No. 14625 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

IN THE MATTER OF THE ESTATE OF 

ISABELLA WALLACE, 

Deceased. 

No. 14794 

ROBERT J. SUTTON et al., 

Plaintiff and Appellant, 

HELEN McALEAR et al., 

Defendants and Respondents. 

Appeal from: District Court of the Twelfth Judicial District, 

Honorable B. W. Thomas, Judge presiding. 

Counsel of Record: 

For Appellants: 

Church, Harris, Johnson & Williams, Great Falls, Montana 

Douglas Allen argued, Great Falls, Montana 

Bunn and Brown, Chester, Montana 

For Respondents: 

Jardine, Stephenson, Blewett & Weaver, Great Falls, Montana 

Dale Schwanke argued, Great Falls, Montana 

Alexander and Baucus, Great Falls, Montana 

Edward Alexander argued, Great Falls, Montana 

Weber, Bosch, Kuhr, Dugdale, Warner and Martin, 

Have, Montana 

John Warner argued, Havre, Montana 

William F. Browning appeared, Great Falls, Montana 

Allen L. McAlear, Bozeman, Montana 

Submitted: January 18, 1980 

Decided : 

Filed: ' -, 
Mr. Justice John C. Sheehy delivered the Opinion of the Court. 

Robert J. Sutton, estate administrator, appeals from two 

orders of the Liberty County District Court, dismissing certain 

claims of his civil suit and denying his objections to a 1942 

decree of distribution in the Isabella Wallace estate. 

In stating the facts, it is easier to segregate the pertinent 

incidents by date as follows: 

-- June 15, - 1938-Isabella Wallace executed a Will which was 

prepared by J. H. McAlear, her attorney. In the Will Isabella 

Wallace named H. J. McAlear and W. H. Shafer as executors and 

testamentary trustees and devised life estates in her real property 

to her two sons William John, Jr. and James H. Wallace. In 

addition she devised all personal property in trust for their 

benefit during their lives. 

Paragraph VIII of her Will provides: 

"I direct that after the decease of my two sons 

my estate, both real and personal property, go fully 

and absolutely to W. H. Schafer and J. H. McAlear, 

share and share alike." 

It is this provision which forms the point of origin for the 

current dispute, the respondent claiming the creation of a vested 

remainder interest with the enjoyment of such interest delayed 

until the death of both of the sons, while the appellant contends 

any remainder interest was contingent upon Schafer and McAlear 

surviving the Wallace brothers. 

--- June 13, 1940-Isabella Wallace died survived by her two sons. 

--- July 25, 1940-Isabella Wallace's Will was admitted to probate 

and W. H. Schafer was appointed executor of the estate. McAlear 

acted as the attorney for the executor. 
--- July 14, 1941-Petition filed for final distribution 

of the estate. 

August -- 14, 1941-Final distribution of the estate was ordered 

by Judge C. B. Elwell to Shafer and McAlear as testamentary 

trustees for the use and benefit of the Wallace brothers. A 

remainder over in the real property was decreed to the 

trustees. The residue of the estate was decreed to go to 

the trustees "in the event that the . . . trustees should be 

predeceased by the two cestuis . . ." 

February -- 14, 1942-Motion to set aside the decree of distribution of the estate was filed by Louis P. Donovan, attorney for 

the moving parties. The motion was expressly based on the 

"inadvertent mistake" that the August 14, 1941 decree failed to 

distribute - all of the property of the estate, this omission consisting of the remainder of the real property and, 

the remainder of personal property after the termination 

of the life estates in the event the Wallace Brothers survived 

the two trustees. 

March -- 12, 1942-By a written consent on this date the 

Wall-ace brothers agreed to join in the motion to set aside the 

distribution. Also on this date the motion was argued before 

Judge C. B. Elwell. 

March -- 20, 1942.-Order setting aside the initial decree of 

distribution was granted by Judge C. B. Elwell. 

--- July 9, 1942-Pursuant to a new petition, a second decree of 

distribution of the estate of Isabella Wallace was entered by the 

court, distributing the remainder interests of both the real 

and personal property to Schafer and McAlear after the termination 

of the life estates and trusts. 

September -- 10, 1968-W. H. Schafer died on this date. 

Subsequently Mary E. Schafer, his wife was appointed as a 

replacement cotrustee. 
October -- 25, 1968-J. H. McAlear died on this date. Trudy 

McAlear Elsberry, his daughtez; was later appointed as a cotrustee 

on May 28, 1969. 

July --- 1, 1970-Mary E. Schafer died on this date and subsequently Robert J. Sutton was appointed as a replacement ~~trustee. 

November 20, 1971-William -- John Wallace, one of Isabella 

Wallace's sons died on this date. 

September -- 26, 1973-James H. Wallace, the other of Isabella 

Wallace's sons, died. Sutton was later appointed administrator 

of his estate. 

February -- 1, 1974-A petition for the termination of the 

trust and life estates established under the Will of Isabella 

Wallace was filed by the heirs of J. H. McAlear. 

September -- 12, 1974-Sutton, as the appointed administrator. 

of the individual Wallace brothers' estates, filed an objection 

to the February 1, 1974 termination petition. The objection 

was based on allegations of fraud, misrepresentation and 

undue influence in the execution of Isabella Wallace's Will 

by Schafer and McAlear. 

--- July 18, 1975-Sutton, as administrator of the Wallace 

Brothers' estates, filed a civil action against the respondents 

based on the same allegations against Schafer and McAlear. 

October -- 23, 1975-(Probate cause.) Judge B. W. Thomas 

entered an order dismissing Sutton's September 12, 1974 objection 

for lack of jurisdiction. The order also granted the February 

1, 1974 petition of the McAlear-Schafer heirs. The Court thereby 

declared and divided ownership of the Isabella Wallace remainder 

estate among the heirs of Schafer and McAlear. 

December -- 16, 1975-(Probate cause.) After assorted objections 

and motions by both parties, Judge Thomas ordered determination 
of the various claims, as well as final distribution of the 

Isabella Wallace estate, be reserved until determination of 

the issues in the civil action. 

--- June 13, 1978-(Civil cause.) Judge Thomas entered an order 

dismissing claims in Sutton's civil suit, basically holding 

against Sutton on the allegations against Schafer and McAlear. 

September -- 14, 1978-(Probate cause.) After the action of 

the court in the civil action on June 13, 1978, Judge Thomas in 

the probate action dissolved the restrictions of his December 

16, 1975 order and ordered distribution of the remainder assets 

of the Isabella Wallace Estate to the McAlear-Schafer heirs. 

March -- 8, 1979-(Civil cause.) Judge Thomas, pursuant to 

Rule 54(b), M.R.Civ.P., ordered final judgment entered on its 

June 12, 1978 order in the civil action. 

Appeals have been timely taken and the two suits have been 

consolidated for purposes of review. It is from these last two 

court actions that Sutton appeals setting forth the following 

issues for our consideration: 

(1) Did the District Court err in its September 14, 1978 

order, in the Isabella Wallace probate, distributing the assets 

of the estate to the McAlear-Schafer heirs? 

(2) Did the District Court err in its June 13, 1978 order, 

by dismissing claims in Sutton's civil complaint? 

(3) Should Sutton be allowed to file his amended complaint? 

In the present case the thrust of appellant's argument is 

that a fraud was perpetrated upon the Wallace brothers by the 

two testamentary trustees, McAlear and Schafer, in obtaining their 

signature to a consent which thereby resulted in setting aside the 

first distribution and the issuance of the second decree. In 

so doing the appellant alleges the court was deceived into making 

a wrongful distribution of the assets of the estate of Isabella 

Wallace. 

-5- 
In cases of undue influence as in actual fraud, the 

burden is upon the party alleging the fraud to set forth facts 

proving a fraud did in fact occur. An essential element of 

this proof is the existence of an injury to a right of the 

plaintiff. 

"Generally speaking, the injury or damage which the 

plaintiff must prove must be something more than 

contingent damage which may or may not occur. 

(Citing authority.) Plaintiff may recover when he shows 

that he has sustained some pecuniary damage or 

injury by reason of having been put in a position 

worse than he could have occupied if there had been 

no fraud, but he cannot recover where he does not 

show that he has sustained such damage or injury." 

Denny v. Brissonneaud (1973), 161 Mont. 468, 472, 

506 P.2d 77, 79. 

In the present case the appellant has not satisfied this burden 

of proof. Although the appellant has addressed quite thoroughly 

a case for deprivation of a right, he has completely failed to 

establish the existence of a right personal to him or the estates 

he is representing on which he may seek to recover. Appellant 

must have a right before he may receive a remedy. 

Not only must a right be asserted, but such a right must 

be shown to exist by substantial evidence. This burden is 

placed upon the contestant. In Re Maricich's Estate (19651, 145 

Mont. 146, 161, 400 P.2d 873, 881. In the instant case the 

appellant must demonstrate that if the second decree of distribution (i.e. the July 9, 1942 decree) is set aside, that the 

Wallace brothers, the individual estates of whom the appellant 

is representing, would have a right to the contested remainder 

property interests. Statedmore succinctly, but for the consent 

of the Wallace brothers, would the brothers have received the 

remainder interest of the real and personal property of the 

Isabella Wallace estate? This Court finds the answer to be in 

the negative. 

The language of the Will itself does not leave anything to 

the Wallace Brothers (and therefore to any heirs taking through 

-6- 
their individual estates) except for a life estate in the 

real property under paragraph IV, and as beneficiaries of a 

trust of the personal property under paragraph VI. Whatever is 

left after the life estates or the end of the trust, be it a 

remainder or a reversionary interest, will pass to McAlear and 

Schafer under paragraph VIII. This paragraph is a residuary 

clause in the case of a reversion and a remainder-over after the 

terminations of the life estates of the two brothers. 

Appellant's argument that such interest as may exist 

after termination of the life estates would pass intestate to 

the respective estates of the Wallace brothers also fails. Under 

then existing Montana law Wills were to be construed so as 

to avoid total or impartial intestacy. Constructions leading 

to intestacy were not favored by the courts. Section 91- 

210, R.C.M. 1947 (repealed Mont. Laws 1974); Blacker v. 

Thatcher (9th Cir. 1944), 145 F.2d 255, 259; In Re ~priggs' 

Estate (1924), 70 Mont. 272, 275, 225 P. 617, 618. 

In addition such an interpretation would conflict with the 

main purpose of making a Will which is to distribute - all of the 

estate property. At the time of the probate of the Will, the 

following statute provided: 

"Certain words not necessary ---- to pass a fee. The 

term 'heirs', or other words of inheritance, are 

not requisite to devise a fee, and a devise of 

real property passes all the estate of the testator, 

unless otherwise limited." Section 91-213, R.C.M. 

1947 (now section 72-11-311, MCA). 

This statute was originally promulgated to abolish the 

common law inference that no estate of inheritance was meant 

to be passed in the absence of direct and express words creating 

such an estate. That same statute harmonizes with another 

provision of the Uniform Probate Code, section 72-2-502, MCA, 

which states that a Will should be "construed to pass all property 

which the testator owns at his death, including property acquired 

after the execution of the will." 
This Court also recognizes that the doctrine of laches 

constitutes a further impediment to the claims of the appellant. 

". . . Laches is not, as is a statutory period 

of limitations, a mere matter of elapsed time, 

but is principally a question of the inequity of 

permitting the claim to be enforced . . ." 

"Although lapse of time alone will not support 

a defense of laches, it has been held sufficient 

where it would be clearly inequitable to permit 

the enforcement of bare legal rights or where the 

other circumstances are such that the delay in the 

assertion of rights has been wholly unreasonable . . ." 27 Am.Jur.2d Equity, S163. 

Furthermore, there is no absolute rule as to what constitutes 

laches in Montana. Each case must be determined according to 

its own particular circumstances. Montgomery v. First Nat. 

Bank (1943), 114 Mont. 395, 408, 136 P.2d 760, 766. 

Applying the doctrine to the instant case, there is no 

question that the passage of 32 years since the Probate Court 

issued its second decree is of such a duration as to make a 

present attack on that decree inequitable. The situation is 

further compounded by the fact that every participant in the 

contested transaction is now deceased and has been for quite some 

time. 

However, as.we have already noted, the doctrine of laches is 

not just a matter of elapsed time. 

"Laches . . . is a concept of equity; it means 

negligence in the assertion of a right; it is 

the practical application of the maxim, 'Equity 

aids only the vigilant;' and it exists when there 

has been unexplained delay of such duration or 

character as to render the enforcement of the 

asserted right inequitable." Riley v. Blacker 

(1915), 51 Mont. 364, 370, 152 P. 758, 759; 

Montgomery, supra, 114 Mont. at 408-09; Johnson 

v. Johnson (1977), 172 Mont. 150, 155, 561 P.2d 

917, 920. 

In the present case, more than four years have passed from 

the time Sutton was appointed as cotrustee of the estate of 

Isabella Wallace until an allegation of fraud through an objection 

was filed by him in September 1974. Sutton had ample opportunity 
to raise his objection within a reasonable time after assuming 

his trustee duties on July 1, 1970. 

Furthermore, no reasonable excuse for such a delay has 

been asserted by Sutton so as to ameliorate his lack of vigilance 

and delay in filing his claim. This unexplained acquiescence 

by Sutton concerning his trustee duties indicates that he 

accepted the Will and distribution by the court as amended by 

judicial decree on July 9, 1942. This factor coupled with the 

elapsed time of thirty-eight years makes it inequitable for the 

appellant to attempt now further legal attack on the distribution 

based on the July 1942 decree. 

The remaining issue relates to whether appellant can file 

his amended complaint in the civil action. The District Court 

refused leave to file part of the amended complaint, saying: 

". . . Plaintiff cannot now amend his complaint 

as to all defendants without leave of Court. 

Plaintiff concedes that Claim I of his proposed 

amended complaint is a repetition of a claim or 

claims which were dismissed by the Order of 

June 12, 1978, and that, insofar as that claim is 

concerned, by his motion to amend he is asking the 

Court to reconsider that Order. Since the issues 

covered by Claim I of the proposed amended complaint 

have previously been fully considered by the Court 

and dismissed on their merits, the Court finds that 

there has been no showing that justice requires the 

allowance of the amended complaint insofar as those 

issues are concerned." Order On Motion For Leave 

To File Amended Complaint, document 58, civil suit. 

The order of the District Court applies only to the issues 

it settled, and on which we now agree. In the amended complaint, 

Sutton abandoned the will contest. His claim to intestate 

division of the remainder property of the Isabella Wallace estate, 

as we have shown, depends on his ability to prove a right to 

that property under her Will. Since the claim has no foundation 

in law, the District Court was correct in refusing to grant 

leave to file an amended complaint which tendered the same claim 

after the Court's decision against it. It makes no difference 
that the amended complaint was tendered before some of the 

McAlear-Schafer claimants had filed a responsive pleading to 

the first Sutton complaint. Rule 15(a), M.R.Civ.P., does 

not preclude the District Court from striking issues already 

decided. Nothing in the District Court's order precludes 

Sutton from filing his amended complaint as to other issues 

undecided, or from amending again so as to include only 

issues undecided. Since we agree with the District Court on 

its resolution of the law applicable to the remainder and 

residue property under the Isabella Wallace Will, we find no 

error in the order of the District Court denying leave to 

file an amended complaint which would raise those issues 

again. 

The decisions of the District Court in the civil and 

probate proceedings are affirmed. The causes are remanded 

for further proceedings consonant with this opinion. 

We Concur: 

Chief Justice