No. 84-289 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1955 

GEORGE ORLANDO, as Personal Representative 

of the Estate of FRANK A. DONNES, Deceased, 

Plaintiff and Appellant, 

LEE PREWETT and BARBARA PREWETT, husband 

and wife, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Sixteenth Judicial District, 

In and for the County of Treasure, 

The Honorable Charles Luedke, Judge presiding. 

COUNSEL OF 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 

Clerk 
Mr. Justice John 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 specific performance of two 

oral agreements entered into between Lee and Barbara Prewett, 

respondents (hereafter referred to as "Prewetts") , and Frank 

A. Donnes , deceased. George Orlando, as personal 

representative of the Estate 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 the property 

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 to his death, Mr. Donnes 

ceased operating the ranch himself and leased it under a cash 

rental agreement. He continued to live on the ranch, 

however, and to have 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 for operating the ranch. 

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 in moving to the ranch and operating 

it. Thereafter the Prewetts met with Mr. Donnes and reached 

an oral agreement wherein it was agreed that if the Prewetts 

moved to the Donnes ranch and leased the 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 agreement with Mr. Donnes described ahove. 

In May of 1982, Lee Prewett and Mr. Donnes made 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 of his death. 

A short period of time passed before the duly executed 

last will and testament of Frank A. Donnes was 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 

testament of Frank A. Donnes. 

On January 24, 1983, George Orlando, appellant, having 

been appointed personal representative of 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 the 
two 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 the oral agreements entered into between the Prewetts 

and Mr. Donnes are enforceable? 

The parties to this 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 its Conclusions -- of Law read 

as follows: 

5. That the agreement between decedent 

and the Prewetts, as herein 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 

specific performance of an oral agreement 

for the leasing, sale and purchase of 

real property in case of part performance 

thereof. 

7. That Section 72-2-105 requires a 

contract to make a Will or devise or not 

to revoke a Will or devise or to die 

intestate to be in writing, and even 

assuming this statute to be 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's 
own 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 or not she 

and her husband would be interested in 

movinq to the ranch and operating it. As 

a resklt of the inquiry,- the defendant, 

Lee Prewett, husband of Barbara Prewett, 

met with decedent and discussed the 

possibility of working out an arrangement 

relative to the Donnes Ranch. A few days 

later a second meeting occurred, - at which 

time the ~arties reached an oral 

agreement whereby the parties agreed that 

-- if the Prewetts moved -- to the Donnes Ranch 

and leased --- the same for $18,000.00 per 

year annually, . . . that upon his death 

decedent would leave -- unto the Prewetts an 

undivided one-ha lf interest in - the 

Donnes Ranch and the Prewetts wouid have 

the right to purchase the other one-half 

ofthe - - ~onnes Ranch at an a~~raised value -- J. L 

as of the date of-death. -_-_- - - (Emphasis 

added. 1 

Further, in paragraph one of its conclusions of law the 

lower court restates the terms of the agreement: 

1. That in May, 1980, decedent and the 

Prewetts entered into an oral agreement 

whereby they agreed to move to the Donnes 

Ranch and lease the Donnes Ranch from 

decedent for the remainder of his 

lifetime for consideration, initially, of 

$18,000.00 annually, and decedent agreed 

to give an undivided 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 

date of his death. 

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 at his death. The vehicle 

for making this disposition was to be either a will or a 

grantor trust. But despite the formalities that were 
contemplated it is not challenged that the intent of the oral 

agreement was that Frank 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, is the clearly applicable statute to the facts 

of this case and provides in pertinent part as follows: 

Contracts concerning succession. (1) A 

contract to make a will or devise or not 

to revoke a will or devise or to die 

intestate, if executed after July 1, 

1975, can be established only by: 

(a) provisions of a will stating 

material provisions of the contract; 

(b) an express reference in a will to a 

contract and extrinsic evidence proving 

the terms 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 stating materia 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 

siqned by the decedent evidencing the contract. The 

agreement between the Prewetts and Mr. Donnes by which the 

Prewetts were to receive half the ranch and first option to 

purchase the other half at the 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 in the present case, its requirement that there be 

a writing signed by the decedent is a statute of frauds 
provision, 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 to the 

ranch and assuming its operation, the agreement should be 

enforced despite the statutory requirement of a writing. We 

reject this argument for the following reasons. 

First, the wording 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 will not graft an exception on to a 

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 for the sale of 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 

specifically provided to S 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 or devise can be enforced on the basis 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 in part as follows: 
731.051 Agreements to make a will, 

requirements. 

(1) No agreement to make a will of real 

or personal property or to give a legacy 

or make a devise shall be binding or 

enforceable unless such agreement is in 

writing signed in the presence of two 

subscribing witnesses by the person whose 

executor or administrator is sought to be 

charged. 

In rebutting the argument that part performance shall take an 

oral agreement to devise real property out of the statute of 

frauds, the Florida Court quoted approvingly from a previous 

case: 

"[Section 731.0511 is part of the Florida 

Probate Law, and, as in the case of wills 

where the statutory requirements for a 

valid will must be met in order for it to 

be admitted to probate, the statute in 

question prescribes requirements which 

are necessary for an agreement to make a 

will, in order for such an agreement to 

be valid and enforceable in Florida. 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 is performance, 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 the most common problems concerned 

with succession contract is whether oral 

succession contracts may be 

proved . . . Because the Statute of Wills 

is not applicable, in most states the 

basic question then has been the 

applicability of the Statute of Frauds. 

Unless the state has a specific provision 

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 concerned with 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 these matters. 

Clearly, this provision [2-701, UPC; 

72-2-105, MCA] is intended to 

substantial-ly limit the proof of 

succession contracts and to wash 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 doctrine of 

part performance should apply any less to Section 72-2-105, 

M.C.A., than it would to any other provisions of the Statute 

of Frauds which are scattered throughout our Code as Montana 

has always followed this doctrine." In addition to the 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 in establishing an oral testament 

of personal property led to the provision 

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 to enact statutes which deal 

with contracts to make testaments; and 

these statutes usually provide that 

contracts to make 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 an oral contract. The death of 

the promisor makes it impossible to 

contradict the testimony to the effect 

that he made such promise; and the fact 

that the transaction never happened makes 

it all the harder to disprove it if the 

guilty parties have been careful to make 

their story fit the possibilities of time 

and place. In spite of the fact that it 

also operates to the detriment of an 

ignorant or confiding promisee, 

legislation of this sort should be 

adopted generally. 

1 Bowe-Parker, Paqe on Wills § 10.10. 

We have recognized before that contracts to make 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, UPC was 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 

judgment quieting title to the real property 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 reversed and 

the case is remanded to comply with this opinion. 

We concur: /