No. 12849 INTHE SUPREME COURT OF THE STATE OF MONTANA 1975

LOUISE STAPLETON, etal., Plaintiffs and Respondents,
-vsBEVERLY A. DE VRIES, et a

### 1.

# , Defendants and Appellants.

Appeal from: District Court of the ThirteenthJudicial 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 

### 2T

### 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 plaintiffsLouise 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 firstmarriage were born the plaintiffs. As issue of the marriage between Herman and A.mandawere born the defendants. Herman died June 14, 1951. In hiswill, he stated:
ItI give, devise and bequeath tomy beloved wife, Amanda DeVries, allthe balance, residue and remainder of my property of whatever nature, kind or character which I may own atthe time of my death tohave and tohold as her sole and separate property. I do this with the knowledge that shewillbe fairand equitable to allof my children, the issue of myself and my former wife aswell

### as the issue of herself and myself. II On July 15, 1953, in its decree, the district court distributed ~erman's estate tohiswidow Amanda "as her sole and separate property, in accordance with the Last Willand Testament

Amanda died on November 

### 8, 1971, leaving a willwhich was admitted to probate. It left allher property toher children, making no mention of plaintiffs. They contested Amanda's will. Their petition to contest thewillwas dismissed on the ground that

II they were not interested persons" under the statute. Plaintiffs then filed a complaint alleging, in the alternative, that Herman created a trust for theirbenefit, orAmanda had contracted to leave a portion of her property to them. On thebasis 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 thewillof Herman DeVries, deceased? 

### 2. Was there 

### a contract, promise of agreement, whereby Amanda DeVries agreed.to

### willa portion of her property to plaintiffs? 

### 3. If therewas either such trust or contract, are the claims of plaintiffs barred by statutes of limitation or laches? Defendants argue therewas no constructive trust created by Herman De~ries' willin 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 tobe 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 inHerman De~ries' 

### willreads:

I II give, devise and bequeath tomy beloved wife, Amanda DeVries, allthebalance, residue and remainder of my property

# *

# ** with the knowledge that she

### willbe fair and equitable to allof my children, the issue of myself and my former wife, aswell as the issue of herself and myself." This Court construing the second article finds that therewas no trust created for the benefit of the plaintiffs. The willis clear on its face. It gives toAmanda DeVries, outright allof the property owned by Herman DeVries atthe time of his death. The remaining language "with the knowledge that she willbe fair and equitable to allof my children, the issue of myself and my former wife, aswell as the issue of herself and myself." is merely precatory language, and does not create a trust for the benefitof plaintiffs.Both defendants and plaintiffs citenumerous cases to support their arguments. We find these cases of littlevalue. 

### 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 littlevalue 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, afterall, 

### is a matter of impression as to the maker's intention made upon the mind of a court considering thewillitself with the circumstances surrounding 

### its execution. Each case must of necessity, therefore, depend more or lessupon 

### its own peculiar facts.

## '1 A Utah decision cited by defendants, Millerv. Walker 676, Bank & Trust Company, 17 Utah 2d 

### 88, 

### 404 P.2d 675,

### /is very similar to the fact situation found here. The 

### willof the decedent in that case provided in part:

'ISecond, 

### I give, devise and bequeath tomy beloved wife, Nettie Ihudsen Miller, allof my property, whether the same be real or personal ormixed, and I do this acknowledging allmy children hereinafter named, and for the reason that I know that my beloved wife 

### will, care formy children from the remainder of my estate, if there be any, share alike

# ** 9;. " The Utah court held that therewas no constructive trust created by the quoted language, as alleged by the children of the deceased. The court then stated:

1lFurther persuading us to the conclusion we have reached is the fact that it isextremely doubtful that the language of the willwould justify a conclusion that a trust was intended. Rather the language seems to indicate clearly an intentionby the testator to leave tohis wife allof his property tobe used in accordance with her judgment. He advisedly acknowledged his children and stated the reason for giving the property to hiswife, apparently reposing sufficient confidence in her that shewould use it properly as indicated

by the language, 'I know that my beloved wife willcare formy children from the remainder of my estate, if therebe any, share and share alike.' Where there is a clear and unequivocal devise, the statement of the reasons for doing so does not limitor restrict the testamentary gift

# ." (Emphasis supplied.) The fact situation inMiller 

### is very similar to the facts

we have before us. Herman DeVries gave allthe property owned by him tohiswife, Amanda, tohave and tohold asher sole andthe separate property. The reason for doing so, i.e. ffwith/knowledge that she willbe fairand equitable to allof my children" does not limit or restrict the testamentary gift. Depositions were taken of allof plaintiffs and a deposition was taken of Herman ~e~ries' brother, Martin DeVries, who
was 

### 76 atthe time of the taking of the deposition. None of the children had ever talked to their fatherbefore his death or to Amanda, as tothe 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 inhis deposition that he discussed ~erman's willwith Herman on one of 

### art in's visits toMontana from his home in California. Martin recalled this conversation inhis 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 anythingwith reference to that, [advising Herman as an attorney] that I can recall about the will.If There isno evidence in the record to support the contention that Herman DeVries intended to create a trust in favor of plaintiffs. The language of the

### willisnot sufficient. Therefore, this Court finds no trust created in their favor. Plaintiffs next contend therewas an agreement between Amanda and Herman that Amanda would leave her estate in equal shares to allof 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; thatwhen 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 ewhich stated

IIthat 

### in pursuance of and according to the terms and provisions of the Last Willand Testament of Herman DeVriesflthat she knew part of the terms was that the property would go toher with the knowledge that shewould be fair and equitable toallof his children, and that she had some knowledge of an agreement whichthis 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 willitself. 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 lastwilland 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 thebenefit of plaintiffs, and having found no agreement or contract tohave existed between Amanda and Henry DeVries as to the equal distribution of Amanda's estate, we do not find itnecessary to discuss the last question forreview concerning lachesmr the statute of limitations. The judgment of the district court 

### isreversed and remanded with the instruction that a new judgment be entered in

We Concur:

----------------I-------------- Chief Justice

------------------------------= Justices.