No. 12189 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

C. P. HEIDLEBAUGH, JR., 

Plaintiff and Appellant, 

DANIEL J. KORN et ale, 

Defendants and Respondents. 

Appeal from: District Court of the Eighth Judicial District, 

Honorable Paul G. Hatfield, Judge presiding. 

Counsel of Record: 

For Appellant: 

Graybill, Graybill, Ostrem and Warner, Great Falls, 

Montana . John V. Barron argued, Great Falls, Montana. 

For Respondents: 

At u&- 

G+t Sc %, midt &'~ilbert & Jungers, Fort Benton, Montana. 

Korn, Warden, Walterskirchen and Chxistiansen, 

Kalispell, Montana. 

Gary R. Christiansen am, Kalispell, Montana. 

Roglien, Hash and ~'Brien, Kalispell, Montana. 

Submitted: April 17, 1972 

Filed: 3, $ 197i 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an action under the Montana Uniform Declaratory 

Judgments Act, sections 93-8901 through 93-8916, R.C.M. 1947, 

seeking to adjudge the rights of parties under a farm lease. 

Motions for summary judgment were filed by all parties to the 

action and on October 7, 1971, the district court of the eighth 

judicial district, county of Chouteau, Judge Paul G. Hatfield 

presiding, entered judgment in favor of the defendant Daniel J. 

Korn, executor of the estate of Thomas F. Wainwright, deceased, 

In July 1966, a farm lease was entered into by Thomas F. 

Wainwright as lessor and C. P. Heidlebaugh, Jr. as lessee, for 

land in Chouteau County. By the terms of the lease the expiration date was November 1, 1969, unless sooner terminated as 

provided for in the lease. The lease contained the following 

clause: 

"* * * that second party is hereby given an option 

to meet any bid that may be made for said land, in 

the event said land shall be offered for sale during 

the term of this lease. I I 

Plaintiff Heidlebaugh in his deposition admitted that on 

July 28, 1967, Thomas Wainwright attempted to terminate the lease 

by written notice. This was followed by a second written notice 

dated September 4, 1968. On October 1, 1968, the lands in question were leased to Louis V. Bierwagen by Wainwright with the 

full knowledge of Heidlebaugh, who was allowed to harvest the 

crop planted on the land that he had summer fallowed in 1968. 

On November 29, 1968, Thomas F. Wainwright died and his 

will, dated August 31, 1954, was duly probated in Flathead County 

by Daniel J. Korn, as executor. A decree of distribution was 

made and entered on August 11, 1969, wherein the farm lands in 
question here were distributed to Lorraine Wainwright (wife) 

and Donald Jack Wainwright (adopted son), subject to the right 

of Ray M. Wainwright (a natural son) to purchase the farm lands 

at the appraised value fixed in the estate. Ray M. Wainwright 

was one of the devisees under the will of Thomas F. Wainwright. 

At no time during the life of Thomas F. Wainwright or thereafter were the lands in question offered for sale to the public, 

nor were any bids for the purchase thereof ever invited or received by any of the defendants herein. 

Subsequently Ray M. Wainwright exercised his right to 

purchase, pursuant to his father's will. 

Plaintiff alleges he never had an opportunity to meet the 

price paid by Ray M. Wainwright for the lands, even though a 

demand was made for such right. 

The trial judge in his findings of fact, conclusions of law 

and judgment held: (1) That said farming lease was terminated 

by notices on July 28, 1967, and again on September 4, 1968, 

prior to the death of Thomas F. Wainwright; (2) that a subsequent 

lease by Thomas F, Wainwright to Louis V. Bierwagen, dated 

October 1, 1968, effectively terminated the prior lease to C,P. 

Heidlebaugh; (3) that the transfer of the subject property to 

Ray M. Wainwright was a testamentary disposition and not a sale; 

(4) that the failure of C. P. Heidlebaugh, Jr., to protest or 

resist the termination of lease served as a waiver of his rights 

thereunder and that he is thereby estopped to challenge ownership 

in Ray M. Wainwright; and (5) that the notice of termination 

followed by the subsequent lease to Louis V, Bierwagen negated 

any intention to offer the land for sale. 

Although plaintiff-appellant presents four issues on appeal, 

we find the first issue to be controlling: 
"Where property is devised to one heir subject to the 

right of another heir to purchase the same at a stated price, 

does the granting of said right of purchase amount to an offer 

of sale upon which a right of first refusal or preemptive right 

in a third party may operate?" 

Appellant relies on Weintz v. Bumgarner, 150 Mont. 306, 

434 P.2d 712. Weintz is the law in this state, but is not 

applicable to the facts of this case. 

Here, the will of decedent Thomas F. Wainwright gave his 

son Ray M. Wainwright a right to purchase at a price set forth 

in the appraisal. This provision of the will is not a sale as 

contemplated by the option to purchase, for the right to purchase 

comes by way of the will to Ray M. Wainwright. Unlike the facts 

of Weintz where the heirs collectively made a sale to one of the 

heirs, here,Ray M. Wainwright received the right to purchase by 

testamentary deposition. 

In Brown v. Thornton, 150 Mont. 150, 155, 432 P.2d 386, 

this Court said: 

It When on the record there is no genuine issue as to 

any material fact before the court the burden is on 

the party opposing the motion for summary judgment to 

present facts of a material and substantial nature 

raising a genuine issue. The trial judge has no duty 

to anticipate possible proof that might be offered. 

To impose such a duty would be to demand clairvoyance 

not possessed by even a trial judge." 

In view of the above, we find summary judgment for 

respondents proper. The judgment of the district court is affirmed. 
/ /chief Justice 

~ssociata! Justices.