                                         No. 04-127

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                        2004 MT 200

TERI R. HANSON,

              Petitioner, Appellant and Respondent,

         v.

ESTATE OF E. GILMAN BJERKE,
DARREL TADE, Personal Representative,

              Respondent and Respondent,

         v.

SCOBEY ALUMNI FOUNDATION, INC.,
A Montana Nonprofit Charitable Corporation,

              Intervenor and Cross-Appellant.


APPEAL FROM:         District Court of the Fifteenth Judicial District,
                     In and For the County of Daniels, Cause No. DV 10-2002-14,
                     Honorable David J. Cybulski, Presiding Judge

COUNSEL OF RECORD:

              For Appellant:

                     Loren J. O’Toole, II, O’Toole & O’Toole, Plentywood, Montana

              For Respondent:

                     Laura R. Christoffersen, Knierim & Christoffersen, Culbertson, Montana

                     Ken W. Hoversland, Attorney at Law, Scobey, Montana

              For Cross-Appellant:

                     Daniel N. McLean, Crowley, Haughey, Hanson, Toole & Dietrich,
                     Helena, Montana


                                                  Submitted on Briefs: June 15, 2004
                                                             Decided: August 3, 2004

Filed:

                     __________________________________________
                                       Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1     Teri Hanson was one of the named beneficiaries in the last will and testament of E.

Gilman Bjerke. However, a year after Mr. Bjerke’s will was admitted to probate, certain real

property devised to Hanson had not yet been distributed to her. Meanwhile, the personal

representative had distributed over $150,000 to the named beneficiary of the residuary estate,

Scobey Alumni Foundation, Inc. (SAFI).         Hanson filed a declaratory action seeking an

interpretation and declaration of her rights pursuant to Mr. Bjerke’s will. Hanson claimed

that the eighth paragraph of the will gave her all personal property not designated on a list

attached to the will. That portion of Mr. Bjerke’s will states:

       EIGHTH: I have made a list of all my personal belongings and household
       effects, and have set forth in said list the party to whom I wish to give each
       item, and have made this list available to my said personal representative, and
       it is my desire that said heirs and beneficiaries abide by that list as if it were
       a part of this, my Last Will and Testament. Any article of personal property
       not designated by said list shall be determined to be a content of my house and
       shall be bequeathed to Teri R. Hanson.

¶2     Hanson argues that money is personal property. Accordingly, since Mr. Bjerke’s

money was not included on the attached list, Hanson posits that Bjerke intended to bequeath

all money to her as contents of his house. Darrel Tade, the personal representative

responded, seeking to void all of Hanson’s inheritance other than one dollar by invoking the

“no-contest” provision of the will. Hanson moved to have Darrel Tade removed as personal

representative.   The District Court’s summary judgment agreed with Hanson on the

interpretation of the eighth paragraph, which the District Court noted left nothing in the

residuary of Mr. Bjerke’s estate. The District Court also denied Hanson’s request to remove


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Darrel Tade as personal representative and concluded that the filing of a declaratory

judgment action did not constitute a contest under the “no-contest” provision of the will.

¶3       SAFI intervened as an interested party and successfully moved the District Court to

vacate the initial summary judgment order. SAFI then urged the District Court to interpret

Mr. Bjerke’s will in a way which would fund each paragraph, including the residuary, which

reads:

         NINTH: I give, devise and bequeath all the rest, residue and remainder of my
         estate, whatsoever and wheresoever, both real and personal, to which I may be
         entitled or which I may have power to dispose of at my death, after payment
         of my debts, funeral and testamentary expenses, and any legacies bequeathed
         hereby or by any codicil hereto, unto SAFI, a Montana non-profit corporation,
         of Scobey, Montana, to be used at its discretion.

¶4       In revisiting the issues on renewed motions for summary judgment, the District Court

determined that, from the ordinary meaning of the words in the will, it was not Mr. Bjerke’s

intention to include money invested outside the home as an article of personal property.

Thus, only cash deemed to have been found within the home was to be distributed to Hanson

under paragraph eight. The court determined that invested money or “money equivalents”

were not “article(s) of personal property” passing under paragraph eight and thus became

part of the residuary estate.

¶5       Hanson now appeals and SAFI cross appeals. We affirm.

¶6       Our standard of review of a district court’s findings of fact is whether they are clearly

erroneous. In re Estate of Kuralt, 2000 MT 359, ¶ 14, 303 Mont. 335, ¶ 14, 15 P.3d 931,




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¶ 14. Our review from an order granting or denying summary judgment is de novo. In re

Estate of Johnson, 2002 MT 341, ¶ 7, 313 Mont. 316, ¶ 7, 60 P.3d 1014, ¶ 7.

¶7     Hanson claims that money, both cash and invested money, is “personal property”

whether or not it is found in the house. Accordingly, all money not otherwise specifically

bequeathed should be determined to be a content of Mr. Bjerke’s house under paragraph

eight. SAFI counters that “articles of personal property” refers to tangible chattels, such as

those referenced in the list; that money is not an “article of personal property” and whether

or not found within the house, all money not otherwise designated should go to SAFI by the

terms of the residuary paragraph. In particular, SAFI contends that invested money is not

an item of tangible personal property.

¶8     As a legal term of art, the phrase “personal property” includes money. Section 1-1-

205(1), MCA, states that: “‘Personal Property’ means money, goods, chattels, things in

action, and evidences of debt.” However, that definition specifically applies only to the

Montana Code Annotated. Section 1-1-205, MCA. Nonetheless, the statutory definition of

“personal property” reflects the widely accepted definition. Black’s Law Dictionary states

that personal property is, “[i]n [a] broad and general sense, everything that is the subject of

ownership, not coming under denomination of real estate.” Black’s Law Dictionary, 1217

(6th ed. 1990). Personal property is to be distinguished from real property in the interpreta-

tion of a will. In re Estate of Wooten (1982), 198 Mont. 132, 643 P.2d 1196.

¶9     However, because Montana courts are guided by the bedrock principle of honoring

the intent of the testator, Kuralt, ¶ 17, we will apply legal terms of art to effectuate the intent

of the testator. To do so, the will must be read as a whole, with phrases and clauses read in


                                                4
context. Here, the testator referred not just to “personal property,” but more specifically to

“articles of personal property.” Furthermore, Mr. Bjerke had attached a list of items of

tangible personal property, pursuant to § 72-2-533, MCA. The list included such items as a

pickup truck, a snow-blower, and a floor hoist. Under the doctrine of ejusdem generis,

general words may be limited in their application to items of a similar class, as exemplified

by the more specific and particular words preceding the general phrase. Schuff v. A.T.

Klemens, 2000 MT 357, ¶¶ 116, 123, 303 Mont. 274, ¶¶ 116, 123, 16 P.3d 1002, ¶¶ 116,

123. We applied the doctrine of ejusdem generis in the context of interpreting a will in In

re Estate of Donovan (1976), 169 Mont. 278, 282, 546 P.2d 512, 514, where we concluded

that the general phrase “all my personal effects” did not include expensive jewelry when the

list preceding the phrase specifically included “costume jewelry” and other less expensive

items.

¶10      Hanson contends that the doctrine of ejusdem generis has no application here because

Mr. Bjerke was statutorily precluded from including money in a referenced list of “tangible

personal property.” Section 72-2-533, MCA. The statutory prohibition on listing money

does not, however, change the applicability of the ejusdem generis doctrine, which focuses

on what is specifically listed, not on what is omitted. In reading Mr. Bjerke’s will as a

whole, with an eye towards the doctrine of ejusdem generis, it is clear that he was

contemplating only tangible goods in his eighth paragraph. First, the list included only items

of tangible personal property. Second, the will’s reference to “articles” of personal property

reinforces the focus on the physical, tangible nature of the property. It is thus clear that he


