NO. 82-328 INTHE SUPREME COURT OF THE STATE OFMONTANA 1983

INTHE MATTER OF THE ESTATE OF CHARLES DeTIENNE, Deceased.

Appeal from: DistrictCourt of the Fifteenth Judicial District, In and fortheCounty of Roosevelt Honorable M. James Sorte, Judge presiding. Counsel of Record: For Appellant: Garden, McCann & Schuster, Wolf Point, Montana Gerard M. Schuster, Wolf Point, Montana For Respondent: McIntee & Whisenand, Williston, North Dakota

Submitted on briefs: December 9, 1982 Decided: January 29, 1983

Filed: 

## JAi\I20

## 1983

--- - ClerkMr. Justice John Conway Harrison delivered the Opinion of the Court. Petitioners/appellants filed a petition for an order of distribution in intestacynunc pro tunc in the District Court of the Fifteenth Judicial District in and for the County of Roosevelt. The petition 

### was heard on June 14, 1982, and on July 8, 1982, the District Court ordered the petition be denied. Petitioners appeal. Elvina predeceased her father, Charles DeTienne who died intestate in 1945. Charles DeTiennels 

### estate, comprised of the family farm, was distributed to the six surviving DeTienne children. Neither Elvina nor her heirs 

### were mentioned in the intestacy proceedings. Shortly after the estate 

### was settled, Young DeTienne purchased the interestsof the remaining DeTienne children at a public auction. Young DeTienne sold 

### a small portion of the farm land in 1945 and worked the 

### rest of the land until he retired. Upon his retirement he sold the farm land 

### to histhree children. On March 11, 1982, Elvina Brenden's heirs petitioned the District Court for order of distribution in intestacy nunc pro tunc. Petitioners 

### claim the decree of distribution of Charles DeTiennels 

### estate "mistakenly excludes the heirs of Elvina DeTienne Brendenls beneficiaries of said estate," and that the mistake 

### was discovered July 

### 7, 1981. The District Court denied thepetition. Petitioners appeal. The substance of the issues raised on appeal 

### is whether the District Court erred in denying the petition for an order of distribution inintestacynunc pro tunc. The statute in effect at the time of the distribution 

### was section91-3516

### ,R.C.M. 1947. The section states: 

### "

# . ..the courtmay, upon motion of anyparty interested, 

### or upon 

### its own motion, within sixtydaysaf

### ter the renditionofthedecree 

### 15 -- - -- - 

### cases of inadvertence, 

### or within sixty days - - after the discovery of the facts constituting the fraud, reopen 

### or set aside any decree of any settlement on the grounds of inadvertence orfraud.

### " (Emphasis supplied.)Here, petitioners have claimed the distribution of Charles DeTiennels estate, "mistakenly excludes the heirs of Elvina DeTienne." To 

### rest upon a 

### claim of mistake, a petition must be filed within sixty days after the rendition of the decree to comply with the effective statute, section 91-3516, R.C.M. 1947. Here, the decree 

### was entered in 1945while the petition

### was filed in 1981, nearly thirty-six years beyond the statutory

### timelimit. The District Court correctlydenied the petition. Petitionershave suggested fraud intheir appellatebrief yet fraud 

### was not alleged specifically in their petition 

### as required by Rule 9(b), M.R.Civ.P. We note, however, that any allegation of fraud 

### was required 

### to be brought before the District Court within sixtydays of discovery of the factsof the fraud 

### as provided in section 91-3516, R.C.M. 1947. 

### Here, petitioners 

### state themistake 

### was discovered July7, 1981, yet the petition

### was not filed until March 11, 1982. Even if there 

### was mistake which could constitute fraud, the petition 

### was not timely filed. Judgment is affirmed

# .