                               No. 88-004

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1988


IN RE THE MATTER OF THE ESTATE OF
MERLYNN E. GREENFIELD, a/k/a
MERLYNN E. KRAFT GREENFIELD,
                Deceased.




APPEAL FROM:    District Court of the First Judicial District
                In and for the County of Lewis and Clark
                The Honorable Gordon R. Bennett, Judge presiding.

COUNSEL OF RECORD:

         For Appellant:
                Mark P. Yeshe; Harrison, Yeshe and Murphy, Helena, MT
         For Respondent:
                Richard L. Parish; Harlen, Thompson and parish, P.C.,
                Helena, MT




                                   Submitted on Briefs:   March 31, 1988
                                    Decided:   June 16, 1988

Filed:   '9uN 1 6 1 9 8 ~



                                   Clerk
Mr. Justice John C.   Sheehy delivered the Opinion of the
Court.


     William L. Greenfield, Janet Tenesch and Nancy Schmidt,
as appellants, appeal from an order of the District Court,
First Judicial District, Lewis and Clark County, granting
summary judgment in favor of Thomas Marx, personal
representative of the estate of Merilyn Greenfield, as
respondent. We affirm.
     The following issues are presented for our review:
     1. Did the District Court err granting summary
judgment?
     A. Did the District Court err in determining that the
Greenfield partnership referred to in a holographic instru-
ment was without property at the time of the decedent's death
and as such was unable to successfully devise partnership
property; and,
     B. Did the District Court err in excluding extrinsic
evidence which the appellant alleged was necessary in order
to identify the property described in the devise and effectu-
ate the desires of Merlynn Greenfield.
     The record discloses the following pertinent facts.
Merlynn Greenfield died on October 11, 1984.        Following
Merlynn Greenfield's death two documents were submitted to
the District Court for probate. The first document is a will
duly executed on April 4, 1975 appointing her brother, Thomas
Marx (respondent) as personal representative of her estate.
The second document admitted to probate is a four page
holographic document entitled Merlynn E. Greenfield's Last
Will and Testament dated November 1, 1983. The holographic
instrument contained no testamentary declarations outside of
the title and was comprised almost exclusively of a list of
personal property and her desired disposition of such proper-
ty. There is no language in the document to indicate that it
was intended to act as a codicil, amendment or revocation of
Merlynn's 1975 will.    Neither the 1975 will nor the 1983
holograph provide for the disposition of the residuary
estate.
     The controversy which is the basis of this appeal con-
cerns one item on the 1983 instrument that appears to be an
exception to the general disposition of miscellaneous items.
It appears on page 3 and reads as follows:
     If anything is left of Greenfield Partnership to be
     split between William L. Greenfield, Janet Tenesch,
     and Nancy Schmidt [appellants].
     In order to understand the controversy surrounding this
seemingly innocuous devise, it is necessary to delve into
some background concerning the "Greenfield Partnership."
     William C. Greenfield and Merlynn Greenfield were hus-
band and wife.   William C. Greenfield, together with Henry
Greenfield (William's Brother) and Ann Jancic (William's
sister) owned property in Lewis and Clark County as well as
in Sanders County as tenants in common. William Greenfield
owned 41 213% of the property while his brother and sister
each owned 29 116% of the property.      On August 10, 1983,
William C., Henry and Ann executed a partition agreement.
The partition stated that the involved parties wanted the
property partitioned in accordance with each parties' respec-
tive interests, and in the event any of the property was
sold, the net proceeds from the sale were to be distributed
in accordance with each parties' respective interest regard-
less of which one of the parties was the owner of record.
William C., Henry and Ann filed partnership income tax forms.
     William C. Greenfield died August 23, 1983 approximately
two weeks after executing the partition agreement. William
C's estate was willed in equal portions to his wife, Merlynn
 (who was made executrix) and his three children, William L.
Greenfield, Janet Tenesch and Nancy Schmidt, the appellants.
Merlynn was named personal representative of the estate and
Ada Harlen, William C's attorney was named as successor
personal representative.
      During the course of probate of William C's estate, some
of the properties were sold, the proceeds being distributed
to William C ' s estate (41 2/3%), Ann Jancic (29 1/6%) and
Henry Greenfield (29 1/6%) as determined by their respective
interest.     In order to facilitate the distribution of
proceeds, Merlynn, Ann and Henry opened a bank account in the
name of the "Greenfield Partnership" so that as payments came
in, expenses could be paid, and the funds could then be
distributed to the parties, according to their interests as
tenants in common.
      William C's estate was divided in four equal parts
between Merlynn and William C's three children.       Each re-
ceived approximately a 10% interest in the property that was
the subject of the August 10, 1983 partition agreement. The
41 2/3% tenancy in common in William C's interest in the real
property that had not been sold was assigned to Merlynn,
William, Janet and Nancy as tenants in common in equal
shares. William C's interest in property that had been sold
was assigned in like fashion (with the exception that
Merlynn's share accrued to her estate as she had died prior
to execution of the assignment.)
      Following Merlynn's death and the admittance for probate
of her 1983 holographic will a dispute arose between the
