Matter of Estate of Lawson

No. 85-611
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986

IN THE MATTER OF THE ESTATE OF
JAMES C. LAWSON, Deceased.

APPEAL FROM: District Court of the Seventh Judicial District,
In and for the County of Richland,
The Honorable H. R. Obert, Judge presiding.

COUNSEL OF RECORD:

For Appellant:
T. R. Halvorson, Sidney, Montana

For Respondent:
Torger S. Oaas, Lewistown, Montana

Submitted on Briefs: May 9, 1986
Decided: July 17, 1986

JUL . 1985.
Filed:

Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

The estate of James C. Lawson appeals from the Findings
of Fact, Conclusions of Law and Order of the District Court
of the Seventh Judicial District, Richland County which
ordered the estate to pay a homestead allowance of $20,000
and a family allowance of $500 per month to Karen Lawson. We
affirm.
James Lawson died on January 3, 1985. The estate has
stipulated and Karen Lawson testified that she was James
Lawson's common-law spouse. Both parties were living in
Montana at the time of his death. They had no children of
the marriage.
James Lawson left a will which was informally probated
in Richland County. Pursuant to his will, his niece Merrie
Gangstad was appointed personal representative.
Karen Lawson was at that time living on their ranch in
Richland County. When James died, Karen received
approximately $150,000 in cash and certificates of deposit
that had been held in joint tenancy. She used the money to
buy a ranch in Joliet. When she left the Richland property,
she allegedly took several household and ranch items which
she claimed were hers, her fathers, or gifts.
Karen Lawson as surviving spouse filed a petition for
homestead, exempt property, and family allowances. She also
filed a petition seeking to have herself declared as sole
owner of the property she had removed from the ranch.
After a hearing on petition, the District Court entered
findings of fact, conclusions of law and an order which
awarded $20,000 for the homestead allowance, a family
allowance of $500 per month as of January 3, 1985 and an
exempt property allowance of $3,500. The District Court
deferred the selection of the items of exempt property until
all issues in the case are settled. The District Court
stated:
The homestead allowance and family allowance of
Karen Lawson should not be offset by any of the
claims of the estate against Karen Lawson. The
estate has failed to show that it would be
irreparably harmed in the event that the allowances
were granted to the widow prior to the disposition
of the other issues in later legal proceedings.
The estate has further failed to show any legal
right to an offset. This question is reserved.
As a first issue, the estate of James Lawson contends
the defenses of setoff, satisfaction, payment and abandonment
should be available against statutory claims of homestead,
family, and exempt property allowances.
The homestead, exempt property, and family allowances
are allowed by 5 5 72-2-801, 802, and 803, MCA, respectively.
Section 72-2-801, MCA, states:
A surviving spouse of a decedent who was domiciled
in this state is entitled to a homestead allowance
of $20,000. ... 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.
Section 72-2-802, MCA, states:
In addition to the homestead allowance, the
surviving spouse of a decedent who was domiciled in
this state is entitled from the estate to value not
exceeding $3,500 in excess of any security
interests therein in household furniture,
automobiles, furnishings, appliances, and personal
effects.. .. These rights are in addition to any
benefit or share passing to the surviving spouse or
children by the will of the decedent unless
otherwise provided, by intestate succession, or by
way of elective share.
Section 72-2-803, MCA, states:
 In addition to the right to homestead allowance and
exempt property, if the decedent was domiciled in
this state, the surviving spouse and minor children
whom the decedent was obligated to support and
children who were in fact being supported by him
are entitled to a reasonable allowance in money out
of the estate for their maintenance during the
period of administration, which allowance may not
continue for longer than 1 year if the estate is
inadequate to discharge allowed claims. The
allowance may be paid as a lump sum or in periodic
installments.

The family allowance is exempt from and has
priority over all claims but not over the homestead
allowance.
The family allowance is not chargeable against any
benefit or share passing to the surviving spouse or
children by the will of the decedent unless
otherwise provided, by intestate succession, or by
way of elective share.
The death of any person entitled to family
allowance terminates his right to allowances not
yet paid.
The purpose of the allowances is to ensure that a
surviving spouse is not left penniless and abandoned by the
death of a spouse. The allowances are not designed to
support the family until they share in the estate, but
irrespective of whether they do or do not share. 31
Am.Jur.2d Executors and Administrators 5 324. The allowances
are payable out of the assets of estate and are not charged
against the widow's share. Section 72-2-803, MCA. Because
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.
Matter of Estate of Dunlap (1982), 199 Mont. 488, 649 ~ . 2 d
1303; Matter of Estate of Merkel (Mont. 1980) , 618 P.2d 872,

The second issue raised by appellant is whether
irreparable harm is a prerequisite to defenses of setoff,
satisfaction, and payment. This issue has been rendered moot
by our decision on the first issue.
Third, the estate accuses the District Court of using
the unresolved issues presented by the amended petition and
amended counterpetition as a basis for ruling against the
estate while refusing to do anything to make the issues ready
for trial. The estate claims prejudice because of the
dilatory handling of the estate by the court.
The District Court correctly refused to determine if the
estate was legally entitled to a set-off until after the
ownership of the property had been determined, and the
property had been valued by an appraiser. The record shows
that the estate itself has not attempted to resolve the
issues in this case in an expeditious manner.
The fourth issue raised by appellants is whether the
estate was denied a fair hearing by what it terms as repeated
errors in setting the petition for hearing. The estate
complains that it was not given a 14 day notice of the
hearing on the petition for allowances as required by §

72-1-301, MCA. The hearing was rescheduled by the parties or
the District Court six times before the hearing was held,
largely due to an extremely busy District Court schedule.
Appellant claims that some of these notices were illegally
short. However, the record shows the appellant did not
object to the notices or request continuances at the District
Court level and it raises the issue for the first time on
appeal. This Court will not review issues raised for the
first time on appeal. In re Marriage of Glass (Mont. 1985) ,
697 P.2d 976, 42 St.Rep. 328; Morse v. Cremer (1982), 200
Mont. 71, 647 P.2d 358.
 Last, appellant takes issue with this finding of the
District Court:
There was testimony concerning the assets taken and
allegedly taken from the estate by Karen Lawson.
Inasmuch as all of the evidence was selfserving and
not from an impartial expert witness, the Court
will reserve ruling on the question of entitlement
to an offset as to any offset (sic) until
conclusion of the case.
Appellant contends a self-serving declaration is a
statement made out of court that is favorable to the
interests of the declarant, but does not include testimony of
a witness in court. The estate contends the judge ignored
the estate's proof which consisted of cross examination of
Karen Lawson as to the value of the assets on the Lawson
property. The estate contends the District Court acted
arbitrarily and capriciously and moved to disqualify the
presiding judge for cause.
A reading of the findings of fact shows that the
District Court judge refused to rule on the value of personal
property in the estate because no testimony from an impartial
expert witness had been presented. The only testimony
presented was that of Karen Lawson which was indeed self
serving. The District Court acted properly on the issues
before it, and appellant's allegations of prejudice are
baseless.
The findings of fact, conclusions of law and order of
the District Court are affirmed.

We Concur: