No. 12849 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

LOUISE STAPLETON, et al., 

Plaintiffs and Respondents, 

-vsBEVERLY A. DE VRIES, et a 1. , 

Defendants and Appellants. 

Appeal from: District Court of the Thirteenth Judicial 

District, Honorable C, B, Sande, Judge presiding. 

Counsel of Record: 

For Appellants: Hibbs, Sweeney and Colberg, Billings, 

Montana 

Maurice Colberg argued, Billings, 

Montana 

For Respondents: Fillner, Snyder and Mudd, Billings, 

Montana 

Russell Fillner argued, Billings, Montana 

Submitted: January 24, 1975 

!&RY 2 T 1975 

Decided : 

' Filed: 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

Defendants Beverly A. DeVries, individually and as 

executrix of the estate of Amanda DeVries, deceased; Emma 

R. Storer; Herman DeVries, Jr.; Loretta M. Kilwein; Gladys J. 

Weimer; and Marcella K. Buckholz bring this appeal from a 

judgment of the district court, Carbon County, awarding plaintiffs Louise Stapleton; Dorothy Pihlaja; Ethel Cestnik; and 

Ruth Johnson, the children of Herman DeVries, deceased, from 

a prior marriage, each an equal one-tenth share of the estate 

of Amanda DeVries. 

Herman DeVries was married twice. As issue of the 

first marriage were born the plaintiffs. As issue of the 

marriage between Herman and A.manda were born the defendants. 

Herman died June 14, 1951. In his will, he stated: 

It I give, devise and bequeath to my beloved wife, 

Amanda DeVries, all the balance, residue and remainder of my property of whatever nature, kind or 

character which I may own at the time of my death 

to have and to hold as her sole and separate property. 

I do this with the knowledge that she will be fair and 

equitable to all of my children, the issue of myself and 

my former wife as well as the issue of herself and 

myself. I I 

On July 15, 1953, in its decree, the district court distributed ~erman's estate to his widow Amanda "as her sole and 

separate property, in accordance with the Last Will and Testament 

Amanda died on November 8, 1971, leaving a will which was 

admitted to probate. It left all her property to her children, 

making no mention of plaintiffs. They contested Amanda's will. 

Their petition to contest the will was dismissed on the ground that 

I I they were not interested persons" under the statute. 

Plaintiffs then filed a complaint alleging, in the alternative, that Herman created a trust for their benefit, or Amanda had 

contracted to leave a portion of her property to them. On the 
basis of depositions taken of the four contestants and their 

proposed witnesses, and on the basis of the estate files of 

Herman and Amanda, the district court granted summary judgment 

finding a trust created by Herman for the benefit of his children 

by previous marriage, the plaintiffs. 

Defendants present three issues for review: 

1. Was a constructive trust created for the benefit of 

plaintiffs in the will of Herman DeVries, deceased? 

2. Was there a contract, promise of agreement, whereby 

Amanda DeVries agreed. to will a portion of her property to 

plaintiffs? 

3. If there was either such trust or contract, are the 

claims of plaintiffs barred by statutes of limitation or laches? 

Defendants argue there was no constructive trust created 

by Herman De~ries' will in favor of plaintiffs. Plaintiffs argue 

that such a trust was created and that the second article of 

~erman's will, when read in light of section 91-201, R.C.M. 1947, 

which provides that a will is to be construed according to the 

intent of the testator, creates a constructive trust in favor of 

plaintiffs as to their share of the estate. 

The second article in Herman De~ries' will reads: 

I I I give, devise and bequeath to my beloved wife, 

Amanda DeVries, all the balance, residue and remainder of my property * * * with the knowledge 

that she will be fair and equitable to all of my 

children, the issue of myself and my former wife, 

as well as the issue of herself and myself." 

This Court construing the second article finds that 

there was no trust created for the benefit of the plaintiffs. The 

will is clear on its face. It gives to Amanda DeVries, outright 

all of the property owned by Herman DeVries at the time of his death. 

The remaining language "with the knowledge that she will be fair 

and equitable to all of my children, the issue of myself and my 

former wife, as well as the issue of herself and myself." is 

merely precatory language, and does not create a trust for the benefit of plaintiffs. 
Both defendants and plaintiffs cite numerous cases to 

support their arguments. We find these cases of little value. 

