NO. 82-328 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

IN THE MATTER OF THE ESTATE OF 

CHARLES DeTIENNE, Deceased. 

Appeal from: District Court of the Fifteenth Judicial District, 

In and for the County 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\I 2 0 1983 

--- - Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Petitioners/appellants filed a petition for an order of 

distribution in intestacy nunc 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 interests of 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 

his three 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 

the petition. 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 in intestacy nunc pro tunc. 

The statute in effect at the time of the distribution was 

section 91-3516 , R.C.M. 1947. The section states: 

" . . . the court may, upon motion of any party 

interested, or upon its own motion, within 

sixty days -- af ter the rendition of the decree 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 

or fraud. " (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 1945 while the petition was filed 

in 1981, nearly thirty-six years beyond the statutory time limit. 

The District Court correctly denied the petition. 

Petitioners have suggested fraud in their appellate brief 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 sixty days of discovery of the facts of the fraud as provided in section 91-3516, R.C.M. 1947. Here, petitioners state 

the mistake was discovered July 7, 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 af f irmed .