No. 92-406 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

LOUISE M. CASHMORE, Deceased. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Dorothy McCarter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

C.W. Leaphart, Jr. W. William Leaphart, Leaphart Law 

Firm, Helena, Montana 

For Dr. Robert Cashmore: 

Don A. LaBar, Church, Harris, Johnson & Williams, 

Great Falls, Montana 

For Personal Representative for the Cashmore Estate: 

James T. Harrison, Jr., Harrison, Loendorf & Poston, 

Helena, Montana 

Filed: 

Submitted on Briefs: November 12, 1992 

~~~i,-~~d: February 25, 1993 
~ustice Fred J. Weber delivered the Opinion of the Court. 

Sarah Herold-Breidenbach, a daughter and beneficiary of the 

estate of Louise M. Cashmore, appeals an order of the District 

Court of the First Judicial District, Helena, Montana, dated June 

12, 1992. The District Court there determined that Ms. Breidenbach 

was not entitled to the sums in four checking accounts which had 

already been distributed because she did not object to the 

distribution within the statutory time limit. We affirm. 

Louise Cashmore died on January 6, 1991. She had three 

children, Robert W. Cashmore, Sarah Herold-Breidenbach, and Lynn 

Secrest-Grantham, who were the chief beneficiaries of her estate. 

The Inventory and Appraisement of her estate reflected a total of 

$179,453.15. On August 12, 1991, the personal representative 

mailed each heir an accounting and a proposed partial distribution 

of the estate. Such distribution divided $150,000 equally between 

the three children. No objection was made by any beneficiary, and 

Ms. Breidenbach herself wrote the checks to distribute the money. 

After this distribution, a dispute arose concerning the 

remaining amount of money and certain personal belongings of Louise 

Cashmore. Under contention was the possible bequest of a Shorty 

Shope painting valued at $5,000 to Robert Cashmore. Cashmore 

petitioned the court for resolution of the matter and a hearing was 

held on October 18, 1991. On December 20, 1991, the District Court 

entered an order determining the estate did not own the Shope 

painting, but that it was owned by Robert Cashmore. 
On February 25, 1992, the personal representative petitioned 

the District Court to require all beneficiaries to file any claims 

they had against the estate because the dissention had made further 

administration impossible. Breidenbach claimed she was a joint 

tenant with rights of survivorship in four checking accounts 

belonging to her mother. The money in these four accounts had 

already been distributed as part of the estate. She also claimed 

a diamond ring, and now claims that an insurance check sent to her 

brother should have one half distributed to the estate. 

On June 12, 1992, the District Court issued an order quoting 

g 72-3-903, MCA, of the Probate Code. That section provides in 

part: 

(2) The right of any distributee to object to the 

proposed distribution on the basis of the kind or value 

of asset he is to receive, if not waived earlier in 

writing, terminates if he fails to object in writing 

received by the personal representative within 30 days 

after mailing or delivery of the proposal. 

The court determined that no beneficiary objected to the proposed 

distribution of the estate within thirty days and none can object 

now. Further, the personal representative was directed to sell the 

diamond ring and distribute the money equally if the beneficiaries 

could not agree on ownership. 

Section 72-3-903, MCA, is clear. Because Ms. Breidenbach did 

not object within the allotted time, she must accept the 

distribution of her mother's estate, including the prior 

distribution of the checking accounts to which she was a joint 

tenant. We affirm the holding of the District Court that Ms. 
Breidenbach was barred from claiming the four checking accounts 

under 5 72-3-903, MCA. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1988 Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by its filing as a public document 

with the Clerk of this Court and by a report of its result to the 

West Publishing Company. 

Affirmed . 

Justices 
Justice Terry N. Trieweiler specially concurring. 

I concur with the result of the majority opinion, however, not 

for the reasons stated therein. 

Section 72-3-903 (2) , MCA, requires that distributees of an 

estate register objections within 30 days if their objections are 

based on "the kind or value of asset [they are] to receive . . . . It 

In this case, Sarah Herold-Breidenbach had no objection to the kind 

or value of assets she was to receive. Her objection was that 

savings accounts held by her in joint tenancy with her deceased 

mother should never have been included in the estate in the first 

place. Therefore, I conclude that the statute relied upon by the 

majority is not applicable to the facts of this case. 

However, it is clear to me that Sarah waived any right she may 

have had to the joint accounts by her own conduct. Waiver "is the 

voluntary and intentional relinquishment of a known right, claim, 

or privilege." 28 Am. Jur. 2d Estoppeland Waiver § 155 at 836 (1966). 

In this case, the proposed inventory and appraisement was filed on 

July 9, 1991. It was clear from the inventory that the joint 

accounts were included in the estate. On August 12, 1991, with 

full knowledge that the distribution included those amounts 

included in the accounts that she now claims, Sarah signed the 

checks which were issued as the cash distribution of the estate. 

By actually participating in the distribution of the four joint 

accounts, Sarah waived any further claim to those accounts. 

Although not discussed in the majority opinion, I would also 

affirm payment of the proceeds from the State Farm Fire and 

5 
Casualty Company hail damage coverage to Robert W. Cashmore for the 

reason that he was a named insured under that policy and was owner 

of the insurable interest covered by the policy. 
February 25, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

C. W. Leaphart, Jr. 

The Leaphart Law Firm 

1 North Last Chance Gulch, #6 

Helena, MT 59601 

Don A. LaBar 

Church, Harris, Johnson & Williams 

P. 0. Box 1645 

Great Falls, MT 59403 

Lynn Secrest-Grantham 

Attorney at Law 

4403 Shasta Way 

Klamath Falls, OR 97603 

James T. Harrison, Jr. 

Attorney at Law 

2225 11th Ave., Suite 21 

Helena, MT 59601 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA I 

BY: