No. 86-184
I N THE SUPREME COURT OF THE STATE OF MONTANA
1986
THOMAS L . TOPE and ANNA T O P E ,
P l a i n t i f f s an.d A p p e l l a n t s ,
-VS-
L I L L I A N RUTH TAYLOR,
D e f e n d a n t and R e s p o n d e n t .
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 C h o u t e a u ,
T h e H o n o r a b l e C h a n E t t i e n , Judge p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
Emmons & C o d e r ; R o b e r t L. Emmons, G r e a t F a l l s ,
Montana
F o r Respondent:
Hoyt & Blewett; Alexander Rlewett, 111, G r e a t F a l l s ,
Montana.
S u b m i t t e d on B r i e f s : A.ugust 21, 1986
Decided: November 20, 1986
Filed:
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Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
On March 25, 1986, final judgment was entered in the
District Court of the Twelfth Judicial District, County of
Choteau, granting defendant, Lillian Ruth Taylor's motion for
summary judgment. Thomas L . Tope and Anna Tope appeal. We
reverse the judgment and remand this cause because material
issues of fact exist.
On May 24, 1974, Leslie Taylor drew his last will and
testament in the law offices of Hauge, Hauge, Ober and
Spangelo in Havre, Montana. Lester Hauge, attorney, retained
a copy. By his will, Leslie Taylor gave 240 acres to Rodney
Fraser, $10,000 to his sister, Lillian Taylor, and the
remainder of his estate, later valued at $506,000, to Tom and
Anna Tope, in equal shares. Tom Tope and Anna Tope were
named as executor and alternative executrix, respectively.
It is undisputed that Lillian, Anna and Tom were each aware
of the will. This dispute arises because the original will
was not produced after Leslie died.
Two or three weeks after Leslie's death, Lillian, Anna
and Tom met at Lillian's home to discuss the handling of
Leslie's affairs. The depositions of the parties presented
the trial judge with a wide array of facts respecting that
meeting. For purposes of a summary judgment motion, we view
the facts in the light most favorable to the party opposing
the motion. Further, the party opposing the motion is
"afforded the benefit of all reasonable inferences which may
be drawn from the offered proof." Reaves v. Reinbold (Mont.
1980), 615 P.2d 896, 898, 37 St.Rep. 1500, 1502.
The trial judge ostensibly followed this rule of law by
adopting Anna's version of the facts. However, we find
signieicant discrepancies between Anna's "facts" and the
"facts" as presented by Tom Tope. Tom's facts and the
reasonable inferences therefrom are at times more beneficial
to plaintiffs' position than are Anna's. We therefore adopt
the proof most beneficial to plaintiffs, regardless its
source.
In his deposition, Tom stated that Leslie Taylor brought
his will to Tom's house and showed it to Tom the same day it
was executed. Although various conversations were
subsequently had between Tom and Leslie with respect to
treatment of ranch assets upon Leslie's death, the two had no
other conversations specifically about the will. Leslie
never indicated to Tom that he had changed his original will.
Tom, as well as Anna, believed that had Leslie changed his
will, Leslie would have so informed them.
At the time of Leslie's death, Tom did not think the
will itself had been changed. As confirmation of Tom's
beliefs, Lester Hauge informed Tom upon Leslie Taylor's death
that Tom was heir to practically everything and executor of
Leslie's estate. The attorney's copy of Leslie's will dated
May 24, 1974, was in existence at the time of Leslie's death
and had not been altered.
Regarding Tom's and Anna's conversation with Lillian two
to three weeks following Leslie's death, Tom stated Lillian
told him "there had been some changes," but did not specify
"changes in what." Tom assumed the changes were due to the
recent sale of grazing land, but he did not know precisely to
what she was referring.
Tom assumed Lillian possessed Leslie's will because she
had his other personal items. Lillian never specifically
told Tom or Anna that she had the will. Anna stated that
Lillian offered to let Tom and her read the will, but that
they declined. Tom did not recall that conversation.
Lillian later claimed Leslie burned his will immediately
prior to entering the hospital for the last time. There was
no corroboration for Lillian's testimony that her brother
either changed or burned the will.
Finally, both Tom and Anna agree that at the meeting
shortly after Leslie's death, Lillian promised that she would
do the best she could to carry out Leslie's wishes. Tom
assumed that Leslie's will and Leslie's wishes were one and
the same. By inference then, Tom assumed that he would
receive the majority of Leslie's estate whether or not the
will was produced.
The will was never produced. Lillian petitioned for
letters of administration of intestacy and requested
distribution of the estate to herself as sole lawful heir.
She was appointed personal representative of the estate.
Under the decree of final distribution entered in March of
1976, Lillian received the entire estate, with appraised
assets of over $500,000.
Between 1976 and 1982, Lillian paid or gave to the Topes
assets from the estate and cash totalling over $250,000. Two
of those presentments required the signing of promissory
notes by the Topes in favor of Lillian, the validity of which
is now questioned.
In October of 1982, when the recently divorced Topes
were facing financial disaster, Lillian told Anna that she
was going to "start from the ground up" with respect to
distribution of the estate to them. Upon learning of
Lillian's statement, Tom decided to probate Leslie's will in
an effort to obtain what Tom believed was rightfully his.
This Court, in In the Matter of the Estate of Taylor (Mont.
1984), 675 P.2d 944, 41 St.Rep. 34, held that Tom's petition
to probate the will was barred by the applicable three-year
statute of limitations. See S 72-3-122, MCA. However, we
further stated that Tom could proceed through "any other
remedy available to him." Estate of Taylor, 675 P.2d at 947,
7
41 St.Rep. at 38.
Tom filed his original complaint in this action on March
24, 1984. An amended complaint was served in July of 1984,
with Anna joined as a plaintiff. The Topes plead several
theories of recovery, including fraud, constructive fraud,
laches and estoppel. They seek to recover Leslie's entire
estate, punitive damages from Lillian, cancellation of the
promissory notes they had executed in favor of Lillian and
attorney ' s fees. Upon consideration of all the evidence
before him, including the depositions of Anna, Tom and
Lillian, the trial judge determined no genuine issue of
material fact existed and granted summary judgment to 1,illian
reeon each of the theories raised by the Topes.
On appeal, the Topes raise numerous issues. Because
reversal of the summary judgment requires reversal of the
trial judge on only one of the theories presented by the
Topes, we find two issues to be dispositive.
1. Does a genuine issue of material fact exist?
2. Has a case for promissory estoppel been made?
Two genuine issues of material fact were decided by the
trial judge. First, the judge found that Leslie Taylor made
long-hand changes in his will of May 24, 1974. The only
evidence in support of this determination is Lillian's
statement that the will had been changed. In response, Tom
and Anna both stated they believed that if Leslie had changed
his will, they would have been told. The Topes both denied.
being told of any changes.
Lillian, as the party moving for summary judgment, has
the burden of proving the absence of an issue of fact as to
whether changes were made in the will. Bonawitz v. Bourke
(1977), 173 Mont. 179, 182, 576 P.2d 32, 34. The standard
required of the movant is strict:
To satisfy his burden the movant must make a
showing that is quite clear what the truth is, and
that excludes any real doubt as to the existence of
any genuine issue of material fact.
Kober v. Stewart (1966), 148 Mont. 117, 122, 417 P.2d 476,
478, citing 6 Moores Federal Practice 2d, S 56.15[3], at 2335
(2d ed. 1986).
In Reaves, supra, defendant submitted an affidavit, a
letter written by plaintiff and an admission by plaintiff
concerning facts which would support a finding that an oral
contract existed. Plaintiff countered with a denial that a
contract ever existed. We held that defendant had not met
his burden of proof. Likewise, the self-serving statement of
Lillian with respect to the changes in the will is
insufficient to meet the burden of proof imposed upon her.
Nor does it clearly indicate the truth.
That a fact-finder should be provided the opportunity to
determine whether Leslie Taylor altered his will becomes even
more apparent in light of Lillian's statements that Leslie
burned his will prior to entering the hospital for the last
time. The trial judge assumed the will to be in existence at
the time of Leslie's death. If a fact-finder were to
determine the will was not destroyed, aspersions would be
cast upon Lillian's credibility, thus undermining her claim
that the will had been altered.
The second genuine issue of material fact is what
agreement, if any, was reached by the parties at the meeting
at Lillian's house shortly after Leslie's death. The parties
all agree that Lillian stated she would abide by Leslie's
wishes to the best of her ability. But, what did the parties
understand Leslie's wishes to be?
There is of course an argument that Lillian's statement
is "void for vagueness." The test is:
It is an elementary rule of law that, to constitute
an enforceable contract, the agreement of the
parties to it must be sufficiently certain and
explicit that their full intention may be
ascertained to a reasonable degree of certainty.
(Citaion omitted.)
"If an agreement be so vague and indefinite that it
is not possible to collect from it the full
intention of the parties, it is void; for neither
the court nor the jury can make an agreement for
the parties." Price v. Stipek, 39 Mont. 426, 104
Pac. 195.
Schwab v. McVey (1918), 54 Mont. 422, 425, 171 Pac, 277, 278.
However, if it is found that the will was not changed or
destroyed, the exact terms of the promise from Lillian to
Topes is capable of being ascertained because all parties may
have understood the testator's wishes to be those expressed
in the will.
Pursuant to S 72-3-301(1) (c), MCA, Tom could have,
within three years, submitted the lawyer's copy of Leslie's
will for probate.
... A petition for formal probate of a will:
(c) states whether the original of the last will
of the decedent is in the possession of the court
or accompanies the petition. If the original will
is neither in the possession of the court nor
accompanies the petition and no authenticated copy
of a will probated in another jurisdiction
accompanies the petition, the petition also must
state the contents of the will and indicate that it
is lost, destroyed, or otherwise unavailable.
On the basis of Lillian's promise to abide by Leslie's
wishes if Tom did not probate the will, Tom did not offer
the will for probate. The will, if not changed, named Tom as
the primary beneficiary. Tom therefore gave up substantial
potential rights on the basis of Lillian's promise. The
doctrine of promissory estoppel is thus invoked.
This Court has defined the elements of promissory
estoppel as:
(1) a promise clear and unambiguous in its terms;
(2) reliance on the promise by the party to whom
the promise is made; (3) reasonableness and
foreseeability of the reliance; (4) the party
asserting the reliance must be injured by the
reliance. (Citations ommitted.)
Keil v. Glacier Park, Inc. (1980), 188 Mont. 455, 462, 614
Lillian's promise to Topes might be construed to be that
Lillian would follow Leslie's wishes as expressed in his
will, giving the bulk of the estate to Topes. It might be
proven that the Topes relied on this promise because they in
fact did not attempt to timely probate the will. Such
reliance was arguably not only reasonable and foreseeable to
Lillian, but expected. Since the Topes have not received the
estate given them in the will, they would be injured by their
supposed reliance.
Furthermore, the promissory estoppel claim may not be
barred by laches. Tom testified he did not become aware of
his possible injury until October of 1982, when he was told
Lillian was going to "start from the ground up" with respect
to his disbursements from the estate. His complaint was
filed 17 months later. Under these facts, the doctrine of
laches could not be invoked. Brabender v. Kit Mfg. Co.
(1977), 174 Mont. 63, 568 P. 2d 547. The Topes are entitled
to go forward with their case.
We do not foreclose other theories of recovery for
Topes. That will depend upon the record developed at trial.
We only hold that under the facts already developed, a case
premised upon promissory estoppel requires reversal of
summary judgment.
Lillian was also granted summary judgment with respect
to Anna's and Tom's requests that the promissory notes not be
repaid and that attorney's fees be awarded the Topes. The
evidence is in conflict as to whether the Topes were to repay
the notes. Attorney's fees are properly left to the
discretion of the trial judge. We therefore vacate the
summary judgment in its entirety and remand for further
proceedings in conformance with
We concur: