No. 13811 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

EDDIE A. ZIEGLER and KATHRYN ZIEGLER, 

Plaintiff and Appellant, 

-vsSTEPHEN A. KRAMER et al., 

Defendant and Respondent. 

Appeal from: District Court of the Thirteenth Judicial 

District, , . 

Honorable C. B. Sande, Judge presiding. 

Counsel of Record: 

For Appellant: 

Joseph P. Hennessey argued, Billings, Montana 

For Respondent: 

Hibbs, Sweeney and Colberg, Billings, Montana 

Maurice R. Colberg, Jr. argued, Billings, Montana 

Submitted: December 6, 1977 

Decided: - '; 1977 

- Filed: - 727 
Mr. Chief Justice Paul G. Hatfield delivered the Opinion of the 

Court. 

Plaintiffs appeal from an order of the District Court, 

Yellowstone County, denying plaintiffs' motion to file an 

amended and supplemental complaint and granting defendant's 

motion for summary judgment. 

On April 8, 1976, defendant and respondent, personal 

representative of the estate of Rita G. Klein, published a 

first "notice to creditors" of the decedent's estate, pursuant 

to section 91A-3-803, R.C.M. 1947. Plaintiffs filed a creditors' 

claim against decedent's estate, alleging that the estate was 

indebted to plaintiffs in an undetermined amount for services 

rendered to decedent, and that this claim was secured by a writing, 

signed by the decedent, which said that decedent gave plaintiffs 

"ALL MONIES ON DEPOSIT AT THE FIRST NATIONAL BANK AND TRUST 

COMPANY, BILLINGS, MONTANA." Defendant, personal representative, 

rejected the claim and plaintiffs then filed an action in District 

Court, Yellowstone County, on the same contract theory that they 

had set forth in their creditors' claim. 

Defendant submitted a motion to dismiss, which was denied 

by the District Court. Defendant then filed his answer, and based 

on plaintiffs' testimony in depositions, moved for summary judgment. In the depositions, plaintiffs admitted that the services 

on which they based their claim were neighborly services which 

they had performed for the decedent without any expectation of 

payment. Defendant supported his motion for summary judgment 

with a brief in which he cited authorities for the proposition 

that " * * * when services are rendered without expectation of 

compensation on the part of the one rendering the service * * * 

no contract is implied." 

Plaintiffs thereafter filed a motion to amend and add 

supplemental complaint, pursuant to Rule 15(a) and (d), M.R.civ.P. 
In their proposed supplemental complaint, plaintiffs sought 

to add a theory of recovery under gift causa mortis to their 

contract theory. In support of their gift causa mortis claim, 

plaintiffs submitted, as an exhibit, the same document, signed 

by decedent, which had supported their contract claim. Defendant filed a brief in opposition to plaintiffs1 motion to amend 

and supplement their complaint, asserting that there was no 

claim of gift in either the claim against the estate or the 

original District Court complaint. Defendant asserted that the 

complaint based on gift causa mortis was therefore barred by 

the statute of limitations in section 91~-3-$$08, R.C.M. 1947, 

because it was a new claim which was not filed within four months 

of the first notice to creditors of decedent's estate. The first 

notice to creditors was published on April 8, 1976; the proposed 

amended and supplemental complaint was filed on February 23, 1977. 

District Judge Charles Luedke denied plaintiffs1 motion 

to file an amended and supplemental complaint and granted defendant's motion for summary judgment. 

The issues raised by plaintiffs in this appeal are: 

1. Did the district judge abuse his discretion in denying plaintiffs' motion to submit an amended and supplemental 

complaint? 

2. Did the district judge abuse his discretion in 

granting defendant's motion for summary judgment? 

We shall discuss these issues in reverse order. 

Our inquiry as to the propriety of the summary judgment 

order focuses on whether l' * * * the pleadings, depositi~ns * * * 

and admissions on file * * * show that there is no genuine issue 

as to any material fact and that the moving party is entitled to 

judgment as a matter of law. * * *v Rule 56(c), M.R.Civ.P. 

In Montana, by statute, filing a creditor's claim with 
the estate within four months of the first publication of 

notice to creditors is a prerequisite to bringing an action on 

the claim in District Court. Section 91A-3-803, R.C.M. 1947. 

In this case, the only claim which plaintiff filed on the estate within the four month statute of limitations was based on 

a contract theory "That said estate is indebted to (appellants) 

* * * for services rendered over a period of nine years. * * *" 

In depositions, plaintiffs stated that the services rendered to 

decedent upon which they based their claim, included heavy work, 

shoveling sidewalks, trimming hedges, taking decedent to the 

stores for shopping, and helping decedent with her screens and 

storm windows. 

Plaintiffs, in their depositions, admitted that they had 

performed the services for decedent with no expectation of payment; rather, plaintiffs indicated that they performed the services 

out of kindness for an elderly neighbor. However laudable plaintiffs' actions on behalf of decedent may have been, there was no 

implied contract of payment since there was no understanding between plaintiffs and decedent that plaintiffs would receive payment as consideration for the services they performed. In denying a plaintiffs' contract claim against an estate for services 

rendered to a decedent, the California Court of Appeals stated: 

" * * * If at the time the services were originally rendered they were intended to be gratuitous or as an accomodation, motivated by 

friendship, kindness, or some other significant 

relationship existing between the parties, and 

were tendered without any expectation of remuneration, they cannot afterwards be converted 

into an obligation to pay their reasonable 

value under the theory of an implied contract. * * *" 

Payne v. Bank of America National Trust and Savings Assn. (1954)) 

128 Cal.App.2d 295, 275 P.2d 128, 134. See also, Kershaw v. 

Tracy Collins Bank and Trust Co. (1977) Utah 2d , 561 P.2d 

683, 685; 54 A.L.R. 548. Because in this case there was, as a 
matter of law, no implied contract for payment, summary judgment 

was properly granted on the contract claim. 

Nor did the district judge abuse his discretion in 

denying appellants' motion to amend and supplement their District Court complaint to include a gift theory of recovery. The 

four month statute of limitations in section 91A-3-803 was enacted 

to expedite the closing of decedents' estates. The claim sued 

upon in District Court must be within the scope of the claim presented to the executor. 

" * * * The plaintiff may not prove a cause 

of action entirely other than or different from 

that stated in his claim, and clearly cannot 

recover upon evidence showing an entirely different claim. As the Montana court [in Brown v. 

Daly (1906), 33 Mont. 523, 84 P. 8831 tersely 

remarks regarding the claim upon which an action 

may be maintained: 'What claim? It goes without 

saying that it is the identical claim which was 

presented; otherwise the law would be a dead 

letter. "' Banc.Prob.Prac.2d S901. 

Here the claim sued upon (gift) is not within the scope 

of the claim (contract) presented to the executor. See Brown v. 

Midland Nat. Bank (1967), 150 Mont. 422, 435 P.2d 878 (claim in 

debt materially different from court action based on oral contract to bequeath); Brion v. Brown (1959), 135 Mont. 356, 340 P.2d 

539 (claim in quantum meruit materially different from court 

action based on contract to deed or devise real property). 

Plaintiffs maintain that under Rule 15(a), M.R.Civ.P., 

the judge was required to allow them to amend their complaint so 

as to include a gift theory of recovery. Rule 15(a) provides 

that, after a defendant has served his answer, a plaintiff may 

amend his complaint by leave of court, " * * * and leave shall 

be freely given when justice so requires. * * *" Plaintiffs note 

that the fact that a proposed amendment of the complaint would 

change the legal theory upon which the action is brought is not 

in itself a valid reason for denying a motion to amend. Prentice 
Lumber Co. v. Hukill (1972), 161 Mont. 8, 504 P.2d 277. 

While we agree with plaintiffs that the purpose of 

Rule 15(a), M.R.Civ.P., is to encourage the resolution of cases 

on the merits by freely allowing amendment of complaints "when 

justice so requires", we do not believe that that is in issue 

in this case. 

It is irrelevant whether plaintiffs bring a District 

Court claim based on the contract theory of their original 

complaint or on the gift theory in their proposed amended complaint; the legal theory of their District Court complaint 

cannot alter the fact that the only claim which plaintiffs 

timely filed with the personal representative against the decedent's estate was a contract claim. A District Court complaint 

against the personal representative based in contract is within 

the scope of the creditor's claim filed against the estate but, 

for the previously discussed reasons, fails as a matter of law. 

A complaint brought on a gift theory fails because it is a 

material variance from the contract claim brought against the 

estate. 

The order of the District Court denying plaintiff's 

motion to submit an amended and supplemental complaint and granting defendant's motion for summary judgment is affirmed. 

I /- 

Chief Justice I) 

We concur: 

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Justices 

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