### No. 84-289 IN

### THE SUPREMECOURT OF THE STATEOF MONTANA 1955

GEORGE ORLANDO, as Personal Representative of the Estate of FRANKA. DONNES, Deceased, Plaintiff and Appellant,

LEE PREWETTand BARBARA PREWETT,husband and wife, Defendantsand Respondents.

APPEAL FROM: District Court of the Sixteenth Judicial District, In and for the County of Treasure, TheHonorable Charles Luedke, Judgepresiding.

COUNSELOF RECORD:

For Appellant: Kelly & 

### Halverson, P.C.; Sheehy, Prindle & 

### Finn, Billings, Montana For Respondent: Dunaway & 

### O'Connor; Vicki

### W. Dunaway, Billings, Montana

Submitted on Briefs: April 25, 1985 Decided: September 9,1985

Filed:

## St'P!i 

## 1985

ClerkMr. JusticeJohn Conway Harrison delivered the Opinion of the Court.

This 

### is an appeal from a judgment of the District Court, Thirteenth Judicial 

### District, Treasure County, Montana. The lower court ordered specificperformance of two oralagreements entered intobetween Lee and Barbara Prewett, respondents (hereafter referred to as "Prewetts")

## , and Frank A. Donnes

### , deceased. George Orlando, as personal representative of theEstate of Frank A. Donnes, appeals from that order. This case 

### is remanded to comply with this opinion. Frank A. Donnes owned a ranch ("Donnes ranch") in Treasure County. He was raised on a portion of theproperty contained in the ranch and lived most of his adult life thereon. He was once married but his wife died young and without children. Some years prior tohisdeath, Mr. Donnes ceased operatingthe ranch himself and leased 

### it under a cash rental agreement. He continued to 

### live on the ranch, however, and tohave the use of the buildings and to run a few cattle. This particular lease arrangement terminated in 1978 and from that 

### time until 1980 Mr. Donnes resumed sol-e responsibility foroperatingtheranch. In May of 1980 Mr. Donnes, advancing in years and having grown tired of working the ranch himself, approached his niece, Barbara Prewett, and asked if she and her husband Lee would be interested inmoving totheranch and operating 

### it. Thereafterthe Prewetts 

### metwith Mr. Donnes and reached

an oral agreement wherein 

### it was agreed that ifthe Prewetts moved totheDonnes ranch and leasedthe same for $18,000 per year, Mr. Donnes would leave the Prewetts an undivided one-half interest in the ranch and give them the option of

### purchasing the other half at an appraised value at the date of his death. As a result of this agreement the Prewetts bought a trailer-home and moved to the Donnes ranch in July of 1980. They testified that they would not have moved to the ranch and assumed the duties of running it if there had not been the agreementwith Mr. Donnes described ahove. InMay of 1982,Lee Prewettand Mr. Donnesmade an oral agreement for the sale of certain items of Mr. Donnes' personal property. On or about September 9, 1982, Frank Donnes was murdered. No lease payment on the ranch or payment on the purchase price of the personal property had been made to him at the time ofhis death. A 

### short period of time passed before the duly executed last will and testament of Frank A. Donneswas discovered in the home of one of his sisters in the State of Washington. Helen Carbone and Mabel Orlando, sisters of Mr. Donnes were qamed under the will as sole devisees of his entire estate. On November 16, 1982, appellant George Orlando filed this will with the Treasure County Clerk of Court along with a petition for formal probate. On January 8, 1983, the Prewetts filed creditor's claims wherein they demanded specific performance of the oral agreements made between them and Mr. Donnes. On January 19, 1983, the will of decedent

was admitted to formal probate as the valid last will and testamentof Frank

### A. Donnes. On January 24, 1983,George Orlando, appellant,having been appointed personal representativeof the Frank A. 

