No. 14625 IN THE SUPREME COURT OF THE STATE OF MONTANA 1980

IN THE MATTER OF THE ESTATE OF ISABELLAWALLACE, 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, Judgepresiding. 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 JohnWarner 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 incidentsby 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 sonsWilliam John,Jr. and James H. Wallace. In addition shedevised allpersonal property in trust for their benefit during their lives. ParagraphVIII of her Will provides: "Idirect 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 thisprovisionwhich forms the point of origin for the current dispute, the respondent claiming the creation of a vested remainder interestwith the enjoyment of such interestdelayed until the death of both of the sons,while the appellant contends any remainder interestwas contingent upon Schafer and McAlear surviving theWallace brothers. June 13, 1940-Isabella Wallace died survived by her two sons. 

## --- July 25, 1940-IsabellaWallace's Will was admitted to probate 

## --- and W. H. Schaferwas 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 estatewas 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 residueof 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 estatewas filed by Louis P. Donovan, attorney for the moving parties. Themotion was expressly based on the "inadvertent mistake" that theAugust 14, 1941decree failed to distribute 

### - all of the property of the estate, this omission consisting of the remainder of the realproperty 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 themotion was argued before Judge C. B. Elwell. March 20, 

### -- 1942.-Ordersetting aside the initial decree of distributionwas granted by Judge 

### C. B. Elwell. July 9, 1942-Pursuant to a new petition, a second decree of 

### --- distribution of the estate of IsabellaWallace 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 sub

## --- sequently Robert J. Suttonwas appointed as a replacement ~~trustee. November 20, 1971-William John Wallace, one of Isabella 

## -- Wallace's sonsdied 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-Apetition for the terminationof 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 IsabellaWallace'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, 1974petition 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-(Probatecause.) After assorted objections and motions by both parties, Judge Thomas ordered determinationof the various claims, aswell as final distribution of the IsabellaWallace 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 restrictionsof 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, 1978order 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 IsabellaWallace 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 firstdistribution and the issuance of the second decree. In

sodoing the appellant alleges the court was deceived intomaking

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 thisproof is the existence of an injury to a right of the plaintiff. "Generally speaking, the injury or damagewhich the plaintiff must prove must be somethingmore than contingent damage whichmay or may not occur.

(Citingauthority.) Plaintiffmay recoverwhen 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 therehad been no fraud,but he cannot recover where he does not show that he has sustained such damage or injury." Denny v. Brissonneaud (1973), 161Mont. 468, 472, 506 P.2d 77, 79. In the present case the appellant has not satisfied this burden of proof. Although the appellanthas addressed quite thoroughly

a case for deprivation of a right, he has completely failed to establish the existence of a rightpersonal to him or the estates he is representing on which he may seek to recover. Appellant must have a rightbefore he may receive a remedy. Not only must a rightbe asserted,but such a right must be shown to existby 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 appellantmust demonstrate that if the second decree of distribution (i.e. the July 9, 1942decree) 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 IsabellaWallace 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 (andtherefore to any heirs taking through -6-their individual estates) except for a life estate in the realproperty 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 toMcAlear and Schafer under paragraph VIII. This paragraph is a residuary clause in the case of a reversion and a remainder-over after the terminationsof the life estates of the two brothers. Appellant's argument that such interest asmay 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 intestacywere not favored by the courts. Section 91- 210,R.C.M. 1947 (repealedMont. Laws 1974); Blacker v. Thatcher (9thCir. 1944), 145 F.2d 255, 259; In Re ~priggs' Estate (1924),70 Mont. 272, 275, 225 P. 617, 618. In addition such an interpretationwould conflict with the main purpose of making 

### aWill which is to distribute - all of the estate property. At the time 

### of the probate of the Will, the following statuteprovided: "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 realproperty 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 inheritancewasmeant 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 athis 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. 

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# .Laches isnot, as is a statutoryperiod of limitations, a mere matter of elapsed time, but isprincipally a question of the inequity of permitting the claim to be enforced 

# . .

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"Althoughlapse of time alonewill 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 isno absolute rule as to what constitutes laches in Montana. Each case must be determined according to its own particular circumstances. Montgomery 

### v. FirstNat. Bank (1943), 114Mont. 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 ProbateCourt 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 amatter of elapsed time. "Laches

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# . is a concept of equity; it means negligence in the assertion of a right; it is the practical application of themaxim, 'Equity aids only the vigilant;' and it existswhen there has been unexplained delay of such duration or character as to render the enforcement of the asserted right inequitable." Riley 

### v. Blacker

(1915), 51Mont. 364, 370, 152 P. 758, 759; Montgomery, supra, 114Mont. at 408-09;Johnson v. Johnson (1977),172Mont. 150, 155, 561 P.2d 917, 920. In the present case,more than four yearshave passed from the time Suttonwas appointed as cotrustee of the estate of IsabellaWallace until an allegation of fraud through an objection

was filed by him in September 1974. Sutton had ample opportunityto 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 filinghis claim. This unexplained acquiescence by Sutton concerninghis 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 yearsmakes 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 filepart of the amended complaint, saying: 

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# . Plaintiff cannot now amend his complaint as to all defendantswithout leave of Court. Plaintiff concedes that Claim 

### I of his proposed amended complaint is a repetition of a claim or claimswhich 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 theirmerits, 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 FileAmended Complaint,document 58, civil suit. The order of the District Court applies only to the issues itsettled,and onwhich we now agree. In the amended complaint, Sutton abandoned the will contest. His claim to intestate division of the remainder property of the IsabellaWallace estate,

aswe have shown, depends on his ability to prove a right to that property under her Will. Since the claimhas no foundation in law, the District Court was correct in refusing to grant leave to file an amended complaintwhich tendered the same claim after the Court's decision against it. Itmakes no differencethat 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 issuesundecided. Sincewe agreewith the DistrictCourt on its resolution of the law applicable to the remainder and residueproperty under the IsabellaWallace Will,we find no

error in the order of the District Court denying leave to file an amended complaintwhich 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 consonantwith this opinion.

We Concur:

Chief Justice