No. 81-218 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981

NORVELL 0. REESE, and THE ESTATE OF NORVELL 0. REESE, DECEASED. Plaintiff and Appellant,

-vsSTELLA R. REESE, Defendant and Respondent.

Appeal from: DistrictCourtof the NineteenthJudicial District, 

### In and for the Countyof Lincoln, TheHonorable Robert Holter, Judge presiding.

Counselof Record: For Appellant: Ann C. German, Missoula, Montana

ForRespondent: WilliamA. Douglas, Libby, Montana

Submittedon Briefs: November 5, 1981 Decided: 

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Filed: 

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## 1981Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. The question in thisappeal 

### is whether 

### a divorced wife's claim formoney due her under a property settlement agreement is barred by her failure tocommence an action thereon against her deceased former husband's 

### estate within the 

### timeprovided in the Uniform Probate Code. The ~istrict Court held her claim 

### was not barred. We affirm. Norvell Reese and StellaReese 

### were divorced on April 7, 1972. A property settlement agreement 

### was incorporated in the decree. Under its 

### terms Norvell received certainproperty, assumed certain tax obligations, and agreed topay Stella $18,000 inmonthly payments of $300. On May 22, 1978, Stella filed an action againstNorvell seeking an accounting and to 

### set aside her conveyance of property under the property settlement agreement. Stella claimed Norvell had breached the agreement by his failure to make the required monthly payments. A hearing thereon 

### was set forJuly 6, 1978, but

### was continued indefinitely

### to be called up by either counsel on 10days notice. On September 12, 1979, Norvell died. Prior 

### to hisdeath he had remarried, and his surviving spouse, Danielle, 

### was appointed personal representative of his estate

# . Notice to 

### creditorswas firstpublished on October 12, 1979. On February 7, 1980, Stella filed 

### a claim againsthis

### estate for$7,117 plus interestencompassing themoney due her under the property settlement agreement in the divorce decree. The personal representativeof Norvell's estate took no action on Stella's claim. On November 17, 1980, a hearing was held in Stella's action for an accounting and to setaside her conveyance of property under the property settlement agreement. The District Court of Lincoln County denied the 

### estate's motion 

### to dismiss the action and entered judgment for Stella in the amount of $7,117 plus interest and costs, the amount of Norvellusindebtedness toher under the property settlement agreement. The personal representativeof Norvell's estate appeals from the denial of her motion to dismiss. The substance of the 

### estate's contention 

### is that Stella's 

### claim filed in the probate proceedings 

### was effectivelydisallowed

onApril 12, 1980, 60 days afterthe lastday forpresentation of claims against the 

### estate; that Stellahad 60 days thereafter in which to commence an action against the personal representative

on her disallowed claim; and that Stella's failure to commence such action within such 

### time forever barred her claim against the 

### estate including Stella's action for an accounting and to set aside her conveyance of property 

### to Norvell. Montana's Uniform Probate Code governs the manner of presentation, allowance and disallowance of 

### claims againsta decedent's estate. It provides alternativemethods of presentation of such claims: (1)mailing a written statementof the claim to the personal representative, (2)filing a written statement of the claim with the court, 

### or (3)commencing a proceeding against the personal representativewithin the 

### time allowed for presentation of claims. Section72-3-804, MCA. The Code further provides in pertinent part: "No presentation of claim is required inregard 

### tomatters claimed inproceedings against the decedent which 

### were pending atthe time of his death." Section 72-3-804(2), MCA. Where, as here, the language of 

### a statute 

### is plain, unambiguous, direct and certain, there is nothing leftfor the Court to construe. Dunphy v. Anaconda Co. (1968), 151Mont. 76, 438 P.2d 660, and cases cited therein. In such case, the function of the Court is simply to ascertain and declarewhat is in 

### terms or in substance contained therein, not to insert what has been omitted 

### or omit what has been inserted. Section 1-2-101, MCA; White v. White (1981), Mont

# . - P.2d t 38 St.Rep. 2041.The plainmeaning of this statute 

### is that

### a claimant 

### is not required to present a claim 

### to the personal representative of



### a decedent's estate where such claim 

### is the subject of a legal proceeding against the decedent pending at the 

### time of hisdeath. Here Stella's action againstNorvell for an accounting and to set aside a property conveyance encompassed the amounts due her under the property settlement agreement. It was pending and uncompleted at the 

### timeof Norvell's death. Presentation of her 

### claim and filing an action thereon following disallowance

### was not required under the plain language of section72-3-804(2), MCA. Finally, the judgment for the unpaid money due her under the property settlement agreement constitutes an allowance of her claims. The applicable statute

### states in pertinent part: "Ajudgment in

### a proceeding inanother court against a personal representative to enforce a 

### claim against a decedent's estate is an allowance 

### of the claim." Section 72-3-805(3) 

## , MCA. We construe the language "inanother court" to mean outside the probate court and the 

### estate proceedings. Although both the probate proceedings and Stella's pending civil suit

### were filed and heard in the District Court of Lincoln County, the court 

### was sitting inprobate in the 

### estate proceedings and functioning as a civil court in adjudicating Stella's claim for accounting and to 

### set aside the property conveyance. We do not reach the issue of whether Stella's failure to substitute the personal representative inher civil action againstNorvell requires vacating the judgment and dismissing the action. The 

### estate fullyparticipated in thisaction, the issue

was not raised in the DistrictCourt, and the issue was not included in the agreed statementof the case submitted by the partiespursuant to Rule 9(d), M.R.App.Civ.P. The DistrictCourt's denial of the estate's motion to dismiss Stella's civilaction for an accounting and 

### to set aside herproperty conveyance is a f firmed

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### Chief Justice I__-.