S.Ct. 617, 29 L.ed. 860. 

When the false words are struck from testator's description, we have left "I hereby give, devise and bequeath to the 

STATE OF MONTANA all of my interest in the land in Sections Twenty 

(20) , Twenty-one (21) , Twenty-eight (28) , Twenty-nine (29) , I 

and Thirty-three (33) * * *." No language remains in the devise 

to demonstrate with sufficient certainty the testator intended 

Section 32 to pass under this paragraph. In re Lynch's Estate, 

supra. In re Kahoutek's Estate, supra. This is not an instance 

of a general description of property sought to be devised followed 

by a specific description of that property which is uncertain. 

Stuesse v. Stuesse, (Mo. 1964) 377 S.W.2d 389. To allow plaintiff 

to show by extrinsic evidence that the testator allegedly intended 

to devise to plaintiff his lands in Section 32 without any indication 
of such an intent expressed in the will would be to rewrite the 

testator's will. This we cannot and will not do. Before such 

extrinsic evidence is admissible, plaintiff must show from the 

face of the will that that was the testator's intent. Thus, 

the devise of "Section Thirty (30)" passes nothing to the 

plaintiff. 

Given our conclusion as to the first two issues raised 

by plaintiff, we find it unnecessary to discuss the evidentiary 

issues. 

Judgment affirmed. 

Justice 

We concur: