No. 13447 INTHE 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 etal., 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 : 

### AUG

### 22 

### 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 therewas
no ambiguity in the thewill and defendantswere entitled to distribution of certain real property. Plaintiff is the stateof Montana Fish and Game Commission. Inhis 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 ranchbuildings, the same is being given to the Stateof 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 inSections 29 and 33 devised to the State Fish and Game Commission by paragraph SECOND of decedent'swill. After the filing of decedent's will for probate, the district court entered a "DECREEOF PARTIAL DISTRIBUTION" distributing to plaintiff lands in Sections 20, 21, 28, 29 and 33 as provided for indecedent'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 issuespresented 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 "SectionThirty (30)" in decedent'swill rather than "SectionThirty-two (32)". Defendants answered the will was not ambiguous and, therefore,was not subject to interpretation. The district court found thewill was clear and that the description in controversywas a "completely,total, adequate and legal description of existing private real property." It concluded thewill was unambiguous and plaintiff was not entitled to distribution under decedent's will of any property in Section 32, Township 30North, 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, adequateand 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 intowhether a party may showby 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 issuehas not previously been before this Court. In construing awill the paramount rule is that the intestator's intent gathered from the words of the will governs the interpretation of thewill. 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, 128Mont. 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

onWills, 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 declarationsof 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 "allofmy 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 decedentmeant by it. Section 91-224, requires that if extrinsic evidence shows there is either an imperfectdescription or that no property exactly answers the description, themistake must be corrected. Was there, then, an imperfectdescription 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 itwas 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, 88N.E. 146, 147 (1909); Collins

### v. Capps, 235 Ill. 560, 85

### N.E. 934, 935 (1908); 4 Bowe-Parker: Page onWills, 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 "imperfectdescription" within themeaning 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 nointerest in "Section Thirty (30),Township Thirty (30)North, Range Twenty-two (22)West, in Flathead County, Montana"; it is an imperfectdescription. Section 91-224 requires that when there is an imperfect description, the mistake or omissionmust be corrected. The question remains how to correct the mistake or omission. The courtwill 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, 166N.W. 816, 818 (1918). The courtmust 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 canpass,*

## * *"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 falsewords are struck from testator's description,we have left "Ihereby give, devise and bequeath to the STATE OF MONTANA all ofmy interest in the land in SectionsTwenty

(20)

## ,Twenty-one (21)

## ,Twenty-eight (28)

## , Twenty-nine (29)

## , I and Thirty-three (33)

## * 

## * *." No language remains in the devise to demonstratewith 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 isnot an instance of a general description of property sought to be devised followed by a specific description of that property which isuncertain. Stuessev. Stuesse, (Mo. 1964) 377 S.W.2d 389. To allowplaintiff to showby extrinsic evidence that the testator allegedly intended to devise to plaintiff his lands in Section 32without any indicationof such an intent expressed in the will would be to rewrite the testator's will. Thiswe cannot and will not do. Before such extrinsic evidence is admissible,plaintiff must show from the face of the will that thatwas the testator's intent. Thus, the devise of "Section Thirty (30)" passes nothing to the plaintiff. Given our conclusionas to the first two issues raised by plaintiff,we find it unnecessary to discuss the evidentiary issues. Judgmentaffirmed.

Justice

We concur: