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No. 00-808
IN THE SUPREME COURT OF THE STATE OF MONTANA
2001 MT 194
IN THE MATTER OF THE ESTATE
OF ROBERT M. MARTELLE,
Deceased.
APPEAL FROM: District Court of the Twenty-Second Judicial District,
In and for the County of Big Horn,
The Honorable Blair Jones, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Gary Ryder, Attorney at Law, Hysham, Montana
For Respondent:
John T. Jones, Gerry Fagan, Moulton, Bellingham, Longo & Mather, P.C., Billings, Montana
For Personal Representative:
Natasha J. Morton, Attorney at Law, Hardin, Montana
Submitted on Briefs: May 31, 2001
Decided: September 20, 2001
Filed:
__________________________________________
Clerk
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Justice Terry N. Trieweiler delivered the Opinion of the Court.
¶1 The Respondent and surviving spouse, Sue Ann Martelle, filed a claim for the
homestead allowance, exempt property, and family allowance from the estate of Robert
M. Martelle in the District Court for the Twenty-Second Judicial District in Big Horn
County. Two interested parties, Robert J. Martelle, decedent's son from a previous
marriage, and, Betty Miller, decedent's sister, contested the surviving spouse's right to the
statutory allowances. Following the parties stipulation to have the legal issues decided on
briefs, the District Court issued an order in which it concluded that Sue Ann Martelle is
entitled to the benefits of the homestead allowance in the amount of $20,000, exempt
property in the amount of $10,000, and the family allowance as determined by the
personal representative. The interested parties in the estate appeal the order. We affirm the
order of the District Court.
¶2 The following issues are presented on appeal:
¶3 1. Did the District Court err when it concluded that a surviving spouse is entitled to a
homestead allowance pursuant to § 72-2-412, MCA, in addition to residential property
received by right of survivorship?
¶4 2. Did the District Court err when it denied a request for a scheduling order and an
estate inventory before deciding the surviving spouse's entitlement to the homestead
allowance, exempt property, and family allowance?
FACTUAL BACKGROUND
¶5 During their marriage, Robert M. Martelle and Sue Ann Martelle acquired two
residential houses in Hardin, Montana, as joint tenants with the right of survivorship.
¶6 On October 15, 1998, Robert executed a will with the assistance of his attorney. In the
will, Robert expressed his intent that his wife satisfy her entitlement to his estate from the
two pieces of real estate held in joint tenancy, and leave the remainder of his estate to his
three children, Robert J. Martelle, Christina Unruh, and Montie Rae Martelle. In addition,
Robert nominated his physician, Dr. James Upchurch, to serve as his personal
representative.
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¶7 On the same day, Robert executed a Change of Beneficiary Form for his individual
retirement account (IRA) held at First Interstate Bank of Miles City. The IRA was worth
$15,971.49 and the beneficiary was changed from Betty Miller, his sister, to the estate of
Robert M. Martelle.
¶8 Robert died on October 22, 1998. An Order of Informal Probate and Appointment of
Personal Representative was filed and granted in the District Court for the Twenty-Second
Judicial District in Big Horn County on November 4, 1998. Dr. James Upchurch was
appointed personal representative, pursuant to Robert's will.
¶9 On March 8, 1999, Sue Ann Martelle filed a notice of election of her statutory rights as
a surviving spouse, including the homestead allowance, exempt property, and family
allowance. Robert's son and sister (hereafter, "Interested Parties") disputed the surviving
spouse's right to the statutory allowances. Given the dispute, the personal representative
was reluctant to proceed without court involvement. Therefore, on May 17, 2000, pursuant
to § 72-2-415(1), MCA, the surviving spouse petitioned the District Court for an order
establishing her entitlement to these allowances.
¶10 The Interested Parties objected to the petition and to an order setting a hearing on the
petition, claiming it was premature. Specifically, the Interested Parties objected to the
failure of the personal representative to file an estate inventory. The District Court did not
respond directly to the Interested Parties objection.
¶11 Following disagreements on a hearing date at which to consider the petition, the
parties stipulated to an order vacating the hearing date and agreed to have the legal issues
resolved based on briefs. On September 22, 2000, the District Court held that the
surviving spouse was entitled to the homestead allowance, the exempt property allowance,
and a family allowance to be determined by the personal representative.
¶12 No estate inventory or scheduling order had been filed prior to the District Court's
award of the allowances.
¶13 The Interested Parties filed a Notice of Appeal on September 23, 2000, appealing the
District Court order granting the homestead allowance and exempt property allowance to
Sue Ann Martelle.
STANDARD OF REVIEW
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¶14 The standard of review of a trial court's conclusions of law is whether the trial court's
interpretation of the law is correct. In re Estate of Kuralt, 2000 MT 359, ¶ 14, 303 Mont.
335, ¶ 14, 15 P.3d 931, ¶ 14 (citing Carbon County v. Union Reserve Coal Co. (1995),
271 Mont. 459, 469, 898 P.2d 680, 686.).
DISCUSSION
ISSUE 1
¶15 Did the District Court err when it concluded that a surviving spouse is entitled to a
homestead allowance pursuant to § 72-2-412, MCA, in addition to residential property
received by right of survivorship?
¶16 The primary purpose of the homestead allowance is to protect the family of the
decedent. In re Estate of Merkel (1980), 190 Mont. 78, 84, 618 P.2d 872, 875. The
homestead allowance, in addition to the exempt property and family allowances, were
created to ensure that a surviving spouse was not left penniless and abandoned by the
death of a spouse. In re Estate of Lawson (1986), 222 Mont. 276, 279, 721 P.2d 760, 762.
Montana adopted the homestead allowance as part of its adoption of the Uniform Probate
Code in 1974. § 72-1-107, MCA.
¶17 Section 72-2-412, MCA, the homestead allowance statute, provides as follows:
A decedent's surviving spouse is entitled to a homestead allowance of $20,000. If
there is no surviving spouse, each minor child and each dependent child of the
decedent is entitled to a homestead allowance amounting to $20,000 divided by the
number of minor and dependent children of the decedent. The homestead allowance
is exempt from and has priority over all claims against the estate. Homestead
allowance is in addition to any share passing to the surviving spouse or minor or
dependent child by the will of the decedent unless otherwise provided, by intestate
succession, or by way of elective share. [Emphasis added.]
¶18 When we interpret a statute, this Court's purpose is to implement the objectives the
legislature sought to achieve. Western Energy Co. v. State, Dept. of Revenue, 1999 MT
289, ¶11, 297 Mont. 55, ¶11, 990 P.2d 767, ¶11. If the intent of the legislature can be
determined from the plain language of the statute, the plain language controls and we may
not go further and apply other means of interpretation. Western Energy Co., ¶11.
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Furthermore, this Court is required to simply ascertain and declare what is in terms or in
substance contained in the statute, neither inserting what has been omitted nor omitting
what has been inserted. § 1-2-101, MCA.
¶19 Appellants argue that the District Court incorrectly interpreted § 72-2-412, MCA,
when it awarded the surviving spouse a homestead allowance of $20,000 without
considering the property interest transferred to the surviving spouse through joint tenancy.
Appellants contend that § 70-32-101, MCA, which defines "homestead" in the exempt
property context and provides the only statutory definition of "homestead," should be
applied to the homestead allowance statute in the Uniform Probate Code. Section 70-32-
101, MCA, provides:
The homestead consists of the dwelling house or mobile home, and all
appurtenances, in which the claimant resides and the land, if any, on which the same
is situated, selected as provided in this chapter.
Because the two residential houses were transferred through joint tenancy, the
"homestead" as defined in § 70-32-101, MCA, has, in essence, already been provided to
the surviving spouse. Therefore, Appellants argue that no homestead allowance should be
permitted from non-homestead assets and that allowing Sue Ann Martelle to receive
property through joint tenancy and the homestead allowance would lead to an
unreasonable and unintended result. Appellants point to the Montana Legislature's creation
of three separate Probate Code allowances as support that the homestead allowance only
applies to the primary residence of the individual claiming the allowance.
¶20 The District Court concluded that it had no discretion to disallow or limit the
homestead allowance, because the plain language of the homestead statute creates an
absolute benefit to the surviving spouse. We conclude that the District Court was correct.
¶21 Section 72-2-412, MCA, clearly and unambiguously provides that a surviving spouse
is entitled to a homestead allowance of $20,000, as a matter of law. The homestead
allowance "is exempt from and has priority over all other claims against the estate" and "is
in addition to any share passing . . . by the will of the decedent . . . by intestate succession,
or by way of elective share." § 72-2-412, MCA. Because the meaning of the statute is
clear, we may not employ other means of interpretation.
¶22 The sole statutory condition for receipt of the homestead allowance by the surviving
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spouse is that she survive the decedent by 120 hours. § 72-2-712, MCA; Merkel, 190
Mont. at 84, 618 P.2d at 876. There is no other requirement, qualification, or condition to
receipt of the homestead allowance by the surviving spouse. Section 72-2-412, MCA, does
not require a showing of financial need, nor does it forbid surviving joint tenants from
making a homestead allowance claim.
¶23 In fact, this Court has awarded statutory allowances to the surviving spouse despite
the receipt of substantial assets by the surviving spouse through joint tenancy. See
Lawson, 222 Mont. 276, 721 P.2d 760. In Lawson, the surviving spouse received $150,000
in cash and certificates of deposit, through joint tenancy, which she used to buy a ranch.
Nevertheless, this Court affirmed an order requiring that the estate pay the homestead
allowance and family allowance. Lawson, 222 Mont. at 277, 721 P.2d at 761. We held that
"[b]ecause of the nature of allowances provided for the family, defenses such as offset,
satisfaction, payment, or abandonment if they could be proved, should not be allowed as a
matter of policy." 222 Mont. at 279, 721 P.2d at 762. For this same reason, Appellants
attempt to apply property received through joint tenancy to satisfy the homestead
allowance is not well taken. Because Sue Ann Martelle survived her husband by 120
hours, she is entitled to the homestead allowance.
¶24 As to Appellant's claim that § 70-32-101, MCA, necessarily defines "homestead" as
used in § 72-2-412, MCA, we conclude that the statutes neither relate to the same subject,
nor serve the same objective. The homestead allowance in the Uniform Probate Code and
the homestead exemption in Montana's property laws relate to distinct subjects in separate
sections of Montana law. The legislature, when it adopted the definition of homestead in
the homestead exemption statutes, created a device by which a debtor's residence could be
shielded against forced sale by creditors. On the other hand, when it adopted the
homestead allowance, the legislature sought to protect the decedent's family prior to estate
distribution. Furthermore, the levels of protection are different. The homestead allowance
is a $20,000 payment, while the homestead exemption is in the amount of $60,000. We
conclude that the statutes are unrelated and that, therefore, the definitional language in the
property exemption statute does not override otherwise inconsistent language in the
homestead allowance statute.
¶25 We therefore conclude that Sue Ann Martelle is entitled to the homestead allowance
of $20,000. As we stated in Merkel, the "present homestead allowance is no longer an
interest just in land, but is an allowance which may be satisfied in any type of property."
190 Mont. at 86, 618 P.2d at 877. Therefore, the homestead allowance can be claimed
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from assets other than the dwelling house or land. Although Merkel considered whether
homestead and exempt property allowances were only a life estate or an estate in fee, its
ultimate holding related to the absolute nature of the allowances, which, in turn, applies to
these facts.
¶26 The homestead allowance should be liberally construed to effectuate its purpose, a
public policy to protect the surviving family of the decedent. It is an "off the top"
allowance which grants the decedent's family a vested interest apart from, and in addition
to, any other rights flowing from the estate. As we stated in Heiser, "[t]o permit the
ultimate decision to be influenced by the equities and sentiments of each particular case
would thus render the homestead allowance meaningless and impossible of interpretation."
In re Estate of Heiser (1983), 207 Mont. 126, 129, 672 P.2d 1124, 1126. The homestead
allowance in probate is a grant by law to benefit the surviving spouse or her estate, with no
qualification except that she survive the decedent by 120 hours. Therefore, we affirm the
District Court's award of the homestead allowance.
ISSUE 2
¶27 Did the District Court err when it denied a request for a scheduling order and an estate
inventory before deciding the surviving spouse's entitlement to the homestead allowance,
exempt property, and family allowance?
¶28 Respondent contends the Appellants did not properly preserve the second issue for
appeal because the Notice of Appeal designates only one issue, the propriety of the
District Court's order establishing that Sue Ann Martelle was entitled to the homestead
allowance and the exempt property allowance. The Notice of Appeal states:
The interested parties in this matter, Robert J. Martelle and Betty Miller, appeal
from an Ordered [sic] signed September 22, 2000 and filed September 26, 2000, by
the Honorable Blair Jones, District Court Judge, granting the Homestead Allowance
in the amount of $20,000.00 and an Exempt Property Allowance in the amount of
$10,000.00 to the surviving spouse, Sue Ann Martelle. Such appeal is being made
pursuant to Rule 1 of the Montana Rules of Appellate Procedure.
¶29 Respondent argues that because the second issue is a separate and distinct issue from
the homestead allowance issue, and was not raised with particularity in the Notice of
Appeal, it should be disregarded.
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¶30 The required content of the notice of appeal is established by Rule 4(c) of the Rules of
Appellate Procedure, which states:
The notice of appeal shall specify the party or parties taking the appeal; and shall
designate the judgment, order or part thereof appealed from . . . . An appeal shall not
be dismissed for informality of form or title of the notice of appeal, so long as the
information required in Form 1 in the Appendix of Forms to Rule 54 is contained in
the notice of appeal. Rule 4(c), Mont.R.App.P.
Here, the parties were identified in the notice of appeal, and the appealed order was
properly designated. Although the issue of the scheduling order was not specifically
mentioned, it was an underlying issue to the eventual order by the District Court that was
properly raised in the Objection to Order Setting Hearing, filed on May 19, 2000.
Therefore, we conclude that the second issue was properly preserved.
¶31 As to the issue presented, the Montana Rules of Civil Procedure are applicable to the
Uniform Probate Code unless specifically provided to the contrary in the code or unless
inconsistent with its provisions. § 72-1-207, MCA. Appellants contend that the family
members should be entitled to an estate inventory and discovery related to that inventory
before statutory allowances are awarded. They rely on Rule 16(b) of the Rules of Civil
Procedure, which provides as follows:
Scheduling and Planning. Except in categories of actions exempted by district
court rule as inappropriate, the judge shall . . . enter a scheduling order that limits
the time
(1) to join other parties and to amend the pleadings;
(2) to file and hear motions; and
(3) to complete discovery.
The scheduling order also may include
(4) the date or dates for conferences before trial, final pretrial conferences, and trial;
and (5) any other matters appropriate in the circumstances of the case.
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The order shall issue as soon as practicable but in no event more than 120 days after the
filing of the complaint. A schedule shall not be modified except by leave of the judge
upon a showing of good cause. [Emphasis added.]
¶32 The goal of Rule 16(b) is to facilitate the pretrial process by setting a schedule with
the input of all parties participating in the litigation.
¶33 At issue here is a petition for probate. Unlike other civil litigation in which a
complaint is filed giving notice to the defendants of the claims being brought, a petition
for probate is the beginning of a process to distribute the estate of the decedent. It is
unclear upon the filing of a petition for probate what challenges will be made and what
issues will be raised. It would be administratively inefficient and contrary to the purpose
for which Rule 16(b) was adopted to require the district court to file a scheduling order
within 120 days of the filing of a petition for probate before knowledge of any disputed
issues. Therefore, Rule 16(b) is inconsistent with probate proceedings. That being said,
when disputed issues do arise during probate and a petition is filed with the court, the
surviving spouse or any interested party may file a motion to enter a scheduling order,
which would be left to the district court's discretion.
¶34 Here, the Appellants objected to an order setting a hearing on a petition to establish
the surviving spouse's right to statutory allowances, and requested the District Court set a
deadline for the filing of an estate inventory and enter a scheduling order to set discovery
deadlines. However, there were no factual issues before the Court. The District Court
correctly declared the surviving spouse was entitled to the homestead allowance and
exempt property as a matter of law, and because these were legal issues, it was within the
District Court's discretion to decide them prior to a scheduling order or an estate inventory.
¶35 Similarly, the surviving spouse is entitled to a family allowance as a matter of law,
although the form and the amount of such allowance, pursuant to § 72-2-414, MCA, is
discretionary and depends on the circumstances of the case. In re Estate of Lettengarver
(1991), 249 Mont. 92, 95, 813 P.2d 468, 471. Section 72-2-415, MCA, which discusses
source, determination, and documentation of allowances and exempt property, states:
The personal representative may determine the family allowance in a lump sum not
exceeding $18,000 or periodic installments not exceeding $1,500 per month for 1
year and may disburse funds of the estate in payment of the family allowance and
any part of the homestead allowance payable in cash.
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¶36 Any interested person, like the Appellants, aggrieved by any selection, determination,
payment, proposed payment, or failure to act may petition the court for appropriate relief.
§ 72-2-415(1), MCA. Upon petition, the district court may provide a family allowance
larger or smaller than that which the personal representative determined or could have
determined. § 72-2-415(1), MCA. We note upon examination of the record that the
personal representative has yet to determine the family allowance. Until the personal
representative determines the form and amount of the family allowance, questions of asset
valuation and "lack of need," which are factual issues, are not ripe for review.
¶37 Because the surviving spouse is entitled to the homestead allowance, exempt property,
and family allowance as a matter of law, the District Court was not required to issue a
scheduling order or receive an estate inventory before making that legal determination.
¶38 For these reasons, the judgment of the District Court is affirmed.
/S/ TERRY N. TRIEWEILER
We Concur:
/S/ KARLA M. GRAY
/S/ JIM REGNIER
/S/ JAMES C. NELSON
/S/ JIM RICE
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