Gow v. O'Connor

208 P. 900, 63 Mont. 536, 1922 Mont. LEXIS 120
CourtMontana Supreme Court
DecidedJune 19, 1922
DocketNo. 4,964
StatusPublished
Cited by16 cases

This text of 208 P. 900 (Gow v. O'Connor) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gow v. O'Connor, 208 P. 900, 63 Mont. 536, 1922 Mont. LEXIS 120 (Mo. 1922).

Opinion

MR. JUSTICE FARR

delivered the opinion of the court.

This appeal is from an order appointing Paul A. Gow administrator with the will annexed of the estate of Charles D. McLure, deceased, and refusing to so appoint D. J. O’Connor.

The deceased died testate on May 20, 1918, possessed of real and personal property in Silver Bow county and other counties in Montana. He left surviving him a widow, six children, and a granddaughter. His will was admitted to pro[539]*539bate in Silver Bow county on June 20, 1918, and "William R. McLure, a son, and Clara McLure (Jones), a daughter, were appointed executor and executrix, respectively, pursuant to the nomination in the will. They served as such until April 23, 1921, when they were removed for cause. On April 23, 1921, D. J. O’Connor, a creditor, filed a petition for letters of administration with the will annexed. O’Connor became a creditor by the purchase, on January 31, 1921, from the Murray Hospital Association, of a claim against the estate in the sum of $162, for the consideration of $81; the assignment being filed February 11, 1921. On May 7, 1921, Paul A. Gow filed a petition asking that letters of administration with the will annexed be issued to him, alleging that he is the “nominee” of Marrianne McLure and Charlotte McLure McConnell, daughters, T. B. Edgar McLure, son, and Clara Edgar McLure, surviving widow. At the same time there were filed by the said Clara Edgar McLure, T. B. Edgar McLure, Charlotte McLure McConnell, Marrianne McLure, and Paul A. Gow, objections to the granting of the petition of D. J. O’Connor. O’Connor in turn filed objections to the petition of Paul A. Gow upon the ground of an alleged claim of Gow against the estate, and because of the alleged appropriation and conversion by Gow of property belonging to the estate. On May 21, 1921, O’Connor filed a motion to strike from the files the nomination made by the widow, Clara Edgar McLure, of Paul A. Gow for appointment as administrator, claiming, in effect, that the widow is not entitled to any portion of the personal estate of her deceased husband; that under the will she takes only such dower as is allowed under the laws of Montana, namely, a “third part of all lands whereof her husband was seized of an estate of inheritance * * * ” (sec. 5813, Rev. Codes 1921), and, not having elected to renounce the devise in the will, she is now barred of such election and, as a result, is not herself entitled to letters of administration or to nominate any person for appointment. The petitions, the objections, and O’Connor’s motion to strike the nomination made by [540]*540the widow, were all heard and considered together. The motion to strike was denied, and Paul A. Gow was appointed administrator with the will annexed. The appeal is from the order appointing Gow and refusing to so appoint O’Connor.

The ruling of the court in denying the motion to strike the nomination made by the widow, Clara Edgar MeLure, of Paul A. Gow as administrator with the will annexed, is assigned as error. It is insisted by appellant’s counsel that the widow did not have the right of nomination of an administrator with the will annexed because, it is argued: That by the terms of the will she is not entitled to take any portion of decedent’s personal estate; that she has not elected to renounce said devise under the will and take her dower in the lands and her share in the personal estate; and that she is now barred of such election by the provisions of sections 5819 and 5820, Revised Codes of 1921, not being entitled to any portion of the personal property under section 10068, Revised Codes of 1921, which provides that relatives of the deceased are “entitled to administer only when they are entitled to succeed to his personal estate, or some portion thereof,” that she is neither entitled to administer herself nor to nominate someone as administrator.

The will first makes a bequest to Clara Irene MeLure, a granddaughter, the only daughter of a deceased son, of $50, and next a bequest to Clara MeLure (Jones), a daughter, and William R. MeLure, a son, for the use and benefit of the said child, Clara Irene MeLure, the same portion of the estate as her father would have under the laws of succession if he were living at the time of the death of the testator. It then provides that “all of the remainder of my property shall be divided equally among my six children now living.” Then follows the nomination of the executor and the executrix, and then next, and immediately before the date line and signature, is the following provision: “My wife shall be endowed in my estate, real and personal in [541]*541Montana as under the law of Montana, real in any other state as under the law of such state.”

While it is argued that these provisions are inconsistent, appellant does not contend, as we understand, that effect must not be given to the provision in favor of the widow. “All the parts of a will are to be construed in relation to each other, so as, if possible, to form one consistent whole, * * * ” is the language of section 7020, Revised Codes of 1921; and even if it could be contended that these provisions are absolutely irreconcilable, then the provision in favor of the widow would prevail. (Sec. 7020, Rev. Codes 1921.)

In construing the provision in favor of the widow, it is necessary to first arrive at the testator’s intention, and that construction will be favored which will reconcile the several provisions with his intention, for a will is to be construed according to the intentions of the testator. (Sec. 7016, Rev. Codes 1921.) What portion of his estate did the testator intend his widow to have by saying, “My wife shall be endowed in my estate * * ”? What did he mean by the word “endow”? Did he intend thereby that his widow should be limited to her right of dower—a third part of all his lands—as contended for by appellant; or did he intend that she should have that same portion of his estate, both real and personal, to which she would have been entitled had he died intestate? Appellant’s construction would take from the widow, the natural object of the testator’s bounty, that which without a will the law would have given to her. Such a construction is not to be favored unless the “intention” of the testator is so expressed in clear and unequivocal language.

“The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be collected, and that other can be ascertained.” (See. 7023, Rev. Codes 1921.) The word “endow” in its ordinary and grammatical sense means: To furnish with money or its equivalent; to make pecuniary provision for; to [542]*542bestow a fund or income upon or for, as a permanent provision for an appointed purpose. (Webster’s New International Dictionary; Century Dictionary; Standard Dictionary.) An old marriage ceremony concludes with the words, “With all my worldly goods I thee endow.” The testator in using the word “endowed,” at least so far as the Montana “estate” is concerned, in our opinion, and we so hold, did not intend that it be limited to the technical sense of giving “dower,” a provision out of real estate, but did intend that it should include “all his worldly goods,” personal as well as real. (Gupton v. Gupton, 40 Tenn.

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Cite This Page — Counsel Stack

Bluebook (online)
208 P. 900, 63 Mont. 536, 1922 Mont. LEXIS 120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gow-v-oconnor-mont-1922.