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                                                               No. 99-363

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                              2000 MT 113

                                                             229 Mont. 421

                                                               2 P. 3d 238


                                     IN RE THE ESTATE OF LUCILE B. SNYDER,
                                                    Deceased.

                                                          LOIS K. SNYDER,

                                                                Appellant,

                                                                      v.

                                     NEIL E. SNYDER, Individually and as Personal

                                     Representative of the Estate of Lucile B. Snyder,

                                                               Respondent.



                           APPEAL FROM: District Court of the Eighth Judicial District,

                                                In and for the County of Cascade,

                                     The Honorable Marge Johnson, Judge presiding.

                                                     COUNSEL OF RECORD:

                                                             For Appellant:

                        Warren C. Wenz and Anna F. Creed, Marra, Wenz & Johnson, P.C.,


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                                                          Great Falls, Montana

                                                             For Respondent:

                          Donald J. Hamilton, Jardine, Stephenson, Blewett & Weaver, P.C.,

                                                          Great Falls, Montana



                                             Submitted on Briefs: January 13, 2000

                                                         Decided: May 4, 2000

                                                                    Filed:

                                    __________________________________________

                                                                     Clerk

Justice Terry N. Trieweiler delivered the opinion of the Court.

¶1 Neil E. Snyder, heir and the personal representative of Lucile B. Snyder's estate, filed a
proposed distribution of Lucile's estate in the District Court for the Eighth Judicial District
in Cascade County. Lois K. Snyder, an heir to the estate, objected to the proposed
distribution. Neil, in his capacity as personal representative, petitioned the District Court
for an interpretation of Lucile's will. The District Court entered an order interpreting the
will from which Lois appeals. We reverse the order of the District Court and remand for
further proceedings consistent with this opinion.

¶2 The following issue is presented for review:

¶3 Did the District Court err when it concluded that Lucile intended to devise 51 percent
of her interest in Snyder's, Inc. to her son, Neil, and the remaining 49 percent of her
interest to her daughter, Lois?

                                                FACTUAL BACKGROUND

¶4 Lucile B. Snyder died November 18, 1992. Lucile's children, Neil and Lois and her

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grandchild, Lisa Renee Snyder, survived her.

¶5 Lucile's will, which she signed February 24, 1987, provides, in relevant part:

        I devise all the rest, residue and remainder of my property, whether real, personal or
        mixed, of whatsoever nature and wheresoever situated, of which I die seized or
        possessed, or in which I may have any interest at the time of my death, to my two
        children, LOIS K. SNYDER and NEIL E. SNYDER, in equal shares, share and
        share alike.

        Provided further, however, that should the business of Snyder Drug, 2500 6th
        Avenue North, in Great Falls, Montana, be not fully incorporated and stock
        certificates issued by Snyder's Inc., at the time of my death; then, in the division of
        my estate, the business of Snyder Drug and all property, real and personal connected
        therewith, shall be first set aside and go to make up the share of my estate which
        shall go to my son, NEIL E. SNYDER. If the valuation of said Store and assets
        connected therewith for Federal Estate tax purposes shall exceed the one-half (½)
        share to go to my son NEIL; then to the extent of such excess, the business of
        SNYDER DRUG and all property, real and personal connected therewith, shall
        nevertheless go and be distributed to my son NEIL, and be subject to a charge in
        favor of my daughter, LOIS K. SNYDER, which shall require my son, NEIL E.
        SNYDER, to pay LOIS K. SNYDER, the amount necessary to give her a full one
        half (½) of my total estate based upon the value thereof as finally determined for
        Federal Estate tax purposes. Unless otherwise mutually agreed upon by my children
        in writing, said NEIL E. SNYDER shall give to LOIS K. SNYDER a note, secured
        by a real and chattel mortgage on said Snyder Drug business, representing the
        amount owing to her which note shall be payable in equal semi-annual installments
        for a period not exceeding Ten (10) years and the unpaid balances of which shall
        bear interest at the rate of Five percent (5%) per annum.

        If said business of Snyder Drug shall be owned by Snyder's, Inc., a Montana
        Corporation, at the time of my death; then and in that event, Fifty-one percent (51%)
        of my stock in said corporation, plus whatever amount thereof as is necessary to
        make a full share of such stock, shall be first apportioned and set aside to make up
        the share of my total estate which shall go to my son, NEIL E. SNYDER.