As stated in In re Sowash's Estate, 62 Cal.App.512, 217 P. 123, 

"* * 9~ the construction to be placed upon the 

instrument is of little value as a precedent in 

aid of the construction of another. And this is 

particularly true of cases involving the existence 

or nonexistence of a precatory trust; for previous 

decisions only served to illustrate the application 

of general rules of construction of wills, which, 

after all, is a matter of impression as to the maker's 

intention made upon the mind of a court considering 

the will itself with the circumstances surrounding its 

execution. Each case must of necessity, therefore, 

depend more or less upon its own peculiar facts. ' 1 

A Utah decision cited by defendants, Miller v. Walker 

676, 

Bank & Trust Company, 17 Utah 2d 88, 404 P. 2d 675, /is very similar 

to the fact situation found here. The will of the decedent in 

that case provided in part: 

'I Second, I give, devise and bequeath to my beloved 

wife, Nettie Ihudsen Miller, all of my property, 

whether the same be real or personal or mixed, and 

I do this acknowledging all my children hereinafter 

named, and for the reason that I know that my beloved 

wife will, care for my children from the remainder of 

my estate, if there be any, share alike * * 9;. " 

The Utah court held that there was no constructive trust created 

by the quoted language, as alleged by the children of the deceased. 

The court then stated: 

1 l Further persuading us to the conclusion we have 

reached is the fact that it is extremely doubtful 

that the language of the will would justify a conclusion that a trust was intended. Rather the language 

seems to indicate clearly an intention by the testator 

to leave to his wife all of his property to be used in 

accordance with her judgment. He advisedly acknowledged 

his children and stated the reason for giving the 

property to his wife, apparently reposing sufficient confidence in her that she would use it properly as indicated 

by the language, 'I know that my beloved wife will care 

for my children from the remainder of my estate, if 

there be any, share and share alike.' Where there is a 

clear and unequivocal devise, the statement of the reasons for doing so does not limit or restrict the testamentary gift . " (Emphasis supplied. ) 

The fact situation in Miller is very similar to the facts 

we have before us. Herman DeVries gave all the property owned by 

him to his wife, Amanda, to have and to hold as her sole and 
the 

separate property. The reason for doing so, i.e. ffwith/knowledge 

that she will be fair and equitable to all of my children" does 

not limit or restrict the testamentary gift. 

Depositions were taken of all of plaintiffs and a deposition was taken of Herman ~e~ries' brother, Martin DeVries, who 

was 76 at the time of the taking of the deposition. None of the 

children had ever talked to their father before his death or to 

Amanda, as to the testamentary distribution of their property. 

None of them knew anything of an agreement between Herman and Amanda 

concerning the distribution of ~erman's property. Martin DeVries 

stated in his deposition that he discussed ~erman's will with 

Herman on one of art in's visits to Montana from his home in 

California. Martin recalled this conversation in his testimony: 

"The only thing that I advised Herman was when we 

sat on the porch and I says, have you made a will, 

because you know the importance of having a will. 

He says yes, and I says, have you taken care of all 

of your kids, both families, because you have two 

families, and he says, I have taken care of everything. That is the substance of this conversation and 

the only conversation that I recall I ever had with 

Herman * * *,but never anything with reference to 

that, [advising Herman as an attorney] that I can 

recall about the will. If 

There is no evidence in the record to support the contention 

that Herman DeVries intended to create a trust in favor of plaintiffs. The language of the will is not sufficient. Therefore, 

this Court finds no trust created in their favor. 

Plaintiffs next contend there was an agreement between 

Amanda and Herman that Amanda would leave her estate in equal 

shares to all of the children of Herman DeVries. Plaintiffs 

reason: that when Herman used the phrase, "with the knowledge1' 

that he had to obtain this knowledge from his wife; that when 

Amanda, as executrix of ~ e r m a n ' s e s t a t e , signed the final account 

and petition for distribution of ~ e r m a n ' s e s t a t e which stated 

I I that in pursuance of and according to the terms and provisions 

of the Last Will and Testament of Herman DeVriesfl that she knew 

part of the terms was that the property would go to her with the 

knowledge that she would be fair and equitable to all of his 

children, and that she had some knowledge of an agreement which 
this Court can imply was a promise to equally distribute the 

property upon her death. 

This Court does not agree with this position of plaintiffs. 

Nowhere can we find any such knowledge or implication, either from 

the depositions or from the will itself. Amanda's signing of the 

final account and petition for distribution merely acknowledged 

that she was doing so under the authority of and in conformity with 

the last will and testament of Herman DeVries, and no other implica 

tion nor knowledge can be alleged to exist because of the signing. 

Having found no trust for the benefit of plaintiffs, and 

having found no agreement or contract to have existed between 

Amanda and Henry DeVries as to the equal distribution of Amanda's 

estate, we do not find it necessary to discuss the last question 

for review concerning laches mr the statute of limitations. 

The judgment of the district court is reversed and 

remanded with the instruction that a new judgment be entered in 

We Concur: 

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Chief Justice 

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Justices.