### Donnes estate, filed notice of disallowance of the creditor's claims and instituted an 

### action to quiet title against the Prewetts in and to the Donnes ranch and certain persona1 property. The Prewetts counterclaimed for specific performance of thetwo oral agreements 

### set forth in their creditor's claims. A bench trial was held beginning on November 7, 1.983 and on April 17, 

### 1984, the 

### District Court ruled 

### in favor of the

The dispositive issue presented by this appeal 

### is whether theoralagreements entered intobetween thePrewetts and Mr. Donnes areenforceable? The parties tothis appeal disagree over the nature of the oral agreement for the transfer of real property. Appellant contends that the agreement constituted a contract to make a will or devise; the Prewetts argue that the agreement was for the leasing, sale, and purchase of the Donnes ranch. The lower court was in accord with the Prewetts. Paragraphs 5 and 7 of 

### itsConclusions 

## -- of Law read

asfollows: 5. That the agreement between decedent and the Prewetts, asherein 

### set forth

### in Conclusion No. 1, above, was an agreement for the leasing, sale and purchase of real property and, therefore, 

### is specifically covered by Sections 30-11-111, 70-20-101, and 70-20-102, which authorize the Court to compel the specificperformance of an oral agreement for the leasing, sale and purchase of realproperty incase of partperformance thereof.

7. That Section 72-2-105 requires a contract tomake a Willordevise 

### or not to revoke a Will or devise or to die intestate to be in writing, and even assuming this statutetobe applicable to the instant case, which the Court concludes it is not, 

### it 

### is a statute of frauds provision, and part performance thereof 

### will remove the same from the operation of the statute. We disagree with these conclusions and find them inexplicable in light of paragraph 13 of the lower court'sown findings of fact. In crucial part that paragraph reads

as follows:



# ...Thereafter, in May of 1380, decedent contacted his niece, Barbara Prewett, one of the defendants herein

# . .

# .and asked whether ornot she and her husband would be interested in movinq totheranch and operating

### it. As 

### a 

### resklt of the inquiry,- the defendant, Lee Prewett, husband of Barbara Prewett, 

### met with decedent and discussed the possibilityof working out an arrangement relativetotheDonnes Ranch. A few days latera second meeting occurred, 

## - atwhich time the ~arties reached an oral agreement whereby theparties agreed that if the Prewettsmoved totheDonnes Ranch 

## -- -- and leased 

## --- the same for $18,000.00 

### per year annually, 

# . . . thatupon his death decedent would leave

## -- unto thePrewetts an undivided one-half interest in 

# - the Donnes Ranch and the Prewetts wouid have the right topurchase the other one-half ofthe~onnes Ranch atan a~~raised value - - J. L 

## -- as of the date of-death. -_-_- 

## -

# - (Emphasis added.

### 1 Further, inparagraph one of 

### itsconclusions of law the lower court restates the

### termsof the agreement: 1. That in May, 1980, decedent and the Prewetts entered into an oral agreement whereby they agreed tomove totheDonnes Ranch and lease the Donnes Ranch from decedent for the remainder of his lifetime forconsideration, initially, of $18,000.00 annually, and decedent agreed togive anundivided one-half interest in the ranch to them at the 

### time of his death and provide them with the right to buy the other one-half interest in the ranch at the appraised value as of the dateof hisdeath. Given the findings of fact, which are amply supported by the record and not challenged by either party to this appeal, it could not be more clear that the Prewetts and Mr. Donnes entered into an oral agreement for the disposition of certain of Mr. Donnes' property athis death. The vehicle for making this disposition was to be either a 

### will or a grantor trust. But despite the formalities that 

### werecontemplated 

### it 

### isnot challenged thatthe intentof the oral agreement was thatFrank Donnes should leave real property to the Prewetts at his death. The District Court committed error, and contradicted 

### its own findings of fact, when 

### it concluded that the oral agreement was for the leasing, sale and purchase of real property and therefore was covered by 

### S$ 30-11-111, 70-20-101 and 70-20-102, MCA. Section 72-2-105, MCA, 

### isthe clearly applicable statutetothe facts of thiscase and provides inpertinentpart as follows: Contracts concerning succession. (1) A contract tomake a 

### willordevise ornot to revoke a 

### will or devise or to die intestate, if executed after July 1, 1975, canbe established only

### by: (a) provisions of a 

### will stating material provisions of the contract;

(b) an express reference in a 

### willtoa contract and extrinsic evidence proving theterms of the contract; or (c) a writing signed by the decedent evidencing the contract. In the present case (1) there 

### is no provision in decedent's will statingmateria

### 1 provisions of the contract; (2) there 

### is no reference, express or otherwise, in decedent's 

### will to a contract; (3) there 

### is no writing siqnedby thedecedent evidencing the contract. The agreement between the Prewetts and Mr. Donnes by which the Prewetts 

### were to 

### receive half the ranch and firstoption to purchase the other half atthe death of Mr. Donnes does not conform in a single particular to the requirements provided by statute for the enforcement of such an agreement. Therefore the agreement must fail

# . The Prewetts argue that, even if $ 72-2-105, MCA, 

### is applicable inthepresent case, 

### itsrequirement thattherebe

a writing signed by the decedent 

### is a statute of fraudsprovision, and part performance defeats the operation of the statute of frauds. Therefore, the Prewetts continue, since they performed their part of the agreement by moving tothe ranch and assuming 

### its operation, the agreement should be enforced despite the statutoryrequirement of a writing. We reject thisargument forthe following reasons. First, thewording of 

### 5 72-2-105, MCA, 

### is absolute. A contract concerning succession can be established "only" by meeting certain requirements. "Only" has a plain and unambiguous meaning. We

### willnot graft an exception on toa statute when the language does not allow for an exception. The Prewetts would have us analogize $ 72-2-105, MCA, to 

### S 70-20-101, MCA, which requires a writing for the transfer of an interest in real property, and S 30-11-111, MCA, which requires that a contract forthe saleof real prop~rty be in writing. However, a part performance exception to the writing requirement of these two statutes 

### is specifically provided for 

### in the code. There 

### is no such exception specificallyprovided toS 72-2-105, MCA. Second, we have not been able to discover authority from any jurisdiction that has adopted the Uniform Probate Code with a succession contract provision identical or similar to S 72-2-105, MCA, holding that an oral contract to make a 

### will ordevise can be enforced on thebasis of a part performance exception to the statute of frauds. The authority and commentary 

### we can find provides the opposite. In First Gulf Beach Bank and Trust Co. v. Grubaugh (Fla.App. 1976), 330 So.2d 205, the District Court of Appeals of Florida interpreted Florida Statute S731.051 (1971), which reads inpart asfollows:731.051 Agreements to make a 

### will, requirements. (1) No agreement tomake a 

### willof real orpersonal property or togive a legacy or make a devise shall be binding or enforceable unless such agreement 

### is in writing signed in the presence of two subscribing

### witnessesby theperson whose executor oradministrator

### is sought tobe charged. In rebutting theargument thatpartperformance shalltake an oral agreement todevise real property out of the statuteof frauds, the Florida Court quoted approvingly from a previous

case: "[Section 731.0511 

### ispartof theFlorida Probate Law, and, asinthecase of 

### wills where the statutory requirements for a valid

### willmust be

### metinorder for

### it to be admitted to probate, the statute in question prescribes requirements which are necessary for 

### an agreement tomake a 

### will, in order for such an agreement to be valid and enforceable inFlorida. To hold that part performance by the promisee of an otherwise unenforceable agreement to make a 

### will would make 

### it enforceable against the executors of the promisor would defeat the purpose and intent of the legislation. This 

### is so because in most instances where a person 

### enters into an agreement with another to make a 

### will containing devises or bequests to the latter, 

### it is done in return for some consideration supplied by, or undertaking on the part of the other person, such as to care for the promisor, and in most such instances there

### isperformance, or some performance by the promisee. But 

### it was for the purpose of precluding the enforceability of agreements of that kind, unless they 

### were in writing and with subscribing witnesses, that S731.051 was enacted." First Gulf Beach Bank and Trust Co. v. Grubaugh (Fla.App.

Though the Florida statute in question was adopted before the drafting of section 2-701 (72-2-105, MCA) of the Uniform Probate Code, 

### we believe that the same reasoning animates both. One commentator has provided the following

### background and explanation of section 2-701, UPC (72-2-105, MCA): 

### One of themost common problems concerned with succession contract is whether oral succession contracts may be proved

# .

# ..Because the StatuteofWills is not applicable, in most states the basic question then has been the applicability of the Statute of Frauds. Unless the statehas a 

### specificprovision dealing with succession contracts which adequately limits the proof of oral succession contracts, the Statute of Frauds has not constituted a significant limitation on the proof of these oral contracts. Even where the Statute of Fraud's provision concernedwith the sale of real estate has been held to be applicable to succession contracts dealing with transfers of real estate, the courts have applied exceptions to the statute such as part performance and other presumptions to circumvent the Statute's proof restriction and permit the oral contracts to be proved. Depending upon one's viewpoint toward formality requirements, this circumvention of the Statute of Frauds may or may not be beneficial. Notwithstanding this value judgment, the ineffectiveness of the Statute of Frauds as a bar to proof of succession contract has significantly encouraged litigation over thesematters.

Clearly, this provision [2-701, UPC; 72-2-105, MCA] is intended to substantial-ly limit the proof of succession contractsand towash away all of the authority and decisions dealing with the application of the Statute of Frauds and its exceptions. As with the adoption of any new formalistic requirement, the expectations of some persons will be destroyed. Considering that one of the parties to the contract is no longer available to testify, however, it would appear to be good public policy to require some form of written evidence that the contract actually exists. Lawrence H. 

### Averill, Jr., Uniform Probate Code in a Nutshell,We do not agree with the statement in the Prewetts' brief that "[tlhere 

### is no sound argument why the doctrineof part performance should apply any 

### less to Section 72-2-105, M.C.A., than 

### it would toany other provisions of the Statute of Frauds which are scattered throughout our Code asMontana has always followed thisdoctrine." In addition 

### tothe sound argument provided by the Florida court and the learned commentator quoted above, 

### we note this additional rationale for not allowing a part performance exception to § 72-2-105, MCA

# . The many opportunities for fraud and perjury inestablishingan oraltestament of personal property led totheprovision of the statute of frauds which regulates nuncupative testaments. Likewise, the many opportunities which exist for fraud and perjury in establishing an oral contract to make a testament, have led some states toenact statuteswhich deal with contracts to make testaments; and these statutes usually provide that contracts tomake testaments must be in writing or must be proved by writing

# .. . Written evidence 

### is more necessary in contracts of this sort than in the classes of contracts covered by the ordinary provisions of the statute of frauds. An unscrupulous claimant, who can secure perjured evidence, can 

### set up and prove anoralcontract. The deathof the promisor makes 

### it impossible to contradict the testimony to the effect that he made such promise; and the fact thatthetransaction never happened makes 

### it all the harder todisprove 

### it if the guilty parties have beencareful tomake their story fitthepossibilitiesof 

### time and place. In spiteof the fact that 

### it also operates to the detriment of an ignorant or confiding promisee, legislation of this sort should be adopted generally. 1Bowe-Parker, Paqe on Wills§ 10.10. We have recognized before that contracts tomake 

### wills

are looked on with disfavor because at the 

### time of

### enforcement one of the parties is dead and obviously cannot confirm or deny the existence of the contract. Lazetich 

### v. Miller (Mont. 1983), 671 P.2d 15, 40 St.Rep. 1626; Craddock

TT. 

### Berryman (1982), 198 Mont. 155, 645 P.2d 399. It was to tighten the methods by which such contracts could be proved that section 2-701, UPCwas drafted and adopted in Montana as 72-2-105,MCA. To recognize a part performance exception to this statute would once again create the uncertainties and litigation that the statute was designed to reduce and eliminate. Accordingly, the appellant is entitled to a judgmentquieting title to the realproperty involved in this action. The oral agreement between the Prewetts and Mr. Donnes for the making of a devise is without force and effect, and the judgment of the lower court on this issue is hereby remanded to comply with this opinion. The judgment of the District Court is reversedand the case is remanded tocomplywith 

### this opinion.

We 

### concur: /