        I make this provision because for many years last past my son, NEIL, has devoted

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        his full time and unusual sacrifice to the development of said business and therefore
        it is my will and desire that he have said business, or control of the corporate
        business as the case may be, but without ultimately diminishing the equal
        distribution of my estate to my two children, whom I hold in equal regard.

(Emphasis added.)

¶6 On November 25, 1992, the District Court admitted Lucile's will to probate, and Neil
was appointed the personal representative. Neil filed a notice of proposed distribution in
kind. On July 16, 1996, following a disagreement over the proposed distribution in kind,
Neil, in his capacity as personal representative, petitioned the District Court for an
interpretation of Lucile's will. Lois responded by filing an objection to the proposed
distribution in kind, a petition for partition, and an objection to the petition for
interpretation of Lucile's will.

¶7 On January 26, 1998, the District Court entered its order. The District Court found that
Lucile's estate consisted, in part, of 189 shares of Snyder's, Inc., which owns and operates
Snyder Drug, a small Montana business. The 189 shares represented the controlling
interest in the business, which had been run by the Snyder family for many years. The
District Court also found that, although Lucile owned the controlling interest, Neil had
spent his career working in the business, and that Lois had never worked in the business
and lived in Salt Lake City, Utah. The District Court concluded that:

        The residuary estate should be divided equally, share and share alike, with the
        specific provision that Neil receive 51% of the decedent's stock in Snyder's, Inc. . . .
        and that Lois receive the balance of decedent's stock. The personal representative
        must distribute the business shares in accordance with that specific intent as stated
        in the will. Once that specific devise is accomplished, the remainder of the residuary
        estate must be distributed in such a way that the two children receive equal shares,
        including the value of those business shares of stock. This provision which
        contemplates Neil receiving 51% of the shares of the corporation is a specific devise
        and must take precedent over a general devise which contemplates dividing the
        estate equally between Neil and Lois. This requires that Lois receive the amount of
        cash necessary to equalize the difference between the 51% and the 49% distributed
        business shares.

        Lois appeals from the order of the District Court.


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                                                  STANDARD OF REVIEW

¶8 The judicial interpretation and construction of a will is a question of law. In the Matter
of the Estate of Bolinger (1997), 284 Mont. 114, 118, 943 P.2d 981, 983. We review a
district court's conclusions of law to determine whether its conclusion is correct. Estate of
Bolinger, 284 Mont. at 118, 943 P.2d at 983.

                                                             DISCUSSION

¶9 Did the District Court err when it concluded that Lucile intended to devise 51 percent
of her interest in Snyder's, Inc. to her son, Neil, and the remaining 49 percent of her
interest to her daughter, Lois?

¶10 The testator intent controls the distribution of assets pursuant to a will. In the Matter
of the Estate of Evans (1985), 217 Mont. 89, 94, 704 P.2d 35, 38. In construing a will,
substance rather than form is regarded. 80 Am. Jur. 2d, Wills § 1127 at 237. Our rules of
construction with respect to testamentary instruments are well settled:

        The words of the instrument are to receive an interpretation which will give some
        effect to every expression, rather than an interpretation which will render any of the
        expressions inoperative. The will is to be construed according to the intentions of
        the testator, so far as is possible to ascertain them. Words used in the instrument are
        to be taken in their ordinary and grammatical sense unless a clear intention to use
        them in another sense can be ascertained. In cases of uncertainty arising upon the
        face of the will, the testator's intention is to be ascertained from the words of the
        instrument, taking into view the circumstances under which it was made, exclusive
        of his oral declarations.

        ....

        "The object, therefore, of a judicial interpretation of a will is to ascertain the
        intention of the testator, according to the meaning of the words he has used, deduced
        from a consideration of the whole instrument and a comparison of its various parts
        in the light of the situation and circumstances which surrounded the testator when
        the instrument was framed."

Estate of Bolinger, 284 Mont. at 121, 943 P.2d at 985 (quoting Blacker v. Thatcher (9th Cir. 1944),
145 F.2d 255, 259). The testator's intent is gleaned not from a single word or phrase but from a

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sympathetic reading of the will in its entirety. Will of Eckert (1977), 91 Misc. 2d 276, 277, 398 N.Y.S.2d
97, 98. Intent is derived "from all parts of the will . . . construed in relation to each other . . . to form one
consistent whole." Estate of Evans, 217 Mont. at 94, 704 P.2d at 38 (quoting In the Matter of the Estate
of Erdahl (1981), 193 Mont. 103, 105-06, 630 P.2d 230, 231).

¶11 Lois contends that Lucile intended to divide her estate equally. She argues that the
District Court erred when it interpreted Lucile's will to give her a minority interest in
Snyder's, Inc. Lois asserts that Lucile intended to give Neil the business and her a share of
the estate equal in value to that devise. Lois contends that to give her 49 percent of
Lucile's interest in Snyder's, Inc. is inequitable and contrary to Lucile's intent because she
lives in Utah; she does not receive a salary from Snyder's, Inc.; Snyder's, Inc. allegedly
does not pay dividends; and there is no market for Snyder's, Inc.'s stock.

¶12 Neil responds that because the language of Lucile's will clearly gives him 51 percent
of Lucile's interest in Snyder's, Inc., it, by necessary inference, gives Lois the remaining
shares. He argues that Lucile's devise of 51 percent of Snyder's, Inc. is a specific devise
and thus more accurately articulates Lucile's intent.

¶13 Both parties rely on § 72-3-902, MCA, which provides, in relevant part:

        Unless a contrary intention is indicated by the will, the distributable assets of a
        decedent's estate shall be distributed in kind to the extent possible through
        application of the following provisions:

        (1) A specific devisee is entitled to distribution of the thing devised to him, and a
        spouse or child who has selected particular assets of an estate as provided in 72-2-
        413 shall receive the items selected.


        ....

        (4) The residuary estate shall be distributed in any equitable manner.

Neil relies on § 72-3-902(1), MCA, for his contention that Lucile's will specifically
devised him 51 percent of her interest in Snyder's Inc. Lois relies on § 72-3-902(4), MCA,
which requires equitable distribution.

¶14 Section 72-3-902, MCA, begins by stating, "[u]nless a contrary intention is indicated


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by the will." Therefore, before applying § 72-3-902, MCA, the court must discover the
testator's intent.

¶15 In this case, the will must be read as a whole to discover Lucile's intent. The seventh
paragraph provides, in relevant part:

        If said business of Snyder Drug shall be owned by Snyder's, Inc., a Montana
        Corporation, at the time of my death; then and in that event, Fifty-one percent (51%)
        of my stock in said corporation . . . shall be first apportioned and set aside to make
        up the share of my total estate which shall go to my son, NEIL E. SNYDER.

        I make this provision because for many years last past my son, NEIL, has devoted
        his full time and unusual sacrifice to the development of said business and therefore
        it is my will and desire that he have said business, or control of the corporate
        business as the case may be, but without ultimately diminishing the equal
        distribution of my estate to my two children, whom I hold in equal regard.

(Emphasis added.) Taking these words in their ordinary and grammatical sense, Lucile
intended to give Neil ownership or control of Snyder's, Inc. while dividing her estate
equally between Neil and Lois. The language that gives Neil 51 percent of Lucile's interest
must be read in conjunction with the language that gives Neil ownership or control of
Snyder's, Inc. without ultimately diminishing the equal distribution of Lucile's estate. To
infer from the requirement that Neil receive a controlling interest, a requirement that Lois
take the remaining 49 percent of the shares would defeat the intent expressed in the last
sentence of the seventh paragraph. "The words of the instrument are to receive an
interpretation which will give some effect to every expression, rather than an
interpretation which will render any of the expression inoperative." Estate of Bolinger,
284 Mont. at 121, 943 P.2d at 985. The purpose of giving Neil 51 percent of Lucile's
interest in Snyder's, Inc. was to insure that Neil remained in control of Snyder's Inc. after
Lucile's death, it was not to diminish the equal distribution of Lucile's estate.

¶16 When Lucile's will is read as a whole, the exact percentage of her interest in Snyder's,
Inc. that is distributed to Neil and Lois is less important than her desire to have Neil
control Snyder's, Inc. and her estate distributed equally between her children. Therefore,
we hold that the District Court erred when it concluded that Lucile intended to devise 51
percent of her interest in Snyder's, Inc. to her son, Neil, and the remaining 49 percent of
her interest to her daughter, Lois. This conclusion is supported by Lucile's expressed intent


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that if the Drug Store was not incorporated, Neil was to take the entire interest in the store
and Lois was to receive estate assets of comparable value.

¶17 We conclude the estate can only be distributed equally by doing the same with
Lucile's shares of Snyder's Inc.

¶18 We reverse and remand to the District Court for further proceedings consistent with
this opinion.


/S/ TERRY N. TRIEWEILER

We Concur:


/S/ J. A. TURNAGE

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER

/S/ W. WILLIAM LEAPHART




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