No. 83-262
IN THE SUPREFE COURT OF THE STATE OF MONTANA
1983
I N THE MATTER OF THE ESTATE OF
L E S L I E J . TAYLOR, a / k / a L E S TAYLOR,
Deceased.
APPEAL FROM: D i s t r i c t C o u r t of t h e E i g h t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of ~hbkceau,
T h e H o n o r a b l e John M. M c C a r v e l , J u d g e p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
R o b e r t J . Emmons a r g u e d f o r T h o m a s & A n n a T o p e ,
G r e a t F a l l s , Montana
F o r Respondent:
J a r d i n e , S t e p h e n s o n , B l e w e t t & Weaver; A l e x a n d e r
B l e w e t t I11 a r g u e d f o r L i l l i a n T a y l o r , G r e a t F a l l s ,
Montana
Submitted: December 5, 1 9 8 3
Decided: J a n u a r y 5, 1984
Filed:
c
:
. !$ ,? * '984
Clerk
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
The alleged residuary leqatee and devisee under a
purported will appeals dismissal of his petition to probate
the will. We affirm the dismissal.
In May 1974 Leslie Taylor executed his will. The will
left $10,000 to his sister Lillian Taylor, respondent herein;
approximately 240 acres of land to his friend Rodney Fraser;
and the remainder of his estate to his friends, Tom Tope and
Anna Tope, husband a.nd wife, in equal shares. Tom Tope was
named executor. The estate was later appraised at over
one-half million dollars.
In March 1975 Leslie Taylor died. In April 1975
Lillian filed a petition for letters of administration alleg-
in.g that Leslie had died intestate. Lillian was appointed
personal representative. The inventory and appraisal of the
estate showed assets of $502,567.29. In March 1976, the
fina.1 decree of distribution was entered d-istributing the
entire estate to Lillian, Taylor's only heir under intestate
laws of succession.
Thereafter, Lillian deeded the 240 acres to Rodney
Fraser and paid the Topes $200,000 between 1978 and 1982.
In November 1982 Tom Tope filed his petition to probate
Leslie Taylor's will. In substance, he alleged that under
the terms of Taylor's will, he and his wife were entitled to
the entire estate except for $10,000 to Lillian and 240 acres
to Rodney Fraser. Tope alleged that after execution of the
will, Leslie Taylor told Tope that he had explained its terms
to Lillian and Lillian had agreed to the terms. Tope further
alleged that after Taylor's death, Lillian informed the Topes
that Taylor had made some minor changes in his will and that
she would abide by the will as best she could.
Finally, Tope alleged that Lillian led him and his wife
to believe that they would receive the assets provided for
them in the will even though the will was not probated. Tope
alleged that in 1982 Lillian indicated to him that he might
not receive any more of the assets provided in the will which
led him to file the petition for probate over seven and
one-half years after Leslie Taylor's death.
After the petition for probate was filed, the District
Court ordered Lillian to produce the will. She did not
produce it, apparently claiming that Leslie had burned it
prior to his death.
Lillian filed a motion to dismiss Tope's petition to
probate the will contending that probate was barred by the
three-year statute of limitations in the probate code (sec-
tion 72-3-122, MCA).
The District Court entered findings of fact, conclu-
sions of law and its order dismissing Tope's petition for
probate of the will. The same was entered solely on the
pleadings without consideration of the depositions, any
evidentiary hearings, or a motion for summary judgment. In
sum, the District Court found that the pleadings "alleged
facts setting forth estoppel as to the limitations statute"
hut that the the three-year statute of limitations in the
probate code created a final presumption of intestacy barring
a petition for probate filed over seven and one-half years
after Taylor's death. Section 72-3-122, MCA.
The fundamental issue on appeal can be stated in this
language :
Does the three-year limitation on filing a petition to
probate a will bar a later filing based on equitable estop-
pel? We answer "yes," leaving petitioner to his remedy
aga.inst the individual whose words and conduct allegedly
damaged him.
The statute of limitations for probating wills is set
forth in Montana's probate code which we quote in pertinent
part :
"Time limit - probate, testacy, -
on and
a.ppointment proceedings -- exceptions.
(1) No iGorma1 probate or amointment
proceeding or formal testacy oGLappoint-
ment proceeding, other than a proceeding
to probate a will previously probated at
the testator's domicile and appointment
proceedings relating to an estate in
which there has been a prior appointment,
may be commenced more than 3 years after
the decedent's death, except:
"(a) if a previous proceeding was dis-
missed because of doubt about the fact of
the decedent's death, appropriate pro-
bate, appointment, or testacy proceedings
may be maintained at any time thereafter
upon a finding that the dececent's death
occurred prior to the initiation of the
previous proceeding and the applicant or
petitioner has not delayed. unduly in
initiating the subsequent proceeding;
"(b) appropriate probate, appointment, or
testacy proceedings may be maintianed in
relation to the estate of an absent,
disappeared, or missing person for whose
estate a conservator has been appointed
at any time within 3 years after the
conservator becomes able to establish the
death of the protected person; and
" (c) a proceeding to contest an informal--
1-y probated will and to secure appoint-
ment of the person with legal priority
for appointment in the event the contest
is successful may be commenced within the
later of 12 months from the informal
probate or 3 years from the decedent's
death." Section 72-3-122, MCA.
The statute is clear and unambiguous. None of the
exceptions to the three-year time limit on commencing a
proceeding to probate a will apply to this case. The statute
provides no exception to the three-year limitation for delay
allegedly caused by misrepresentations of another party
involved in the estate nor does it estop that party from
asserting the statutory bar.
The statute is taken directly from the Uniform Probate
Code, Section 3-108. It establishes a basic limitation of
three years for determination of whether a decedent left a
will, to commence proceedings to prove the same, and to
commence proceedings to administer the estate thereunder.
The Comment to this provision of the statute states in part:
"If no will is probated within three
years from death, the section has the
effect of making the assumption of intes-
tacy final. . ."
.
The District Court correctly so held.
The purpose and rationale behind this three-year time
limitation is clea.rly discernable from the statement of
purposes underlying Monta.nalsUniform Probate Code:
" (2) The underlying purposes and policies
of this code are to:
" (c) promote a speedy and efficient
system for liquidating the estate of the
decedent and making distribution to its
S U C C ~ ~ S O ~ ~ .Section 72-1-102 (2) (c),
"
MCA .
Montana's Uniform Probate Code establishes a strong
public policy to administer estates of decedents expeditious-
lv and wi.thout unreasonable delay. Such public policy would
be rendered meaningless and illusory if personal agreements
and disputes between persons involved in estate administra-
tion could be litigated by raising estoppel as a bar to time
lj-mitations in the probate code many years later. If such
were permissible, there would be no finality t.o adminstration
and distribution of estates. The rights of third person
distributees of estate assets could be affected or compro-
mised many years later.
The framers of the Uniform Probate Code and the Montana
legislature were not insensitive to situations involving
fraud in connection with the administration of estates. A
Montana statute provides in pertinent part:
"Remedies for fraud -- statute - limits-
of
tions . (1) Whenever fraud has been
perpetrated in connection with any pro-
ceeding or in any statement filed under
this code or if fraud is used to avoid or
circumvent the provisions or purposes of
this code, any person injured thereby may
obtain appropriate relief including
restitution against the perpetrator of
the fraud or any person benefiting from
the fraud, whether innocent or not (other
than a bona fide purchaser for value and
without notice)." Section 72-1-111 (I),
MCA .
Only by construing the language "appropriate relief including
restitution against the perpetrator" to mean individual
relief against the perpetrator by claims for relief outside
the Uniform Probate Code can the foregoing statute be harmo-
nized with the purposes and policy underlying the Code as
expressed in section 72-1-102 (2)(c), MCA, heretofore quoted.
Decisions from other jurisdictions support the view
that oral agreements between beneficiaries of estates do not
bar time limitations for filing applications to probate
wills. The Texas Court of Civil Appeals has so held on
public policy grounds. Brown T r . Byrd (Tex.Civ.App. 1974) ,
512 S.W. 2d 753. The Missouri Supreme Court so held, ruling
that the primary purpose of a special statute of limitations
on filing a petition for probate was to quiet estates and
avoid late litigation. State ex rel. Bier v. Bigger (1944),
352 No. 502, 178 S.W.2d 347. In accord: In re Estate of
Politte (M0.~1970), 460 S.W.2d 733.
App
Tope argues that equitable estoppel to bar the
three-year statute of limitations on filing a petition for
probate is an available remedy, citing numerous authority
from Montana. and elsewhere in support. Section 26-1-601 1 3 ) ,
MCA; section 1-3-208, MCA; Thompson v. Nebraska Mobile Homes
Corp. (Mont. 1982), 647 P.2d 334, 39 St.Rep. 1094; Fraunhofer
V. Price (1979), 182 Mont. 7, 534 P.2d 324; LaForest v -
SW
Texaco, Inc. (1978), 179 Mont. 42, 585 ~ . 2 d1318; Keneco and
Kenik v. Cantrell (1977), 174 Mont. 130, 568 ~ . 2 d 1225;
Howeth v. D. A. Davidson Co. (1973), 163 Mont. 355, 517 P.2d
722; La.pke v . Hunt (1968), 151 Mont. 450, 443 P.2d 493; Hiqby
v. Hooper (1950), 124 Mont. 331, 221 P.2d 1043; ~indblomv.