appellants and the respondent over the devise concerning the
Greenfield partnership. The respondent sought summary judg-
ment as to the disputed devise, and the District Court grant-
ed the respondent's motion holding that the appellants were
not entitled to take anything under the disputed devise in
the 1983 holographic instrument.      The appellants appeal.
     Appellants contend that the District Court erred in
granting respondent's motion for summary judgment as genuine
issues of material fact exist. We disagree.
     The standard of review for an appellate court in review-
ing an order for summary judgment is the same as that used by
the District Court under Rule 56, M.R.Civ.P.   Mayer Bros. v.
Daniel Richard Jewelers, Inc. (Mont. 19861, 726 P.2d 815,
816, 43 St.Rep. 1821, 1822; Kronen v. Richter (Mont. 1984),
683 P.2d 1315, 1317, 41 St.Rep. 1312, 1314.
     Rule 56 (c), M.R.Civ.P.,   provides in pertinent part:
     The judgment sought shall be rendered forthwith if
     the pleadings, depositions, answers to interrogato-
     ries, and admissions on file, together with the
     affidavits, if any, show that there is no genuine
     issue as to any material fact and that the moving
     party is entitled to a judgment as a matter of law.
     The disputed holographic devise at the center of the
controversy provides that "if anything is left of Greenfield
partnership," it is to be divided among the appellants.
Appellants contend there is a genuine issue of material fact
regarding Merlynn Greenfield's intent when composing this
devise and as such, summary judgment was an inappropriate
device with which to resolve the question.       We find the
contrary to be true.
     Appellants maintain that a question of intent arises
when a document is not clear on its face.        However, the
disputed provision is clear and unambiguous.
     Montana's rules regarding construction of wills are well
settled. Section 72-11-302, MCA, provides:
     The words of a will are to be taken in their ordi-
     nary grammatical sense, unless a clear intention to
     use them in another sense can be collected and that
     other can be ascertained.
     Section 72-11-303, MCA, provides:
     The words of a will are to receive an interpreta-
     tion which will give to every expression some
     effect, rather than one which will render any of
     the expressions inoperative.      (Emphasis added. )
     Section 72-11-309, MCA, provides:
     Technical words in a will are to be taken in their
     technical sense unless the context clearly indi-
     cates - contrary intention.
            a                          (Emphasis added. )
     Applying the above delineated rules of construction to
the disputed devise there can be no question as to what
Merlynn Greenfield intended with her devise.     The language
utilized by Merlynn Greenfield in composing the devise shows
that she was cognizant of the possibility that there would be
nothing left of the partnership and that she intended the
devise to be effective only if the partnership had property
at the time of her death.
     Merlynn Greenfield's devise bequeathed the property, if
any, left in the Greenfield partnership to William L.
Greenfield, Janet Tenesch and Nancy Schmidt. Thus, as the
District Court correctly noted the dispositive question is,
did the Greenfield partnership own any property at the time
of Merlynn's death October 11, 1984.
     The Greenfield partnership was merely a conduit through
which the partners conducted their tenancy in common business
and reported income for tax purposes. An examination of the
evidence presented leads us to the unequivocal conclusion
that the "Greenfield Partnership" owned no interest in real
property at the time of her death.            The Greenfield
partnership had no land assigned, leased, deeded or sold to
it. In fact, there is no evidence that the partnership owned
or held title to any land, rather title was held by
individual partners as fee holders or tenants in common.
Further there is nothing in the record to suggest that any of
the partners abandoned or transferred any of their real
property interests to the partnership. As such, the District
Court correctly determined that no partnership property
should pass under the disputed devise in the holographic
will.
      Appellants next contend that the District Court erred in
failing to consider extrinsic evidence. Appellants maintain
that resort to extrinsic evidence is necessary as the term
"Greenfield Partnership" is not sufficient to identify the
property Merlynn Greenfield intended to bequeath.          The
extrinsic evidence would apparently show that Merlynn wanted
her share of William C. Greenfield's estate to go to the
appellants instead of to heirs named in her Will.
      The word "partnership" must be given its technical
interpretation as the context of the holograph does not
clearly indicate a contrary intention.      Section 72-11-309,
MCA.    Further, the qualifying phrase "if anything is left"
must be given effect when construing the devise. To ignore
the contingent language would violate the rules pertaining to
construction of wills. In Re Estate of Erdahl (Mont. 1981),
630 P.2d 230, 38 St.Rep. 978. See also, $3 72-11-303, MCA.
      It is our opinion that the devise is clear as to what
property Merlynn intended to devise to the children of
William L. Greenfield--namely, that property, if any, owned
by the "Greenfield Partnership" at the time of her demise.
Merlynn's intention can be ascertained from the language of
the devise alone.    It was not necessary, nor would it have
been proper, for the District Court to receive extrinsic
evidence in order to determine what property Merlynn intended
to devise. The plain meaning of the language employed speaks
for itself.
     We hold the District Court properly granted the respon-
dent's motion for summary judgment. We affirm.
We Concur:          ---I




         Justices
Mr. Justice R. C. McDonough dissents.

      There are at least three material questions of fact: 1)
whether William C. Greenfield, Henry L. Greenfield and Ann
Jancic were partners in dealing with the real estate and the
proceeds therefrom; 2) whether Merlynn E. Greenfield, her
stepchildren, Ann Jancic and Henry L. Greenfield, intended to
and did form a partnership to handle the real estate and the
personal property proceeds therefrom; 3) what specific prop-
erty was intended to be in either partnership. The majority
errs because resolution of these factual questions must
precede the determination that no partnership property
existed.
      The parties' intentions as to allegedly forming a part-
nership should be ascertained as a question of fact.       59A
Am. Jur. 2d Partnership § 78 (1987) .   The intentions of the
parties to form a partnership may be implied. It need not be
expressed in writing or orally if it can be derived from the
parties' actions. 59A Am.Jur. 2d partnership § 152 (1987).
Once it is found that a partnership was formed, the intent of
the partners generally determines what property will be
considered partnership property as distinguished from sepa-
rate property, and this is also a question of fact.       59A
Am.Jur. 2d Partnership § 354 (1987).
      The partition agreement mentioned in the majority opin-
ion executed within 2 weeks of William C. Greenfield's death
does not appear to have been carried out. The inventory and
appraisement filed in William C.'s probate listed the proper-
ty at issue as a percentage interest (41+%) belonging to
William C. In addition, the agreement is confusing and ambig-
uous. Furthermore, other evidence in the record infers the
existence of the partnership and partnerhip property at the
time of Merlynn's death.
     Prior to William C.'s death the proceeds from the sales
of real estate all went into one account, expenses were paid
out of the account, and the profits were distributed from the
account as to the percentage of ownership.        The partition
agreement continued to provide the same division of the
profits. Prior to William C.'s death the siblings signed and
filed income tax returns as a partnership and the affidavit
of Ann Jancic states they considered themselves to be
partners.
     After William C.'s death, the testator here who was also
the personal representative of William C.'s estate, closed
out the old account and opened a new account in the name of
the "Greenfield Partnership". Additional lands were sold by
Ann, Henry L . , Merlynn and the stepchildren during the course
of the probate of William C.'s estate and some of the lands
were sold on a contract for deed. Again, the proceeds went
into the partnership account, expenses were paid out of the
account, and amounts were from time to time distributed. The
existence of these transactions by the testator, and by Ann
Jancic, Henry L. Greenfield and the testator's three step-
children, and the way these transactions were handled by
their attorney and accountant, imply there was a partnerhip.
     Other transactions also support the existence of a
partnership. Partnership returns were filed after the death
of William C. for the years 1984 and 1985 and the testator,
who died in 1985, is listed on the returns for 1984 as a
partner. A sales agreement for some of the land sold after
the death of William C., which the testator signed, listed
the Greenfield Partnership as seller. The testator's notes
to her stepchildren mentioned the "Greenfield Partnership".
A testator's letter of July 1984, mentions the "partnership".
     There is a question of fact as to the intent of the
parties. Facts showing that the parties called it a partner-
ship, filed tax returns as a partnership, payed bills as a
separate entity, referred to the partnership in writing, all
raise questions as to a partnership's existence and its
holdings.   These questions should be answered by a jury or
other trier of fact.
     There is also a question of what particular property is
treated as partnership property.     Assuming that the real
estate partition agreement is construed as provided in the
majority opinion, the inventory and appraisement of the
testator's estate lists considerable property as personal
property which is anticipated proceeds from the sale of the
real estate under contracts for deeds.     There is money in
escrow accounts, originally derived from these contracts for
deeds. There was also money in a partnership bank account at
the time of the testator's death.
     Finally, there remains the question of the testator's
intent in the holographic writing. Here again it is a ques-
tion of fact.    The clause is ambiguous, written by a lay
person.   If there is not a partnership, did she intend to
bequest and/or devise what she and others called the
"Greenfield Partnership". The testator at the time of her
death was 45 years of age. Her death certificate shows that
the death resulted as of a sudden illness.      It cannot be
assumed that she felt that the "Greenfield Partnership'' only
applied to what has been determined to be a partnership
between her husband and his sister and brother.      I think
there is a very material question of fact as to what she
meant by the words "Greenfield Partnership" and what property
was included.
     I would reverse the summary judgment and remand to the
District Court.




     Mr.   Justice   Fred   J.   Weber   concurs   in   the   foregoing
dissent.
