No. 85-611 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

IN THE MATTER OF THE ESTATE OF 

JAMES C. LAWSON, Deceased. 

APPEAL FROM: District Court of the Seventh Judicial District, 

In and for the County of Richland, 

The Honorable H. R. Obert, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

T. R. Halvorson, Sidney, Montana 

For Respondent: 

Torger S. Oaas, Lewistown, Montana 

Submitted on Briefs: May 9, 1986 

Decided: July 17, 1986 

JUL . 1985. 

Filed: 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

The estate of James C. Lawson appeals from the Findings 

of Fact, Conclusions of Law and Order of the District Court 

of the Seventh Judicial District, Richland County which 

ordered the estate to pay a homestead allowance of $20,000 

and a family allowance of $500 per month to Karen Lawson. We 

affirm. 

James Lawson died on January 3, 1985. The estate has 

stipulated and Karen Lawson testified that she was James 

Lawson's common-law spouse. Both parties were living in 

Montana at the time of his death. They had no children of 

the marriage. 

James Lawson left a will which was informally probated 

in Richland County. Pursuant to his will, his niece Merrie 

Gangstad was appointed personal representative. 

Karen Lawson was at that time living on their ranch in 

Richland County. When James died, Karen received 

approximately $150,000 in cash and certificates of deposit 

that had been held in joint tenancy. She used the money to 

buy a ranch in Joliet. When she left the Richland property, 

she allegedly took several household and ranch items which 

she claimed were hers, her fathers, or gifts. 

Karen Lawson as surviving spouse filed a petition for 

homestead, exempt property, and family allowances. She also 

filed a petition seeking to have herself declared as sole 

owner of the property she had removed from the ranch. 

After a hearing on petition, the District Court entered 

findings of fact, conclusions of law and an order which 

awarded $20,000 for the homestead allowance, a family 
allowance of $500 per month as of January 3, 1985 and an 

exempt property allowance of $3,500. The District Court 

deferred the selection of the items of exempt property until 

all issues in the case are settled. The District Court 

stated: 

The homestead allowance and family allowance of 

Karen Lawson should not be offset by any of the 

claims of the estate against Karen Lawson. The 

estate has failed to show that it would be 

irreparably harmed in the event that the allowances 

were granted to the widow prior to the disposition 

of the other issues in later legal proceedings. 

The estate has further failed to show any legal 

right to an offset. This question is reserved. 

As a first issue, the estate of James Lawson contends 

the defenses of setoff, satisfaction, payment and abandonment 

should be available against statutory claims of homestead, 

family, and exempt property allowances. 

The homestead, exempt property, and family allowances 

are allowed by 55 72-2-801, 802, and 803, MCA, respectively. 

Section 72-2-801, MCA, states: 

A surviving spouse of a decedent who was domiciled 

in this state is entitled to a homestead allowance 

of $20,000. . . . The homestead allowance is exempt 

from and has priority over all claims against the 

estate. Homestead allowance is in addition to any 

share passing to the surviving spouse or minor or 

dependent child by the will of the decedent unless 

otherwise provided, by intestate succession, or by 

way of elective share. 

Section 72-2-802, MCA, states: 

In addition to the homestead allowance, the 

surviving spouse of a decedent who was domiciled in 

this state is entitled from the estate to value not 

exceeding $3,500 in excess of any security 

interests therein in household furniture, 

automobiles, furnishings, appliances, and personal 

effects.. . . These rights are in addition to any 

benefit or share passing to the surviving spouse or 

children by the will of the decedent unless 

otherwise provided, by intestate succession, or by 

way of elective share. 

Section 72-2-803, MCA, states: 
In addition to the right to homestead allowance and 

exempt property, if the decedent was domiciled in 

this state, the surviving spouse and minor children 

whom the decedent was obligated to support and 

children who were in fact being supported by him 

are entitled to a reasonable allowance in money out 

of the estate for their maintenance during the 

period of administration, which allowance may not 

continue for longer than 1 year if the estate is 

inadequate to discharge allowed claims. The 

allowance may be paid as a lump sum or in periodic 

installments. 

The family allowance is exempt from and has 

priority over all claims but not over the homestead 

allowance. 

The family allowance is not chargeable against any 

benefit or share passing to the surviving spouse or 

children by the will of the decedent unless 

otherwise provided, by intestate succession, or by 

way of elective share. 

The death of any person entitled to family 

allowance terminates his right to allowances not 

yet paid. 

The purpose of the allowances is to ensure that a 

surviving spouse is not left penniless and abandoned by the 

death of a spouse. The allowances are not designed to 

support the family until they share in the estate, but 

irrespective of whether they do or do not share. 3 1 

Am.Jur.2d Executors and Administrators 5 324. The allowances 

are payable out of the assets of estate and are not charged 

against the widow's share. Section 72-2-803, MCA. Because 

of the nature of allowances provided for the family, defenses 

such as offset, satisfaction, payment, or abandonment if they 

could be proved, should not be allowed as a matter of policy. 

Matter of Estate of Dunlap (1982), 199 Mont. 488, 649 ~.2d 

1303; Matter of Estate of Merkel (Mont. 1980) , 618 P.2d 872, 

The second issue raised by appellant is whether 

irreparable harm is a prerequisite to defenses of setoff, 
satisfaction, and payment. This issue has been rendered moot 

by our decision on the first issue. 

Third, the estate accuses the District Court of using 

the unresolved issues presented by the amended petition and 

amended counterpetition as a basis for ruling against the 

estate while refusing to do anything to make the issues ready 

for trial. The estate claims prejudice because of the 

dilatory handling of the estate by the court. 

The District Court correctly refused to determine if the 

estate was legally entitled to a set-off until after the 

ownership of the property had been determined, and the 

property had been valued by an appraiser. The record shows 

that the estate itself has not attempted to resolve the 

issues in this case in an expeditious manner. 

The fourth issue raised by appellants is whether the 

estate was denied a fair hearing by what it terms as repeated 

errors in setting the petition for hearing. The estate 

complains that it was not given a 14 day notice of the 

hearing on the petition for allowances as required by § 

72-1-301, MCA. The hearing was rescheduled by the parties or 

the District Court six times before the hearing was held, 

largely due to an extremely busy District Court schedule. 

Appellant claims that some of these notices were illegally 

short. However, the record shows the appellant did not 

object to the notices or request continuances at the District 

Court level and it raises the issue for the first time on 

appeal. This Court will not review issues raised for the 

first time on appeal. In re Marriage of Glass (Mont. 1985) , 

697 P.2d 976, 42 St.Rep. 328; Morse v. Cremer (1982), 200 

Mont. 71, 647 P.2d 358. 
Last, appellant takes issue with this finding of the 

District Court: 

There was testimony concerning the assets taken and 

allegedly taken from the estate by Karen Lawson. 

Inasmuch as all of the evidence was selfserving and 

not from an impartial expert witness, the Court 

will reserve ruling on the question of entitlement 

to an offset as to any offset (sic) until 

conclusion of the case. 

Appellant contends a self-serving declaration is a 

statement made out of court that is favorable to the 

interests of the declarant, but does not include testimony of 

a witness in court. The estate contends the judge ignored 

the estate's proof which consisted of cross examination of 

Karen Lawson as to the value of the assets on the Lawson 

property. The estate contends the District Court acted 

arbitrarily and capriciously and moved to disqualify the 

presiding judge for cause. 

A reading of the findings of fact shows that the 

District Court judge refused to rule on the value of personal 

property in the estate because no testimony from an impartial 

expert witness had been presented. The only testimony 

presented was that of Karen Lawson which was indeed self 

serving. The District Court acted properly on the issues 

before it, and appellant's allegations of prejudice are 

baseless. 

The findings of fact, conclusions of law and order of 

the District Court are affirmed. 

We Concur: