No. 85-506 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

IN THE MATTER OF THE ESTATE OF 

CLAYTON FOGERTY, Deceased. 

lPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Morrow, Sedivy & Bennett; Lyman H. Bennett, 111, 

Bozeman, Montana 

For Respondent : 

Richard Kalar, Emigrant, Montana 

Submitted on Briefs: Feb. 26, 1986 

Decided: May 271 1986 

MAY 2 '1 1986 

Filed: 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Following the death of Clayton Fogerty (decedent), Anna 

Pratt filed a petition requesting adjudication of intestacy 

and appointment as personal representative. After bench 

trial, the Gallatin County District Court denied the petition. Anna Pratt appeals. We affirm. 

The issues on appeal are: 

1. Did the District Court err in holding the decedent's 

will had not been revoked? 

2. Did the District Court err in naming Richard Kalar 

personal representative of decedent's estate? 

Decedent died in January 1985. His will, which was 

dated June 14, 1984, was admitted to informal probate and 

Richard Kalar was appointed as personal representative, 

according to the terms of the will. The will contained a 

specific devise to Anna Pratt (petitioner) and named Church 

Universal and Triumphant residuary legatee: 

SECOND: I give, devise and bequeath unto Anna 

Pratt . . . [a] 1981 Fleetwood Mobile Home size 

28x66 . . .[and] [a111 the furniture, appliances 

and household goods . . .in the mobile [home] . . . 

THIRD: I give, devise and bequeath unto Church 

Universal and Triumphant . . .whatever cash on hand 

or money in the bank . . .I also give, devise and 

bequeath my present car or whatever car I might 

have to Church Universal and Triumphant, and all 

assets other than the Mobile and furnishings. . . 

On the belief that this will had been revoked, Anna Pratt 

petitioned the court to declare decedent intestate and to 

appoint her as personal representative. 

Did the District Court err in holding the decedent's 

will had not been revoked? 
In the early part of January 1985, decedent had a heart 

attack in Bozeman. Initially, he was lucid and coherent. On 

January 14, 1985, after respiratory arrest, decedent was 

placed on a respirator and tubes were run down his throat. 

This limited his communication. He was not able to speak. 

After being notified that decedent was in the hospital, 

Anna Pratt flew to Bozeman from Sacramento, California. Her 

testimony was essentially as follows: On January 15, 1985, 

during a period when Anna Pratt thought the decedent was 

awake and lucid, she asked decedent if he wanted to revoke 

his will. Anna Pratt testified that d.ecedent moved his hea.d 

in such a matter as to indicate "yes." She further testified 

that she called decedent's attending nurse, asked the same 

question and again received an affirmative nod of the head; 

and then tore up the will in front of the nurse and the 

decedent. Anna Pratt contends this was an adequate revocation of the will. Decedent died 10 days later. 

The testimony of the attending doctor and nurse directly 

contradicted the testimony of Anna Pratt. The District Court 

concluded that the decedent did not have the capacity to make 

or direct voluntary destruction of his will, stating in part: 

4. Mr. Fogerty was confined to the hospital having 

suffered multiple heart attacks and complications 

which eventually led to his death on January 25, 

1985. 

5. That nurse Kathleen Wilson was attending 

Clayton 0. Fogerty as his personal nurse on January 

15, 1985, continuously from 3:00 p.m. until after 

the petitioner left Mr. Fogerty's bedsid-e. 

8. At approximately 7:30 p.m. Mr. Fogerty momentarily opened his eyes whereupon Anna Pratt produced a 

duplicate copy of the will and held it before him. 

She attempted to ask Mr. Fogerty if he consented to 

the destruction of the will whereupon Mr. Fogerty's 

head moved in a slight manner. There is insufficient evidence to show that he in any way intended 
that Anna Pratt destroy the will or that he was 

responding to any verbal statement by Anna Pratt. 

9. Due to Mr. Fogerty's seriously ill condition he 

did not have the cognitive capacity to make a 

knowing and voluntary destruction of his will nor 

did he possess the capacity to direct the actions 

of Anna Pratt. 

Nurse Kathleen Wilson, who cared for decedent while he 

was in the intensive care unit, testified with regard to the 

tearing up of the will as follows: 

I was on the 1-eft side of his bed and I was occupied with handling medications or something . . . at his bedside. She told me that she was getting 

ready to leave; that she had to go ahea-d and go 

home for the evening. She bent over and like had 

Clayton's hand and she evidently had her purse with 

the folded copy of the will in the other hand. I 

could not see it at that time. She said, "Clayton, 

Clayton" and he opened his eyes for just very 

briefly and she said, "Is it all right with you if 

I tear up this up this will?" And she held up the 

little piece of paper, the folded paper, which I 

don't know if he saw or not. He kind of closed his 

eyes and nodded his head down at which point she 

tore up the paper. I was totally amazed. 

Dr. Richard Tenney, decedent's attending physician, did 

not testify as to the actual tearing up of the will, as he 

was not personally present. However, he did testify with 

regard to the capacity of the decedent, as follows: 

Again, I go back to what I said, that even though 

they have a lucent [sic] point during which, say, I 

examine them in the morning and I say, "How are 

you?" And he shakes his head . . . they're so 

critically ill that I'm not totally sure when you 

ask them for a yes or no answer, whether you ask 

them to shake yes or no, up and down or whatever, 

that they're actually aware of what they're saying. 

They may be giving you an answer just to get you 

off their back because they're so weak. If I have 

to say yes or no, are you going to ask me: Can 

they make good decisions while they're patients 

like this, I say no, but there may be a point where 

they're asked a specific question where they may be 

lucid at that time, but categorically speaking, 

these people are not capable of making good 

decisions. 

After a careful examination of the transcript, we conclude there is both substantial and compelling evidence that 
decedent did not have the capacity to revoke his will. We 

affirm the holding of the District Court that the decedent's 

will had not been revoked, and the will was properly admitted 

to probate. 

Did the District Court err in naming Richard Kalar 

personal representative of the decedent's estate? 

Petitioner contends Mr. Kalar should be removed as 

personal representative because he failed to post a bond, 

violating S 72-3-514, MCA. 

On May 20, 1985, the day of trial, on the basis that Mr. 

Kalar had not received notice of the demand to post bond, the 

motion to remove Mr. Kalar was denied. The transcript discloses the following conversation: 

THE COURT: [Dlid you serve any of these papers on 

Mr. Kalar? 

MR. BENNETT: I requested the Clerk of Court to do 

so, your Honor. I did not do it personally. 

THE COURT: Have you reviewed the file to see if 

the Clerk did that? 

MR. BENNETT: No. I haven't, your Honor. 

MR. KALAR: I see the demand in the file, sir, but 

I never received a copy of this. . . . THE COURT: The motion will be denied at this time 

on the basis that there's no showing that service 

has been made upon the personal representative. 

We find no abuse of discretion. 

Petitioner now asks the Court to remove Mr. Kalar because he still has not posted a bond, even after receiving 

actual notice on the day of trial. The District Court is the 

proper forum for this issue that arises out of subsequent 

facts and circumstances not presently before this Court on 

appeal. 

We affirm. 
We concur: 

/A' 

Justices