*1 EVANS, E. OF ETHEL ESTATE In the Matter Deceased. No. 84-542. 9,May

Submitted on Briefs 1985. July Decided 1985. Rehearing Aug. Denied 1985. P.2d *2 Morrow, Sedivy Bennett, Lyman Bennett, III, Bozeman, & for H. appellant. Hollow, Helena, Daniels,

John L. Lodge, R. M.K. Deer Thomas Scott, Dillon, respondent.

MR. CHIEF Opinion JUSTICE TURNAGE of the delivered Court.

Co-personal representative, decedent, appeals daughter of the District, County, an order of requiring the Third Judicial Powell (Vs) equal one-eight distribution of the estate shares to decedent’s named The order denied reimbursement *3 attorney for fees by appellant. and costs incurred We affirm.

Appellant has asked this Court to consider two issues: 1. Does require decedent’s will all a distribution in shares to eight named or an to two distribution residuary branches of the devisee? appellant

2. attorney Is entitled to fees and costs in the District appeal prosecuting probate? Court on this action outside the Evans, widow, Ethel E. duly a executed her last will and testament Montana, 28, 25, Lodge, April Deer on 1983. She died November age at eighty-six, daughters, survived two grandchildren, son, great-grandchildren. and a Her number Evans, predeceased Charles her issue. without 1, 1983, probate Her was to admitted December in the District Court of daughters, the Third Judicial District. Her E. two Lois Montana, Geary Lodge, Meryl Hastings, Deer Ne- braska, appointed co-personal representatives were with directions performance security “to act without bond or other the faithful of their duties.”

Co-personal representatives attorney prepared had hired the who probate disagreement on Upon will to handle the of the estate. estate, September Meryl petition a distribution of the Kovatch filed 5, 1984, stating legal Her independent that she hired counsel. had petition disagreement her other noted with the attorney “the interpretation about the of the will. She the estate” residuary distributing for an her asked order estate one-half to sister, two six children of her Lois children and one-half to the Geary. attorney requested “reasonable fees the estate also any attorney be allowed in the addition to other fees that probate of the estate.” 20, 1984,

Following briefs, hearing September sub- extensive sequent memoranda, its order October issued “language of the will taken as a court concluded that clearly required distribution of the resid- unambiguously whole” uary “one-eighth equal grandchildren” named estate Further, parol unnecessary. and that the court found evidence was acting not the es- petitioner was behalf of her children and on attorney tate and therefore was not due fees and costs. Residuary No. Estate. I, Issue 1: Distribution of Paragraph In relationship Mrs. Evans to her. She also listed her heirs and their only her issue. Para- predeceased stated that her son had without graph governed appointment daughters co-per- II as both representatives. disposed of her estate Para- sonal Mrs. Evans (1) $10,000 graph specific III: each her two named devises of estate; (2) any di- with taxes to come from fair personal property plan allow a rections sell real and with (3) the residue of the estate purchase; chance for all her heirs to to her provisions question of the will under follow:

“I. son, me, no My predeceased leaving “I am a widow. Evans Charles GEARY, My surviving My daughter LOIS are follows: issue. heirs children, Montana, to-wit: RICH- Lodge, following Deer who has the *4 SCOTT, Helena, Montana, GEARY, M. ARD M. JOYCE Montana, GEARY, Helena, Idaho, Grangeville, ROBERT E. SMITH, Helena, Montana, Mis- OLSEN, C. M. JOAN ELAINE Helmville, Montana; GEARY, soula, Montana, DANIEL C. Nebraska, KOVATCH, Hastings, my A. daughter, MERLE [sic] KOVATCH, children, THOMAS S. following who has the to-wit: Missoula, Montana, KOVATCH, Hastings, JAMES P. Montana.

“HI. my

“I devise estate as follows: my “To daughters, each of LOIS E. GEARY and A. MERLE [sic] KOVATCH, give ($10,000). I Any the sum of Ten Thousand Dollars death or may tax to subject inheritance which said devisees be shall paid my residuary estate. liquidation

“. . . property.] on [Provision rest, “All of the my estate, real, residue personal and remainder of mixed, every nature, description, kind and wherever situated held, and however which is subject my testamentary be give disposition my grandchildren, I my death, at the time of Richard Geary, Joyce Scott, M. Smith, M. Robert E. Elaine M. Ol- son, Smith, Joan C. Geary, Daniel C. Thomas S. Kovatch,

James P. stirpes per capita.” and not (Emphasis added.)

Appellant contends language “per stirpes per cap- that the and not requires ita” according distribution to the “roots of inheritance” I, set in Paragraph i.e., out daughter Geary Lois has six who children daughter Meryl and her Kovatch who has two children.

Respondent contends grandchildren specifically were named as takers in the segregated and not into separate classes in Paragraph the devise. I family denotes the usual history grandchildren and not how the Paragraph are to take under III. grandchildren Since the primary legatees, “per stirpes” are the refers to how their issue legatees would take as substitute should grandchild predecease testatrix, one respondent contends. “Per stirpes” ancestors, does not living daughters, refer to the testatrix’s who are provision. not takers under this

We hold clearly testatrix intended her take in equally their own right by right representation and not through living parents. “per stirpes”

The words phrase mean the root or stock. The taking by right denotes a representation of that which an ancestor parties of the Wood v. Brown living. would take if Cal.App.2d per stirpes P.2d 861. Persons do who take and, so in capacity standing place de- of a *5 94 ancestor, only

ceased lived. take what he would taken had he have (Utah 1974), v. 799; v. 797, P.2d 528 Makoff Makoff Gustafson (1976), 338, 701, 703; Swenson In re Robins Mass.App. 4 347 N.E.2d (D.D.C. 1941), Estate 468, F.Supp. 38 471.

Ordinarily “per stirpes” the are used to substi words denote in primary tution legatee. case of death of the When descend by representation parents, they ants take take of their are said to i.e., “per stirpes,” among them share their children take which Fidelity Farley Union Trust Co. v. parent living. have if would (1940), 313, N.J.Eq. 346, stirpes” appli 127 13 A.2d 315. “Per is not class, legatees legatees designated rather cable named or as a but ordinary “per representation. by to their use of descendants stirpes” gifts to the to substituted relates distribution of substantial Swann Johnson v. legatees primary legatee. in case of death of (1956), 207, 603, 211 Md. 126 A.2d 606. disposition of and intention the testator should control the parts

the intent “be . . should found from all the will. construed In the relation to each ... one consistent whole.” other form (Mont. 230, 231, Matter the Estate Erdahl 1981), P.2d 38 630 978, St.Rep. 980.

Appellant for a determine asks strained construction of the grandchildren intent of to take the testatrix. Mrs. Evans named residuary “in limited shares” the entire estate. made equal specific daughters they under devises as all would take to her residuary her will. not to take under the Her were named antilapse never provision, and under Montana’s would take the 72-2-512 and 72-2- estate under the will. Sections 513, provide expressly MCA. She did that not in their own by relationship were to take mothers and not their name. (here are daughters) Mrs. Evans’

The fact that the ancestors place in their and living that not to shows beneficiaries are take they designating benefi purpose that for the are referred to (1941), Bank v. People’s National Greenville Harrison ciaries. 457, 18 1, “in gift 198 S.C. When in a S.E.2d 6. a clause alike,” designated name persons share share to twelve was held persons, Rhode Island descendants other required for distribution. that this into twelve shares division di and did not Naming merely legatees identified the the ancestors one- each class take vide them into with the intention that classes 434, 200, Winsome v. Brown A. 436-437. R.I. third. devise, they as indi- directly Where beneficiaries take take under capacity if testa- viduals and not tor(rix) they provides equal portions, it shall then take be equally. Coppedge Coppedge ( 1951), v. 234 N.C. 66 S.E.2d jurisdictions provi Other interpreted language similar to the have alike, sion Mrs. Evans’ will. Where a will stated “share share per stirpes, per capita,” Jersey the New court held in Vs not Vs equally go distribution would to each niece *6 and Vs to the other five daughters to three on another Deposit Camden (1933), & Trust Co. v. MacMullan branch. Safe 574, 105, 112 N.J.Eq. interpreted 165 A. 106. The New court York language, leaving “and to the issue of as died issue such have them surviving, per stirpes per capita,” to the not intend stirpital only apply any distribution should to deceased the issue of In single devisees who equal themselves take as a class with shares. re Title Guarantee Trust (1914), & Co. 803, N.Y.Supp. 159 A.D. 889, 893, aff'd 106 N.E. 1043. case,

In a “per stirpes later the New interpreted York not capita” following bequest nephews a “share to nieces alike,” not relating and share as to immediate of back the ancestors nephews Rather, the go nieces and for it does back distribution. not past In re Estate Ives’ the class that legatees. are the Misc. 291 N.Y.Supp. will, whole, equal

Mrs. Evans’ taken as a showed fairness and ity. devises, daughters equally specific She treated her in the al though by, lived appointed one close the in other Nebraska. She both daughters In co-equally, to administer the bond. estate without providing by purchase a method which her could her descendants personal real property ap unnecessary wrangling, an without at praised price, priority according she determined of choice would “be age to my in by case the same items if two or desired more [sic] “stock,” heirs.” preference “stirp,” She showed no for or branches devisees. Finally, separating she named grandchildren, each her without categories,

into “in in equal to take is no shares.” There indication entirety or the in to the less its of intention favor prolific 72-2-501, stock. “Intention the testator controls.” Section attorney MCA. representing who will in the estate drafted the supports position it was Evans’ intention to devise Mrs. eight grandchildren equally. residue to all identify Mrs. Evans named her in order the devisees. heirs devise, directly not Taking did divide them into under classes. grandchildren representative not take individuals and capacity. issue, great-grandchildren, Their Mrs. would have Evans’ (in stirpes” “per representative capacity) taken should grandchild predeceased daughters are have Mrs. Evans’ testatrix. living, residuary provision, and are not named devisees under “stirp” determining not purposes are intended for distribution. to, taking what their mothers are entitled are they in “in shares” but what their own names are to take correctly interpreted under the will. The District Court the will apportion Mrs. Evans’ individual on Attorney Issue No. 2: costs the District Court and fees appeal. Meryl co-personal representative as a was a fiduci- ary duty estate the estate with the to settle and distribute according best interests to the terms of the will and the code 72-3-610, of the estate and of the to the estate. Section successors legal By sought independent MCA. petition, admission she interpretation contrary propounded propose counsel to that an attorney the will. the estate who had also drafted duly personal Appellant she contends that was a nominated prosecuted proceeding good faith and who this attorney is in the thus entitled to costs and fees District Court appeal 72-3-632, disagree. pursuant on MCA. We Where to Section *7 is appointed co-representatives, there concurrence are two or more required on all the and distribu acts connected with administration concurrence, 72-3-622, tion of estate. Without the the Section MCA. acting Mrs. was the estate. She undertook Kovatch not on behalf of expense of this at the others. cause to benefit some the successors expe duty compromised the estate to settle and distribute ditiously efficiently pursuant fiduciary of Section to her duties MCA, 72-3-610, promote purpose the of the code and thwarted 72-1-102, liquidation MCA. efficiency Section and distribution. the policy, unwise to allow public a matter of it would be “[A]s the In the Matter funding litigation out of an estate residue.” Dygert 31, 33, Estate 550 P.2d 170 Mont. Finally “party within Rule aggrieved” she is not a repre appeal. personal M.R.App.Civ.P., purposes this While interpret the will under request sentative the Court to District 72-3-605, MCA, standing appeal the no Section Mrs. Kovatch has devisee, residuary resulting order. she has court Because she is not a adversely by no interest the affected order. provision

We properly interpreted hold that testa- devising equal trix’s will to her estate in appellant prosecute named We hold that did not this successors, fiduciary action in good faith as a of the estate and its attorney properly thus the court denied fees costs. Affirmed. HARRISON, MORRISON,

MR. JUSTICES GULBRANDSON and HUNT concur. WEBER,

MR. dissenting: JUSTICE In majority substance concludes it is fair that to distribute property equally eight grandchildren to all grandchild so that no ob- greater any analysis. tains a share than other. is an That attractive However, directly language it not does address the contradictions contained the will. pertinent part, provides:

In the will rest, “All my give of the I residue and remainder of estate ... my grandchildren, Joyce Geary, Scott, M. Richard M. Robert T. Geary, Olsen, Smith, Elaine M. C. Geary, Joan Daniel C. Thomas S. Kovatch, equal per stirpes and James P. and not per capita.” majority concludes this clear intent that indicates a any right repre- take in their own through living parents,

sentation who are the of the I deceased. do not can be believe that conclusion drawn wording itself. majority “per cap- does not discuss the definition of the words Parker, 36.6, Page

ita.” 4 Law W. Bowe and D. on the Wills at 556 states:

“A per capita equal property distribution is an of the to be division beneficiaries, among receiving divided share each the same others, each of the of de- without reference to the immediate course capita scent from the ancestor. A divi- distribution is an beneficiaries, sion among receiving each the same share as the others.” important “per capita”

It is to note is an distribution *8 among parties. per division the named As a result the words “not capita” clearly that the devise is as used the will indicates equal eight grandchildren. be in all shares to gives property in will states the testatrix stirpes equal per stirpes. per Under con- the definition of stating majority opinion, that she tained that is the same as equal gives to the chil- grandchildren, with shares one-half Lois, remaining daughter of her one-half dren interpretation Meryl. is daughter shares to the of her That children per capita,” which in substance consistent with the words “not to all property go that the is not means My quoted provision provides a stir- conclusion is that the go chil- pes six of the distribution under which would one-half dren, equally, remaining go to two and the one-half would children, equally. well, provisions I conclude that

Considering the other of the will quoted contradictory ambiguous, clause or at least is to determine the intent of additional should be obtained evidence I to the District Court for the testatrix. would remand the cause proceedings further to establish such intent. SHEEHY, dissenting:

MR. JUSTICE foregoing I in the JUSTICE WEBER. concur dissent of MR.