                                              5
intended that articles of personal property which were not designated in the list “shall be

determined to be” contents of the house (irrespective of whether they were, in fact, found in

the house). Furthermore, the last sentence makes it clear that Mr. Bjerke intended that any

article of personal property not designated by the list shall be determined to be a content of

the house and shall be bequeathed to Teri Hanson. We hold that the District Court honored

the intent of the testator and correctly concluded that “cash” (i.e., currency and coin) is an

item of tangible personal property and that paragraph eight bequeathed to Hanson any cash

deemed to be found within the house. On the other hand, invested money is not an “article

of personal property” and thus does not pass to Hanson under paragraph eight as “contents

of the house.”

¶11    On the cross-appeal, SAFI contends that the District Court erred in determining that

cash is an item of personal property and thus should pass under paragraph eight of the will.

For the above-stated reasons, we affirm the court’s conclusion that cash comes within the

wording “articles of personal property” and like any other article of personal property not

designated by the list, “shall be determined to be a content of my house and shall be

bequeathed to Teri R. Hanson.”

¶12    As a last issue, Hanson also claims that the District Court erred in failing to remove

the personal representative. SAFI contends that Hanson waived this issue and failed to

preserve it for appeal by failing to request the District Court to rule on the issue after it

vacated its previous ruling. However, the record indicates that on the same day the District

Court vacated the first order, Hanson filed a motion for summary judgment accompanied by


                                              6
briefs, which incorporated all of her previous arguments, including her request that the

personal representative be removed. Thus, although Hanson did raise the issue, it was not

addressed in the District Court’s second order. SAFI claims that Hanson should have

brought the omission to the District Court’s attention. However, Rule 46, M.R.Civ.P., states

that formal exceptions to court rulings are not necessary, so long as the issue was properly

before the court, which it was. Therefore, the issue is appropriately before us on appeal.

¶13    A personal representative may be removed for cause. Cause exists:

               (a) when removal would be in the best interests of the estate; or
               (b) if it is shown that a personal representative or the person seeking
       his appointment intentionally misrepresented material facts in the proceedings
       leading to his appointment or that the personal representative has disregarded
       an order of the court, has become incapable of discharging the duties of his
       office, or has mismanaged the estate or failed to perform any duty pertaining
       to the office.

Section 72-3-526(2), MCA.

¶14    Hanson claims that personal representative Darrel Tade, contrary to the express terms

of the will, distributed $150,000 to SAFI. Hanson’s argument is premised on the assumption

that SAFI was not entitled to distribution of money found outside the house. However, as

we concluded above, that distribution was not in violation of any express terms of the will.

Hanson also claims that the personal representative improperly withheld real property that

was due Hanson and attempted to condition transfer of the real property on Hanson’s

abandoning her claim to money found outside the house. While it is unusual for a personal

representative to make distributions from the residuary of the estate prior to resolving or

disposing of other specific bequests or devises, Hanson fails to show that the personal


                                             7
representative mismanaged the estate or failed to perform any duty pertaining to the office.

Montana law specifically enumerates the duties of a personal representative. Title 72,

Chapter 3, Part 6, Montana Code Annotated. Hanson does not cite to any statutory provision

in support of her contention that she was entitled to “immediate” delivery of the property.

Indeed, the code does not require “immediate” delivery. Rather, the uniform probate code

provides that a personal representative has a “duty to settle and distribute the estate of the

decedent in accordance with the terms of any probated and effective will and this code and

as expeditiously and efficiently as is consistent with the best interests of the estate.” Section

72-3-610, MCA. Thus, Hanson failed to establish any of the statutory criteria sufficient to

warrant removal of a personal representative. We find no error in the District Court’s failure

to remove Tade as the personal representative.

¶15    Based on the foregoing, we affirm the order of the District Court.



                                                           /S/ W. WILLIAM LEAPHART


We concur:


/S/ KARLA M. GRAY
/S/ PATRICIA O. COTTER
/S/ JIM REGNIER
/S/ JOHN WARNER




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