No. 83-262 

IN THE SUPREFE COURT OF THE STATE OF MONTANA 

1983 

IN THE MATTER OF THE ESTATE OF 

LESLIE J. TAYLOR, a/k/a LES TAYLOR, 

Deceased. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of ~hbkceau, 

The Honorable John M. McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Robert J. Emmons argued for Thomas & Anna Tope, 

Great Falls, Montana 

For Respondent: 

Jardine, Stephenson, Blewett & Weaver; Alexander 

Blewett I11 argued for Lillian Taylor, Great Falls, 

Montana 

Submitted: December 5, 1983 

Decided: January 5, 1984 

Filed: 

.:c !$ ,? * '984 

Clerk 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

The alleged residuary leqatee and devisee under a 

purported will appeals dismissal of his petition to probate 

the will. We affirm the dismissal. 

In May 1974 Leslie Taylor executed his will. The will 

left $10,000 to his sister Lillian Taylor, respondent herein; 

approximately 240 acres of land to his friend Rodney Fraser; 

and the remainder of his estate to his friends, Tom Tope and 

Anna Tope, husband a.nd wife, in equal shares. Tom Tope was 

named executor. The estate was later appraised at over 

one-half million dollars. 

In March 1975 Leslie Taylor died. In April 1975 

Lillian filed a petition for letters of administration allegin.g that Leslie had died intestate. Lillian was appointed 

personal representative. The inventory and appraisal of the 

estate showed assets of $502,567.29. In March 1976, the 

fina.1 decree of distribution was entered d-istributing the 

entire estate to Lillian, Taylor's only heir under intestate 

laws of succession. 

Thereafter, Lillian deeded the 240 acres to Rodney 

Fraser and paid the Topes $200,000 between 1978 and 1982. 

In November 1982 Tom Tope filed his petition to probate 

Leslie Taylor's will. In substance, he alleged that under 

the terms of Taylor's will, he and his wife were entitled to 

the entire estate except for $10,000 to Lillian and 240 acres 

to Rodney Fraser. Tope alleged that after execution of the 

will, Leslie Taylor told Tope that he had explained its terms 

to Lillian and Lillian had agreed to the terms. Tope further 

alleged that after Taylor's death, Lillian informed the Topes 

that Taylor had made some minor changes in his will and that 

she would abide by the will as best she could. 
Finally, Tope alleged that Lillian led him and his wife 

to believe that they would receive the assets provided for 

them in the will even though the will was not probated. Tope 

alleged that in 1982 Lillian indicated to him that he might 

not receive any more of the assets provided in the will which 

led him to file the petition for probate over seven and 

one-half years after Leslie Taylor's death. 

After the petition for probate was filed, the District 

Court ordered Lillian to produce the will. She did not 

produce it, apparently claiming that Leslie had burned it 

prior to his death. 

Lillian filed a motion to dismiss Tope's petition to 

probate the will contending that probate was barred by the 

three-year statute of limitations in the probate code (section 72-3-122, MCA). 

The District Court entered findings of fact, conclusions of law and its order dismissing Tope's petition for 

probate of the will. The same was entered solely on the 

pleadings without consideration of the depositions, any 

evidentiary hearings, or a motion for summary judgment. In 

sum, the District Court found that the pleadings "alleged 

facts setting forth estoppel as to the limitations statute" 

hut that the the three-year statute of limitations in the 

probate code created a final presumption of intestacy barring 

a petition for probate filed over seven and one-half years 

after Taylor's death. Section 72-3-122, MCA. 

The fundamental issue on appeal can be stated in this 

language : 

Does the three-year limitation on filing a petition to 

probate a will bar a later filing based on equitable estoppel? We answer "yes," leaving petitioner to his remedy 
aga.inst the individual whose words and conduct allegedly 

damaged him. 

The statute of limitations for probating wills is set 

forth in Montana's probate code which we quote in pertinent 

part : 

"Time limit - on probate, testacy, - and 

a.ppointment proceedings -- exceptions. 

(1) No iGorma1 probate or amointment 

proceeding or formal testacy oGL appointment proceeding, other than a proceeding 

to probate a will previously probated at 

the testator's domicile and appointment 

proceedings relating to an estate in 

which there has been a prior appointment, 

may be commenced more than 3 years after 

the decedent's death, except: 

"(a) if a previous proceeding was dismissed because of doubt about the fact of 

the decedent's death, appropriate probate, appointment, or testacy proceedings 

may be maintained at any time thereafter 

upon a finding that the dececent's death 

occurred prior to the initiation of the 

previous proceeding and the applicant or 

petitioner has not delayed. unduly in 

initiating the subsequent proceeding; 

"(b) appropriate probate, appointment, or 

testacy proceedings may be maintianed in 

relation to the estate of an absent, 

disappeared, or missing person for whose 

estate a conservator has been appointed 

at any time within 3 years after the 

conservator becomes able to establish the 

death of the protected person; and 

" (c) a proceeding to contest an informal-- 

1-y probated will and to secure appointment of the person with legal priority 

for appointment in the event the contest 

is successful may be commenced within the 

later of 12 months from the informal 

probate or 3 years from the decedent's 

death." Section 72-3-122, MCA. 

