                                 No. 12432

       I N T E SUPREME C U T O THE STATE O M N A A
            H           OR    F           F OTN




I N THE M T E O T E ESTATE OF
         ATR F H
RUDY G. HERZOG, Deceased,
FLORENCE HERZOG,

                         P e t i t i o n e r and A p p e l l a n t ,



JOSEPH B. GARY, Executor of t h e E s t a t e
of RUDY G. HERZOG, Deceased,

                         Defendant and Respondent.



Appeal from:     D i s t r i c t Court of t h e Eighteenth J u d i c i a l D i s t r i c t ,
                 Honorable W. W. Lessley, Judge p r e s i d i n g .

Counsel o f Record :

    For Appellant :

           Berg, 0 ' Connell , Angel and Andriolo, Bozeman, Montana.
           Ben 4E. Berg argued, Bozeman, Montana.

    For Respondent :

           Brown and G i l b e r t , Bozeman, Montana.
           Landoe and Gary, Bozeman, Montana.
           Joseph B. Gary argued, Bozeman, Montana.



                                                   Submitted:           May 29, 1973

                                                      Decided :        JUL 2 3 1973
Filed :   JuL 2 3 1973
PJr.Justice Gene B. Daly delivered the Opinion of the Court.

        Petitioner and appellant, Florence Herzog, brings this
appeal from a summary judgment entered by the district court of
Gallatin County denying the relief sought in her petition for
determination of heirship.
        Florence T. Herzog and Rudy G. Herzog, deceased, executed
an ante-nuptial agreement on August 18, 1970, and were married
the same day.   The Herzogs were married but estranged when Rudy
Herzog died, fourteen months later.   The ante-nuptial agreement
provided that the wife would be made beneficiary of a life in-
surance policy in the amount of $20,000 so long as the parties
were married; that the property and earnings of each spouse were
to remain in the same ownership status as before the marriage;
and, that in the event of a divorce a payment of $400 per month
to the wife for a stated period would be a full and complete
settlement for all claims arising out of the divorce.   The agree-
ment concluded with the statement:
       "It is understood and agreed that the provisions
       herein provided for in this sub-paragraph [the
       divorce settlement] are contemplated to make the
       marriage a solid and lasting marriage, and that
       the hopes and aspirations of the Parties are to
       this effect, rather than a divorce, and a dis-
       pute over alimony support, dower rights and
       other claims that can arise as a result of a
       divorce between married persons.
       "It is further agreed that nothing herein shall
       be construed to be a bar by either Party giving
       to the other Party any property of which he or
       she may be possessed to the other Party by Will
       or otherwise. It is understood that each Party
       to this Agreement shall control his or her own
       personal estate described herein, and do with
       the properties whatever he or she wishes and
       wills. "
        The estate was appraised at $30,130 in real property, and
$307,336.05 in personal property, the principal asset being stock
in a business known as Rudy's Distributing Company.   Decedent
Herzog's will was admitted to probate on November 3, 1971, and
by its terms the bulk of the estate was left to the decedent's
five minor children by a previous marriage.   The third paragraph
of the will stated:
        "I have entered into an anlienuptial agreement with
        my wife, Florence Herzog, and we are estranged,
        and therefore I do not leave any property, real or
        personal, to my wife, Florence Herzog, otherwise
        than provided for in the ante-nuptial agreement."
        On August 17, 1972, Florence Herzog filed a petition to
determine heirship.   Hearing was held and summary judgment was
entered upon the motion of the executor.   The district court
stated in its order that no filing of renunciation or contest had
been made by the petitioner within the six months period alloted
by statute.
        Before discussing the issues presented on this appeal,
we wish to make it clear that no effort has been made by Mrs.
Herzog to set aside or challenge the ante-nuptial agreement it-
self and the cause was tried in the district court solely with
reference to the provisions of the probate law.   We shall deal
with the issues within that framework, and call attention to
the fact that the principles here announced apply only to the
law of the case as set forth and do not concern the effect or
legality of the ante-nuptial agreement itself as that issue was
never raised.
        With this admonition we proceed to the discussion of
the four issues raised by Florence Herzog on this appeal:
        (1) The court erred in holding that petitioner must
renounce the benefits of her husband's will when it expressly
disinherits her.
        (2) The court erred in holding that petitioner must

contest her husband's will in order to establish her rights of
inheritance.
        (3) The court erred in concluding, if it did, that section
91-3801, R.C.M.   1947, precludes the widow's petition.
          (4) The court erred in concluding, if it did, that
petitioner by accepting the benefits of the ante-nuptial agree-
ment waived her rights in the estate of Rudy G. Herzog.
          In the first issue we find the statement of appellant
that the will "expressly disinherits her" to be incorrect.     The
heretofore quoted third paragraph of decedent's will is not an
express disinheritance.    The paragraph makes reference to the
ante-nuptial agreement entered into by decedent and his wife under
which she was to be made beneficiary of a $20,000 life insurance
policy.
          By application of the doctrine of incorporation by refer-
ence, the third paragraph of the will operates to include, as an
effective bequest within the provisions of the will, $20,000 to
be paid out of the proceeds of a specific life insurance policy.
          Few cases have been decided in Montana involving this
principle of law, as to wills, which originated in early English
common law.   As it has developed in modern application, the doc-
trine of incorporation by reference enables the admission into
probate of certain nontestamentary writings, executed without
statutory formalities.    However, in order to limit the danger of
fraud, certain conditions have been established by practice and
precedent.    The California Appeals Court, in In re Estate of
Foxworth, 240 C.A.2d 784, 50 Cal.Rptr. 237, 240, enumerated the
following conditions:
          "It has also been said that the requisites of
          incorporation by reference are (1) the extrinsic
          paper must be in existence at the time the will
          makes reference to it; (2) the will must identify
          the paper by a sufficiently certain description,
          and extrinsic evidence is admissible as: an aid to
          such identification; and (3) it must appear that
          the testator intended to incorporate the paper for
          the purpose of carrying out his testamentary desires.
          Iciting treatise and cases]."
        See also:    144 A.L.R.        57 Arn.Jur., Wills, SS 233-242,
94 C.J.S.   Wills S 163.
        We find the writing referred to in the third paragraph of
the will, that is, the ante-nuptial agreement, was in existence
at the time the will was executed, that it was reasonably identi-
fied within the terms of the will, and that it appears to have
been testator Herzog's intention to incorporate that agreement
within the terms of his will to carry out his testamentary wishes.
        Because the provision in the ante-nuptial agreement
concerning the insurance policy was incorporated by reference
into the will, the $20,000 proceeds of that policy became a be-
quest under the will.      The estate must satisfy that bequest and
the fact it is paid out of insurance proceeds which are generally
not part of the estate is immaterial.      This $20,000 obligation
by reason of a bequest in the will would remain, regardless of
lapse in the policy or change of beneficiary, and any possible
contract remedy Mrs. Herzog might have had in those events.
        Although it appears from the record that the executor
failed to recognize and pursue the appropriate remedy under an
application of the doctrine of incorporation by reference, never-
theless both the will and the ante-nuptial agreement were prop-
erly before the court at the time the summary judgment was granted.
        Section 22-107, R.C.M. 1947, provides:
        "Every devise or bequest to her by her husband's
        will shall bar a widow's dower in his lands
        and her share in his personal estate unless
        otherwise expressed in the will; but she may elect
        whether she will take under the provisions for
        her in the will of her deceased husband or will
        renounce the benefit of such provisions for her,
        and take her dower in the lands and her share in
        the personal estate under the succession statutes,
        as if there had been no will, but not in excess
        of two-thirds (2/3) of the husband's net estate,
        real and personal, after the payment of creditors'
        claims, expenses of administration and any and
        all taxes, including state and federal inheri-
        tance and estate taxes."
          Since the provisions of the ante-nuptial agreement were
incorporated by reference into the will and amounted to a bequest
under the will, the provisions of section 22-107, R.C.M.   1947, are
applicable, i.e. the widow, Florence Herzog, had the statutory
right to renounce the will.    However, since it appears from the
record to be a stipulated fact that she did not file a written
renunciation within six months, as required under section 22-108,
R.C.M.   1947, the district court correctly held that she cannot
now defeat the provisions of the will.
          In the second and third issues we find the district court
correctly held the six months statutory limitation for contesting
the will as stated in section 91-1101, R.C.M.   1947, had expired.
However, this is not a determinative issue here because it does
not appear that the validity of the will was ever at issue. Ap-
pellant is correct in her contention that it was never necessary
for her to contest the will as invalid to share in the estate
through dower and succession, rather than as provided in the will.
But, it was necessary to renounce the valid will within the time
limitation and in the form prescribed by section 22-108, R.C.M.
1947.    The trial court was correct in entering summary judgment
concerning the petition for determination of heirship as it pre-
sented no disputed issues of fact, and the issues of law therein
were correctly decided by the court, i.e., the will was valid
and properly admitted into probate, and the alloted time for re-
nunciation under section 22-108, R.C.M. 1947, had expired.
         The fourth issue concerning a waiver by reason of the
ante-nuptial agreement is also outside the issue of the case.
Appellant cites sound authority for the principle that a widow's
statutory rights of dower and inheritance by    succession can be
waived by ante-nuptial agreement only upon words expressly, or
by clear implication, declaring that it is the express intention
    of the wife to do so.   However, the determining factor in the
    instant case is not the operation of the ante-nuptial agreement
    as a waiver, but rather as a bequest through incorporation by
    reference into the will.

              The judgment of the




1   /   Chief Justice