Employers Assurance Corporation (1930), 88 Mont. 488, 295 P.
1003 and cases cited therein; Schroeder v. Young (1896), 161
U.S. 334, 16 S.Ct. 512, 40 L.Ed.721; Ca.rruth v. Fritch (Cal.
1951), 224 P.2d 702, 24 ALR2d 1404, 1414 and authorities
cited therein; State v. Hart Motor Express i inn. 1964) , 132
N.W.2d 391; 43 ALR 3d 435 and cited references therein; 51
Am.Jur.2d Limitations - Actions, $ S 431, 433 and. 436.
of
We decline to apply these cited authorities to uphold
Tope's claim that equitable estoppel bars application of the
three-year statute of limitations in Montana's probate code.
These authorities either involve general statutes of limita-
tions unlike the special statute of limitations in the pro-
bate code or cases in which the plaintiff or petitioner have
no effective remedy other than equitable estoppel available
to him, unlike the instant case. Here, we are simply leaving
Tope to his remedies against Lillian by way of an action
based on misrepresentation, constructive trust, breach of
contract, fraud or any other remedy available to him. In so
doing, we uphold the three-year statute of limitations in the
probate code and carry out its stated purpose and policy of
promoting a speedy and efficient system for liquidating and
distributing the estate. Section 72-1-102(2) (c), MCA.
Appellant also argues that equitable estoppel barring
assertion of the three-year time limitation on proceedings to
probate a will is a jury issue and the District Court was in
error in ruling it inapplicable as a matter of law. Mot so.
We agree that Tope has the burden of proving facts to support
application of the legal principle of equitable estoppel and
that such proof creates a jury issue. However, the District
Court here ruled as a matter of law that the facts plead by
Tope created an equitable estoppel, but that nonetheless the
three-year statute of limitations barred Tope's petition as a
matter of law. We concur.
Tope further contends that equitable estoppel bars the
three-year time limitation on a petition to probate a will
because the principles of law and equity supplement the
provisions of the probate code, citing section 72-1-104, MCA.
However, such principles do not supersede provisions of the
probate code where the stated purpose and policy is to pro-
mote a speedy, efficient system for liquidating and distrib-
uting estates. It is difficult to see just how the filing of
a petition for probate some seven and one-half years after
intestate administration of the estate was commenced and some
six and one-half years after the final decree of distribution
of the estate property was entered promotes this purpose or
just how law and equity favor one who has remained silent for
years relying on an alleged verbal agreement with another
beneficiary. What principles of law and equity require
allowing this attempt several years later to reopen an estate
rather than requiring Tope to seek his remedy against Lillian
personally? None of which we are aware.
Finally, appellant argues that Montana's Uniform Pro-
bate Code prohibits impairment of any accrued right he had
prior to July 1, 1975, the effective date of the Code, citing
section 7 2 - 1 - S , MCA. This issue was never raised in the
I 07
District Court or i n any brief on appeal.
. It was first
raised during oral argument on appeal. We will not consider
an issue raised for the first time on appeal. Johnson v.
Johnson (1977), 172 Mont. 94, 560 P.2d 1331; Bull Creek Oil
and Gas Development v. Bethex (1953), 127 Mont. 222, 258 P.2d
960; Mitchell v. Garfield County (1949), 123 Mont. 115, 208
P.2d 497. We note in passing that the accrued right that Tope
had on July 1, 1975, was the right to offer the purported
will for probate and under the prior probate code in effect
until that date the decree of distribution ". . . is conclu-
sive as to the rights of heirs, legatees, or devisees, sub-
ject only to be reversed, set aside, or modified on appeal."
Section 91-3902, R.C.M. 1947.
We have considered all other contentions, argumen.ts and
authorities raised by the parties, consider that none require
further comment in this opinion, and find that none would
a-lterour ruling herein.
In sum, we hold as a matter of law that equitable
estoppel will not permit the filing of a petition to probate
a will in contravention of the three-year time limit in
section 72-3-122, MCA.
Affirmed.
3J--4.ap &d
Chief Justice
We concur: