No. 89-309 

IN THE SUPREME COURT OF' TIHE STATE OF MONTANA 

IN THE MA?'TF:R OF THE ESTATE OF 

MARY ELEANOR WINSTON DIICF:Y, 

Deceased. 

I i W 

APPEAL FROM: District Court of the Second Judicial ~istzict, , 

In and for the County of Silver Bow, c 

C 0 

The Honorable Arnold 01 sen, Fudge presidinqi, 

COUNSEL OF RECORD: 

For Appellant: 

C. Kathleen McRride; Johnson, Skakles & Kehe, Butte, 

Montana 

James FT. Erbeck; Jones, Jones, Close & Rrown, Lac Veqas, 

Nevada 

For Respondent: 

Zoseph Nappi, Jr. and Carl Oreskovich; Hemovich, Nappi, 

Oresko~ri ch and Rut 1 er, Spokane, F?ashingt.or, 

-- -- - - - - - - - - - - 

Submitted on Briefs: Dec. 14, 1989 

Decided: February 6, 1990 
Justice R. C. McDonough delivered the Opinion of the Court. 

This appeal involves a petition to transfer the assets 

of a Nevada trust to an estate being probated in the Montana 

Second Judicial District, County of Butte-Silver Row. First 

Interstate Bank of Nevada, N.A. (FIBN) , respondent below, 

appeals Order of the District Court ordering FIBN to transfer 

and deliver all assets of the "Trust of Mary Eleanor Winston 

Ducey" to the petitioner, Michael F. Keyes, as Personal 

Representative of the Estate of Mary Eleanor Winston DUG~Y 

(the Estate), to be distributed in accordance with the will 

of the decedent. We reverse the District Court's Order and 

order the petition dismissed for lack of jurisdiction. 

FIRN raises the following issue on appeal: 

(1) Did the District Court have jurisdiction to order 

the transfer of assets from a foreign trust located in Nevada 

to the probate estate in Montana? 

FIBN raised other issues but the above issue disposes 

of this appeal. 

In October of 1969 the trustors Mary E. Ducey and 

Winfield S. Ducey, husband and wife, created an inter vivos 

trust in Las Veqas, Nevada, where they resided. The oriqinal 

trustee was the First National Bank of Nevada Reno, Nevada. 

Two amendments to the trust were executed, the first a few 
days after the trust was created and the second by Mary Ducey 

after the death of her husband Winfield. 

The Trust provided that during the lifetime of the 

trustors or a surviving trustor, the income from the trust 

would be paid to the trustors or the surviving trustor. Upon 

the death of the surviving trustor, the Trust provided for 

disposition of the assets of the trust estate. 

Mary Ducey executed her last will and testament April 

13, 1987. The will provided for the distribution of the 

estate, and included devises to various parties different 

from the distributions to other parties listed in the trust 

agreement. The will also included a revocation of any and 

all prior wills made by the testatrix, but nowhere in the 

will is there any mention of the Nevada trust. 

Shortly after her husband's death in 1970, Mary Ducey 

moved to Butte, Montana where she resided until her death on 

August 2, 1987. In March of 1988, FIBN filed a Petition for 

Confirmation of Appointment of Trustee and Request for 

Instructions before the Nevada Probate Court to effect 

disposition of the trust, consisting of approximately 

$100,000.00 in liquid assets, pursuant to the terms of the 

trust. The Estate of Mary Ducey through its personal 

representative Michael Keyes, opposed the petition. On 

February 24, 1989 the Nevada Probate Commissioner dismissed 

the petition allegedly on the grounds that the Petition 
attempted to determine title to the trust assets and ordered 

FIRN to file a complaint in Nevada District Court. On March 

29, 1989, the Estate of Mary Ducey filed a Petition for 

Transfer of Trust Assets of Estate in the Montana Second 

Judicial District Court, County of Butte-Silver Bow. FIRN 

alleges that on April 6, 1989, it filed its complaint for 

declaratory relief in the Eighth Judicial District Court, 

Clark County, Nevada to determine the validity of the trust. 

FIBN alleges that said complaint is still pending in Nevada 

District Court. 

On April 24, 1989 FIBN filed its "Request for Special 

Appearance and Motion to Quash Petition to Transfer Assets of 

Foreign Trust." The matter was heard before the Montana 

Second Judicial District Court on April 26, 1989. FIBN made 

a "special appearance" solely to oppose the Estate's petition 

on jurisdictional grounds. After a hearing on the matter, 

where FIRN participated only with respect to the jurisdiction 

issue, the Court declared that its jurisdiction of the 

probate of the decedent's will included jurisdiction over the 

trust assets and subsequently ordered FIBN to deliver the 

trust assets over to the estate. FIBN now appeals this order 

and raises the issue listed above. 

I 

"Jurisdiction as applied to courts is the power or 

capacity given - by -- law to a court to entertain, hear and 
determine the particular case or matter." State ex re1 

Johnson v. District Court (1966), 147 Mont. 263, 267, 410 

P.2d 933, 935. Jurisdiction can affect either persons 

(jurisdiction - in personam), or interests in property 

(jurisdiction - in - rem or quasi in -- rem). 

I. - In -- Rem Jurisdiction 

The basis of in rem jurisdiction is the presence of the 

subject property within the territorial jurisdiction of the 

forum state. Overby v. Gordon (1900), 177 U.S. 214, 222, 20 

S.Ct. 603, 606, 44 L.Ed. 741, 745. This principle is also 

codified in the Uniform Probate Code, § 72-1-201, MCA, which 

provides that the Code applies to "the property of 

nonresidents located - in -- this state or property coming into 

the control of a fiduciary who is subject to the laws of this 

state . . . " Section 72-1-201 (2), MCA. 

Here, the property in question is not located within the 

forum state. In this regard, the case at bar is nearly 

identical to Hanson v. Denck1.a (1958), 357 U.S. 235, 78 S.Ct. 

1228, 2 L.Ed.2d 1283, where the United States Supreme Court 

reversed a Florida Supreme Court decision which held that 

authority over the probate and construction of its 

domiciliary's will, under which the assets in question might 

pass, was sufficient to confer the requisite jurisdiction 

over assets in a foreign trust. The Court stated: 
. . . jurisdiction cannot be predicated upon the 

contingent role of this Florida will. Whatever the 

efficacy - of a so-called "in rem" jurisdiction over 

assets admittedly - - passing under a local will, a 

State acquires no -- in rem jurisdiction to adjudicate 

the validity of inter vivos dispositions simply 

because its decision might augment an estate 

passing under a will probated in its courts . . . The fact that the owner is or was domiciled within 

the forum State is not a sufficient affiliation 

with the property upon which to base jurisdiction 

-- in - rem. 

. . . so far as it purports to rest upon 

jurisdiction over the trust assets, the judgment of 

the Florida Court cannot he sustained. 

Hanson, 357 U.S. at 248-250, 78 S.Ct. at 1237-1238, 2 L.Ed.2d 

At the conclusion of the hearing on the petition to 

transfer the trust assets, the District Court judge ruled: 

Well, this court has the jurisdiction of the 

probate of her will and the distribution of her 

property. 

And counsel is instructed to prepare an Order 

directing the Bank in Nevada to deliver up the 

assets to the estate. 

We will execute the will here. 

Under the rule of Hanson, the District Court would not have 

in rem jurisdiction over the trust assets in Nevada by virtue 

of the will being. probated in Montana, thus the District 

Court's above ruling is in error. 

11. - In Personam Jurisdiction 

The determination of in personam jurisdiction is a two 

step process. Nelson v. San Joaquin Helicopters (1987), 228 

Mont. 267, 270, 742 P.2d 447, 449. First, it must be 
determined whether the party comes within the general 

jurisdiction or long arm jurisdiction of the court. Nelson, 

742 P.2d at 449. The second step, should the court have 

jurisdiction, is to ask whether the exercise of jurisdiction 

would be commensurate with the party's due process rights. 

- See Simmons v. State of Oregon (1983), 206 Mont. 264, 670 

P.2d 1372; Jackson v. Kroll (1986), 223 Mont. 161, 724 P.2d 

The applicable statute governing in personam 

jurisdiction is Rule 4B(1), M.R.Civ.P., which provides in 

part: 

Rule 4B. Jurisdiction of persons. (1) Subject to 

jurisdiction. All persons found within the state 

of Montana are subject to the jurisdiction of the 

courts of this state. In addition, any person is 

subject to the jurisdiction of the courts of this 

state as to any claim for relief arising from the 

doing personally, through an employee, or through 

an agent, of any of the following acts: 

(a) the transaction of any business within this 

state; 

General jurisdiction applies to cases where the cause of 

action is "distinct from" the defendant's activity in the 

forum, see e.q. State of North Dakota v. Newberqer (1980), 

188 Mont. 323, 613 P.2d 1002. When general jurisdiction is 

asserted it is evaluated by the "minimum contacts" due 

process standard required by International Shoe Co. v. 

Washington (1945), 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95. 
Here, the cause of action is not distinct from FIBN's 

activity in the forum, rather it arises directly from the 

alleged activity within the forum of FIBN regarding the Mary 

Ducey trust. The record does not contain substantial 

evidence indicating that FIBN's activities are so 

"substantial" or "systematic and continuous" to find that 

FIBN is "found within" the State of Montana for purposes of 

general jurisdiction. Rule 4B (1) , M.R.Civ.P. , - International 

Shoe, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95. 

