                                       No.    13447

           I N THE SUPREME COURT OF THE STATE OF MONTANA

                                          1977



STATE O MONTANA, A C T I N G BY AND THROUGH
       F
THE STATE FISH AND GAME COJpMISSION,

                                       P l a i n t i f f and A p p e l l a n t ,



PAUL T . KELLER, E x e c u t o r of t h e E s t a t e o f
Kay Kuhns, Deceased e t a l . ,

                                       Defendants and Respondents.



Appeal from:         D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t ,
                     H o n o r a b l e P e t e r G . Meloy, J u d g e p r e s i d i n g .

Counsel o f Record:

     For Appellant:

           C l a y t o n R.   H e r r o n a r g u e d , H e l e n a , Montana

     For Respondents :

           K e l l e r , R e y n o l d s a n d Drake, H e l e n a , Montana
           P a u l T. K e l l e r a r g u e d , H e l e n a , Montana
           T i p p and Hoven, M i s s o u l a , Montana
           Vernon Hoven a r g u e d , M i s s o u l a , Montana



                                                 Submitted:           May 2 5 , 1 9 7 7

                                                    ~ e c i d e:
                                                               d      AU G 2 2 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 there was
no ambiguity in the the will and defendants were entitled to
distribution of certain real property.
         Plaintiff is the state of Montana Fish and Game Commission.
In his will executed October 22, 1971, Ray Kuhns devised to the
State Fish and Game Commission certain real property which con-
stituted 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 Thirty-
         three (33), Township Thirty (30) North, Range Twenty-
         two (22) West in Flathead County, Montana, with the
         exceptions of three and one-half (3-1/2) acres here-
         tofore surveyed surrounding the ranch buildings, the
         same is being given to the State of 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 in
Sections 29 and 33 devised to the State Fish and Game Commission
by paragraph SECOND of decedent's will.
        After the filing of decedent's will for probate, the
district court entered a "DECREE OF PARTIAL DISTRIBUTION" dis-
tributing to plaintiff lands in Sections 20, 21, 28, 29 and 33 as
provided for in decedent'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 issues presented 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 "Section Thirty (30)" in decedent's will
rather than "Section Thirty-two (32)". Defendants answered the
will was not ambiguous and, therefore, was not subject to inter-
pretation.
        The district court found the will was clear and that the
description in controversy was a "completely, total, adequate
and legal description of existing private real property."     It
concluded the will was unambiguous and plaintiff was not entitled
to distribution under decedent's will of any property in Section
32, Township 30 North, 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, adequate and legal descrip-
tion of existing private property?
        2.   Do the district court's findings support its con-
clusions 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 into whether a
party may show by 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 issue has not previous-
ly been before this Court.
        In construing a will the paramount rule is that the in-
testator's intent gathered from the words of the will governs the
interpretation of the will.   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, 128 Mont. 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
on Wills, 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 declarations of 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 "all
of my 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 be-
cause the description is unambiguous, extrinsic evidence is in-
admissible to show what the decedent meant by it.
           Section 91-224, requires that if extrinsic evidence shows
there is either an imperfect description or that no property
exactly answers the description, the mistake must be corrected.
Was there, then, an imperfect description 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 Twenty-
Two (22) West, in Flathead County, Montana."       The district court
also found it was 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, 88 N.E. 146, 147 (1909); Collins      v. Capps, 235
Ill. 560, 85 N.E. 934, 935 (1908); 4 Bowe-Parker:       Page on Wills,
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 "imperfect description" within the meaning 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 no
 interest in "Section Thirty (30), Township Thirty (30) North,
 Range Twenty-two (22) West, in Flathead County, Montana"; it
 is an imperfect description.
           Section 91-224 requires that when there is an imperfect
 description, the mistake or omission must be corrected.      The
 question remains how to correct the mistake or omission.     The
 court will 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, 166 N.W. 816,
 818 (1918).    The court must 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 can pass,* * *"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 false words are struck from testator's descrip-
 tion, we have left "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),           I



 and Thirty-three (33)   * * *."   No language remains in the devise
 to demonstrate with 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 is not an instance
 of a general description of property sought to be devised followed
 by a specific description of that property which is uncertain.
 Stuesse v. Stuesse, (Mo. 1964) 377 S.W.2d 389.    To allow plaintiff
 to show by extrinsic evidence that the testator allegedly intended
 to devise to plaintiff his lands in Section 32 without any indication
of such an intent expressed in the will would be to rewrite the
testator's will.    This we cannot and will not do.   Before such
extrinsic evidence is admissible, plaintiff must show from the
face of the will that that was the testator's intent.     Thus,
the devise of "Section Thirty (30)" passes nothing to the
plaintiff.
          Given our conclusion as to the first two issues raised
by plaintiff, we find it unnecessary to discuss the evidentiary
issues.
          Judgment affirmed.




                                                Justice




We concur:
