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: District Court of the Nineteenth Judicial District, 

In and for the County of Lincoln, The Honorable 

Robert Holter, Judge presiding. 

Counsel of Record: 

For Appellant: 

Ann C. German, Missoula, Montana 

For Respondent: 

William A. Douglas, Libby, Montana 

Submitted on Briefs: November 5, 1981 

Decided: gEg,#l lgef 

Filed: rfc 2 i 1981 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

The question in this appeal is whether a divorced wife's 

claim for money due her under a property settlement agreement is 

barred by her failure to commence an action thereon against her 

deceased former husband's estate within the time provided in the 

Uniform Probate Code. The ~istrict Court held her claim was not 

barred. We affirm. 

Norvell Reese and Stella Reese were divorced on April 7, 

1972. A property settlement agreement was incorporated in the 

decree. Under its terms Norvell received certain property, 

assumed certain tax obligations, and agreed to pay Stella $18,000 

in monthly payments of $300. 

On May 22, 1978, Stella filed an action against Norvell 

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 for July 6, 

1978, but was continued indefinitely to be called up by either 

counsel on 10 days notice. 

On September 12, 1979, Norvell died. Prior to his death 

he had remarried, and his surviving spouse, Danielle, was 

appointed personal representative of his estate . Not ice to creditors was first published on October 12, 1979. On February 7, 

1980, Stella filed a claim against his estate for $7,117 plus 

interest encompassing the money due her under the property 

settlement agreement in the divorce decree. The personal representative of 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 set aside 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 Norvellus indebtedness to 
her under the property settlement agreement. The personal representative of 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 effectively disallowed 

on April 12, 1980, 60 days after the last day for presentation of 

claims against the estate; that Stella had 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 against a 

decedent' s estate. It provides alternative methods of presentation of such claims: (1) mailing a written statement of 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 representative within the time allowed for 

presentation of claims. Section 72-3-804, MCA. 

The Code further provides in pertinent part: 

"No presentation of claim is required in regard 

to matters claimed in proceedings against the 

decedent which were pending at the 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 left for the 

Court to construe. Dunphy v. Anaconda Co. (1968), 151 Mont. 76, 

438 P.2d 660, and cases cited therein. In such case, the function of the Court is simply to ascertain and declare what 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 plain meaning 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 his death. 

Here Stella's action against Norvell 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 time of Norvell's death. Presentation of her 

claim and filing an action thereon following disallowance was not 

required under the plain language of section 72-3-804(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: 

"A judgment in a proceeding in another 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 "in another 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 in probate 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 in her civil action 

against Norvell requires vacating the judgment and dismissing the 

action. The estate fully participated in this action, the issue 

was not raised in the District Court, and the issue was not 

included in the agreed statement of the case submitted by the 

parties pursuant to Rule 9(d), M.R.App.Civ.P. 

The District Court's denial of the estate's motion to 

dismiss Stella's civil action for an accounting and to set aside 

her property conveyance is a f f irmed . 
Chief Justice I__-.