We turn to the issue of whether FIBN as trustee falls 

under the longarm jurisdiction of the court. The applicable 

portion of the longarm statute is subsection (a), which 

subjects any person who transacts any business within this 

state to the jurisdiction of Montana courts. Rule 4B (1) , 

M.R.Civ.P. The estate argues that FIRN transacted business 

in Montana based on the following: (1) Mary Ducey was a 

resident of Montana, (2) periodic trust payments were made to 

her throughout her Montana residency, (3) FIBN amended the 

trust document and presumably would do so again at her 

request while Mary Ducey was a Montana resident, (4) at her 

request, the Bank allegedly negotiated changes in the trust 

telephonically with Mary in Montana to allow the assets to go 

to certain beneficiaries she desired in Montana, (5) FIBN 

allegedly instructed her to draft a will and send a copy to 

FIRN to allow the trust assets to pass under the will, and 
(6) FIBN "apparently" received permission from Mary Ducey, a 

Montana resident, to act as a successor trustee for First 

National Bank of Nevada or its successor. 

Hanson v. Denckla, supra, also controls the disposition 

of the in personam jurisdiction issue in this case. The 

estate attempts to distinguish Hanson as non-controlling on 

the basis of the Supreme Court's decision in McGee v. 

International Life Ins. Co. (1957), 355 U.S. 220, 78 Sect. 

199, 2 L.Ed.2d 223. In McGee, the defendant Texas insurance 

company agreed to assume the insurance obligations of the 

plaintiff's original Arizona insurer. The nonresident 

defendant insurance company then solicited a re-insurance 

agreement with the plaintiff, a resident of California. The 

Supreme Court held that the California court had jurisdiction 

based on the solicitation of the re-insurance agreement. In 

Hanson the Court distinguished McGee from cases involving the 

validity of a trust, stating: 

The cause of action in this case is not one 

that arises out of an act done or transaction 

consummated in the forum state. In that respect, 

it differs from McGee . . . [Tlhis action involves 

the validity of an agreement that was entered 

without any connection with the forum State. The 

agreement was executed in Delaware by a trust 

company incorporated in that State and a settlor 

domiciled in Pennsylvania. The first relationship 

Florida had to the agreement was years later when 

the settlor became domiciled there, and the trustee 

remitted the trust income to her in that State. 

From Florida Mrs. Donner carried on several bits of 

trust administration that may be compared to the 

mailing of premiums in McGee. But the record 
discloses no instance in which the trustee 

performed any acts in Florida that bear the same 

relationship to the agreement as the solicitation 

in McGee . . . 

Hanson, 357 U.S. at 251-252, 78 S.Ct. at 1238-1239, 2 L.Ed.2d 

at 1296-1297. Like the trustee in Hanson, FIBN did not 

conduct any business in the forum state availing itself of 

the benefits and protections of Montana's laws. FIBN made 

some payments of trust income to Mrs. Ducey in Montana. FIBN 

allegedly responded to requests made by Mrs. Ducey and 

allegedly participated in negotiations initiated by and at 

the request of Mrs. Ducey. From Montana, Mrs. Ducey carried 

on several bits of trust administration that may be compared 

to the mailing of premiums in McGee. However, the record 

does not indicate that FIBN as trustee performed any acts in 

Montana that bear the same relationship to the trust 

agreement as the solicitation of re-insurance in McGee. - See 

Hanson, 357 U.S. at 252, 78 S.Ct. at 1239, 2 L.Ed.2d at 1297. 

The estate argues that -- McGee is applicable because FIBN 

"apparently" received permission from Mary Ducey, a Montana 

resident, to act as successor trustee to First National Bank 

of Nevada, in Reno, Nevada. Hence, the estate argues that 

FIBN could only have assumed the role of trustee by seeking 

Mary Ducey's permission or appointment while she was 

domiciled in Montana. The estate then maintains that the 

"sparsity" of the record with regard to how FIBN became 
successor trustee is due to the late hour at which FIBN 

objected to the petition to transfer the assets. 

What the estate refers to as a "sparsity" in the record 

would be better described as a complete lack of any evidence 

or testimony in the record as to how FIBN became successor 

trustee. Likewise, this argument analogizing the 

solicitation in McGee to the "apparent" solicitation for 

appointment as successor trustee is also absent from the 

record below. There is simply no evidence to support this 

argument. The record contains no evidence that FIRN 

performed any acts equivalent to the transaction of business 

in Montana that bear the same relationship to the trust 

agreement as the solicitation in McGee. Hanson, 357 U.S. at 

252, 78 S.Ct. at 1239, 2 L.Ed.2d at 1297. Thus the District 

Court lacked both -- in rem jurisdiction over the assets of the 

foreign trust and - in personam jurisdiction over FIRN as 

trustee. 

Because the court lacked jurisdiction over FIBN and the 

trust, we need not dispose of the other issues raised on 

FIBN' s appeal. We do note that there is no longer any 

distinction between a general or special appearance in 

Montana. Foster Apiaries, Inc. v. Hubbard ~piaries, Inc. 

(Mont. 1981), 630 P.2d 1213, 1215, 38 St.Rep. 1025, 

1027-1028. Rule 12 M.R.Civ.P. eliminates the need for the 
traditional classifications of general and special 

appearances. 

The District Court having no jurisdiction to entertain, 

hear, and determine this matter, the Order of the District 

Court to transfer the assets of the Nevada trust is vacated. 

REVERSED and the Petition is DISMISSED. 

We Concur: / 

,, 1 

&?@ .%,&7%d Justice 
Justice William E. Hunt, Sr., dissenting: 

I dissent. The dispute in this case concerns the 

validity of a trust administered by First Interstate Bank of 

Nevada, N.A. (FIBN) , as trustee. FIBN, by accepting the 

appointment as trustee of a trust established by a Montana 

resident, transacted business in this state, thereby 

subjecting it to jurisdiction under the longarm statute, Rule 

4B(1) (a), M.R.Civ.P. 

The present case is not on all fours with Hanson v. 

Denckla (1958), 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283, 

as the majority would have us believe. In Hanson, a 

Pennsylvania resident executed a trust instrument in Delaware 

naming a Delaware trust company as trustee. The trustor then 

moved to Florida, where she died. The Supreme Court held 

that the Delaware trustee could not be subject to the 

jursidiction of the Florida courts when jurisdiction would be 

based solely upon the unilateral actions of the trustor. 

In the present case, Nevada residents executed a trust 

instrument in Nevada naming First National Bank of Reno, 

Nevada, as trustee. In 1970, one of the trustors died and 

the surviving trustor moved to Montana. In 1979, after the 

trustor had resided in Montana for nine years, FIBN accepted 

the appointment as successor trustee to the trust. 

Unlike Hanson, jurisdiction in the present case is not 

based solely upon the unilateral actions of the trustor. 

Rather, the actions of the trustee in this case are akin to 

the actions of the insurance company in McGee v. 

International Life Ins. Co. (1957), 355 U.S. 220, 78 S.Ct. 

199, 2 L.Ed.2d 223. Both the trustee in this case and the 

insurance company in McGee purposefully interjected 

themselves into the forum state, availing themselves of the 
benefits and protections of the forum' s laws. FIBN 

purposefully interjected itself into this state in 1979 when 

it accepted the appointment as trustee to the Ducey trust. 

Apparently, FIBN became the successor trustee through a 

merger with First National in 1979. Although the trust 

agreement contained a provision regarding the right of the 

trustee to resign, it made no provision regarding the 

automatic transfer of trusteeship upon the merger of the 

trustee bank with another. The resignation clause merely 

provided as follows: 

The right is reserved by and granted to the 

Trustee, upon notice in writing to the Trustors 

during their lifetime or to the surviving Trustor 

during his or her lifetime, to surrender this 

trust, and upon such election by the Trustee, the 

Trustors shall accept the resignation of the 

Trustee and shall appoint a new Trustee, and in the 

event of the failure, refusal or inability of the 

Trustors so to do, the Trustee, at the cost and 

expense of the trust estate, may secure the 

appointment of a new Trustee in the manner provided 

by law. 

From this clause, we can surmise one of two facts, both 

pointing toward jurisdiction. Either FIBN solicited the 

trustee appointment from the trueor in Montana or First 

National appointed FIBN to act as trustee in its stead. In 

either case, FIBN accepted the appointment knowing that the 

trustor was a Montana resident. 

FIBN should have reasonably anticipated being haled into 

court in Montana. It accepted the appointment as trustee for 

a Montana resident's trust, which named Montana residents as 

beneficiaries. It forwarded periodic trust payments to the 

trustor in Montana. It negotiated over the phone with the 

trustor in Montana, allegedly instructing her to draft a will 

and send. it a copy to allow the trust assets to pass under 
the will--the very subject of these discussions form the 

basis of the present controversy. 

Montana has an interest in assuring that the wishes of 

individuals who die while residents of this state are carried 

out. Furthermore, as the state where the will is probated, 

this state is the most efficient forum for the resolution of 

the present controversy. 

I would affirm the District Court on this issue. 

I agree with the dissent of Justice ~illiam E. Hunt, Sr.