ESTATE OF ERDAHL
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No. 80-339 IN THE SUPREW3 COURT OF THE STATE OF MONTANA 1981 IN THE MATTER OF THE ESTATE OF INGA ERDAHL, Deceased. Appeal from: District Court of the Fifteenth Judicial District, In and for the County of Roosevelt. Honorable M. James Sorte, Judge presiding. Counsel of Record: For Appellant: Graybill, Ostrem, Warner and Crotty, Great Falls, Montana For Respondent: Gallagher, Archambeault and Knierim, Glasgow, Montana Submitted on briefs: April 8, 1981 Filed: JUft 2 1) is31 Mr. J u s t i c e Gene B . D a l y d e l i v e r e d t h e O p i n i o n o f t h e C o u r t . is an This Court appeal t h a t Alvin Erdahl, from a holding hereinafter by the ~ i s t r i c t appellant, failed to e x e r c i s e a n o p t i o n " t o t a k e " c o n t a i n e d i n t h e L a s t W i l l and Testament of h i s mother, Inga Erdahl. Inga Erdahl died on September s u r v i v e d by e i g h t c h i l d r e n i n c l u d i n g 21, 1975, appellant. and Her is Last W i l l and T e s t a m e n t , d a t e d November 6 , 1 9 6 8 , was p r e p a r e d by and r e m a i n e d of Froid, i n t h e p o s s e s s i o n of a t t o r n e y J e r r y Wallender Montana. representative. with the appellant a s personal On A p r i l 2 4 , 1 9 7 8 , a p p e l l a n t f i l e d t h e w i l l District informal probate. admitted The w i l l named Court along On May 3 , t o probate in with his application for 1 9 7 8 , t h e d e c e d e n t ' s w i l l was informal proceedings; however, the t e s t a c y s t a t u s o f t h e d e c e d e n t was n o t d e t e r m i n e d u n t i l May 6, 1978. On November 2 1 , 1 9 7 8 , a p p e l l a n t was r e p l a c e d a s p e r s o n a l r e p r e s e n t a t i v e by h i s y o u n g e r b r o t h e r , I n g m a r . The w i l l c o n t a i n e d t h e f o l l o w i n g p a r a g r a p h s which a r e t h e s u b j e c t of t h i s l i t i g a t i o n : "FIFTH: I h e r e b y g i v e , d e v i s e and b e q u e a t h all of my property not hereinbefore m e n t i o n e d , b o t h r e a l and p e r s o n a l , o f e v e r y n a t u r e and w h e r e v e r s i t u a t e , o f w h i c h I may d i e s e i z e d o r p o s s e s s e d , t o s u c h o f my children a s s h a l l survive me, i n equal p a r t s , s u b j e c t , however, t o t h e p r o v i s i o n s o f paragraph Six ( 6 ) . ... "SIXTH: I h e r e b y g i v e my s o n , A l v i n 0 . E r d a h l , i f h e s u r v i v e s me, t h e o p t i o n t o t a k e a l l f a r m r e a l p r o p e r t y o f which I may d i e s e i z e d o r p o s s e s s e d and t h e r e s i d e n t i a l a l l said property property described a s h a v i n g been d e v i s e d and b e q u e a t h e d h e r e t o f o r i n p a r a g r a p h F i v e ( 5 ) a t a v a l u e o f Twentyt h r e e T h o u s a n d F i v e H u n d r e d a n d No/100 D o l l a r s ( $ 2 3 , 5 0 0 . 0 0 ) and t o d i s t r i b u t e s a i d payments i n a c c o r da n c e w i t h t h e p r o v i s i o n s of p a r a g r a p h F i v e ( 5 ) h e r e i n , and i n c a s e my s o n , A l v i n 0. E r d a h l , d o e s n o t e l e c t t o e x e r c i s e h i s o p t i o n , t h e n s u c h o p t i o n may be .. . exercised by my other children surviving me, according to priority of age, with distribution of payment therefor to be made according to the provisions of paragraph Five (5) herein. The option hereby expressed, in any event, to be exercised within two years of the date of my death." Since 1946 appellant has been in possession of and has farmed the property described in paragraph six on a crop-share basis wherein the crops and expenses were shared equally between appellant and his mother. After his mother's death, appellant continued in possession up to and including the date of the hearing on this matter. It was not until 1978 that appellant tendered payment of the purchase price of $23,500. On October 27, 1978, appellant caused to be deposited in the estate account the sum of $8,000, and on December 11, 1978, he forwarded a check in the amount $15,500 of to the representative's attorney, Francis Gallagher. personal However, on December 15, 1978, the personal representative remitted an $8,000 estate check to appellant and the $15,500 check was subsequently returned to appellant by Gallagher. At this time, the $8,000 estate check is in appellant's possession and remains uncashed. We are asked to decide whether the option to take was exercised within the designated two-year period. Appellant argues that by taking and treating the land and crops as his own and residing in the dwelling, he has exercised the option and, therefore, the property rightfully his under the will. is Also, upon inquiring into the exercise of the option, appellant was advised by the attorney who prepared the will, J. B. Wallender, that accepting the crop and treating the land as his own was sufficient to indicate an acceptance of the option. A p p e l l a n t c o n t e n d s t h e o p t i o n i s e x e r c i s a b l e by t a k i n g , n o t making payments, and his actions legal notice t o the other served d e v i s e e s of as constructive h i s exercise of the option. Respondent, on the other hand, contends that a p p e l l a n t d i d n o t e x e r c i s e t h e o p t i o n g i v e n him u n d e r p r o v i s i o n s of h i s m o t h e r ' s w i l l . before h i s mother's a p p e l l a n t handled death, As the compared t o t h e t i m e t h e r e was no c h a n g e i n t h e way t h e premises a f t e r her death. Paragraph s i x o f t h e w i l l r e q u i r e s payment o f t h e o p t i o n p r i c e d u r i n g t h e two-year l i f e of the option. T h i s was n o t d o n e , and, t h e r e f o r e , t h e o p t i o n was n o t p r o p e r l y e x e r c i s e d . I t is w e l l s e t t l e d t h a t t h e i n t e n t i o n o f a s expressed i n h i s w i l l , disposition. Section Keller, Etc. Comm'n v . a testator, c o n t r o l s t h e l e g a l e f f e c t of h i s 72-2-501, MCA; State, ( 1 9 7 7 ) , 1 7 3 Mont. Fish & Game 523, 568 P.2d 166. The i n t e n t o f t h e t e s t a t o r must be f o u n d from a l l p a r t s o f t h e w i l l which a r e t o be c o n s t r u e d i n r e l a t i o n t o e a c h o t h e r so as, if Spriggs' possible, Estate t o form o n e c o n s i s t e n t w h o l e . (1924), 70 Mont. 272, 225 P. In Re 617. The i n t e n t i o n o f t h e t e s t a t o r is a l s o t o b e a s c e r t a i n e d f r o m t h e w o r d s o f a w i l l which a r e t o be t a k e n i n t h e i r o r d i n a r y and grammatical sense, u n l e s s a c l e a r i n t e n t i o n t o u s e them i n another and sense ascertained. can be Section ( 1 9 5 4 ) , 1 2 8 Mont. collected 72-11-302, MCA; that In other Re can be Humes E s t a t e 223, 272 P.2d 999. Upon r e v i e w o f t h e e n t i r e r e c o r d and c o n s t r u c t i o n o f the will as a whole, the actions of appellant are i n s u f f i c i e n t t o c o n s t i t u t e an e x e r c i s e of t h e o p t i o n c r e a t e d in paragraph six. The operative words of the will are: "I hereby give my son . . . a value of accordance the option to take all $23,500 and with . . . property . . . to distribute paragraph five. said The payments option at in hereby expressed, in any event, to be exercised within two years of the date of my death." In the ordinary grammatical sense, the words "to take" mean to lay hold of, seize, deprive one of possession, or to assume ownership. 875, 63 S.W.2d 274; City of Durham v. Wright (1925), 190 N.C. 568, 130 S.E. 161. will, we Driver v. Driver (1933), 187 Ark. would have Were these words found alone in the no problem determining appellant's actions of possession and farming sufficient to constitute an exercise of the option. The words "to take," however, are not found in isolation; they are followed by "at a value of $23,500.00 and to distribute said payments in accordance with paragraph five. The option to be exercised within two years of the date of my death." Section 72-11-303, MCA, mandates that words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative. Adherence to appellant's contentions would render the above portion of the will meaningless and be in abrogation of section 72-11-303, MCA; this we will not do. If the will had simply given the property to appellant he would, of course, upon acceptance have acquired a fee simple title thereto subject to the charge. Here, however, appellant had a right to refuse to take, and the f e e s i m p l e t i t l e c o u l d n o t v e s t u n t i l h i s d e c i s i o n on t h a t point was made. As s t a t e d by C h i e f J u s t i c e Marshall in U n i t e d S t a t e s v . Grundy and T h o r n b u r g h ( 1 8 0 6 ) , 3 C r a n c h 3 3 7 , 3 5 2 , 2 L.Ed. " I t seems t o b e o f 459: r i g h t t o e l e c t o n e o f two t h i n g s , the very nature of a t h a t a c t u a l ownership is n o t a c q u i r e d i n e i t h e r , u n t i l it b e e l e c t e d . " The N.Y.S. 768, court 769, in In Re Champion's Estate (1890), 15 held t h a t an o p t i o n t o purchase is n o t a "devise" but rather a "beneficial right or privilege" t h a t t o become t h e owner o f t h e p r o p e r t y , and i t was n e c e s s a r y f o r t h e h o l d e r of t h e p r i v i l e g e t o t a k e a deed f o r it from t h e e x e c u t o r s and h i s t i t l e t o t h e p r o p e r t y would b e by d e e d and n o t by t h e w i l l . The t e s t a t r i x 1 . s i n t e n t i o n , a s e x p r e s s e d by t h e w i l l , r e q u i r e d a p p e l l a n t t o e x e r c i s e h i s o p t i o n b y making payment i n t h e amount o f $ 2 3 , 5 0 0 w i t h i n two y e a r s o f t h e d a t e o f h i s mother's death. A p p e l l a n t d i d n o t t e n d e r payment u n t i l more than three years a f t e r h i s mother's death. He t h u s f a i l e d t o adequately exercise h i s option. The judgment o f t h e D i s t r i c t C o u r t _ i s a f f i r m e d . L tkczy I Justice W concur: e /
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