The statute is clear and unambiguous. None of the 

exceptions to the three-year time limit on commencing a 

proceeding to probate a will apply to this case. The statute 

provides no exception to the three-year limitation for delay 

allegedly caused by misrepresentations of another party 
involved in the estate nor does it estop that party from 

asserting the statutory bar. 

The statute is taken directly from the Uniform Probate 

Code, Section 3-108. It establishes a basic limitation of 

three years for determination of whether a decedent left a 

will, to commence proceedings to prove the same, and to 

commence proceedings to administer the estate thereunder. 

The Comment to this provision of the statute states in part: 

"If no will is probated within three 

years from death, the section has the 

effect of making the assumption of intestacy final. . . ." 

The District Court correctly so held. 

The purpose and rationale behind this three-year time 

limitation is clea.rly discernable from the statement of 

purposes underlying Monta.nals Uniform Probate Code: 

" (2) The underlying purposes and policies 

of this code are to: 

" (c) promote a speedy and efficient 

system for liquidating the estate of the 

decedent and making distribution to its 

SUCC~~SO~~." Section 72-1-102 (2) (c) , MCA . 

Montana's Uniform Probate Code establishes a strong 

public policy to administer estates of decedents expeditiouslv and wi.thout unreasonable delay. Such public policy would 

be rendered meaningless and illusory if personal agreements 

and disputes between persons involved in estate administration could be litigated by raising estoppel as a bar to time 

lj-mitations in the probate code many years later. If such 

were permissible, there would be no finality t.o adminstration 

and distribution of estates. The rights of third person 

distributees of estate assets could be affected or compromised many years later. 
The framers of the Uniform Probate Code and the Montana 

legislature were not insensitive to situations involving 

fraud in connection with the administration of estates. A 

Montana statute provides in pertinent part: 

"Remedies for fraud -- statute of - limitstions . (1) Whenever fraud has been 

perpetrated in connection with any proceeding or in any statement filed under 

this code or if fraud is used to avoid or 

circumvent the provisions or purposes of 

this code, any person injured thereby may 

obtain appropriate relief including 

restitution against the perpetrator of 

the fraud or any person benefiting from 

the fraud, whether innocent or not (other 

than a bona fide purchaser for value and 

without notice)." Section 72-1-111 (I), 

MCA . 

Only by construing the language "appropriate relief including 

restitution against the perpetrator" to mean individual 

relief against the perpetrator by claims for relief outside 

the Uniform Probate Code can the foregoing statute be harmonized with the purposes and policy underlying the Code as 

expressed in section 72-1-102 (2) (c) , MCA, heretofore quoted. 

Decisions from other jurisdictions support the view 

that oral agreements between beneficiaries of estates do not 

bar time limitations for filing applications to probate 

wills. The Texas Court of Civil Appeals has so held on 

public policy grounds. Brown Tr. Byrd (Tex.Civ.App. 1974) , 

512 S.W. 2d 753. The Missouri Supreme Court so held, ruling 

that the primary purpose of a special statute of limitations 

on filing a petition for probate was to quiet estates and 

avoid late litigation. State ex rel. Bier v. Bigger (1944), 

352 No. 502, 178 S.W.2d 347. In accord: In re Estate of 

Politte (M0.~1970), 460 S.W.2d 733. 

App Tope argues that equitable estoppel to bar the 

three-year statute of limitations on filing a petition for 

probate is an available remedy, citing numerous authority 
from Montana. and elsewhere in support. Section 26-1-601 13) , 

MCA; section 1-3-208, MCA; Thompson v. Nebraska Mobile Homes 

Corp. (Mont. 1982), 647 P.2d 334, 39 St.Rep. 1094; Fraunhofer 

V. Price (1979), 182 Mont. 7, 534 P.2d 324; LaForest vSW 

Texaco, Inc. (1978), 179 Mont. 42, 585 ~.2d 1318; Keneco and 

Kenik v. Cantrell (1977), 174 Mont. 130, 568 ~.2d 1225; 

Howeth v. D. A. Davidson Co. (1973), 163 Mont. 355, 517 P.2d 

722; La.pke v. Hunt (1968), 151 Mont. 450, 443 P.2d 493; Hiqby 

v. Hooper (1950), 124 Mont. 331, 221 P.2d 1043; ~indblom v. 

Employers Assurance Corporation (1930), 88 Mont. 488, 295 P. 

1003 and cases cited therein; Schroeder v. Young (1896), 161 

U.S. 334, 16 S.Ct. 512, 40 L.Ed.721; Ca.rruth v. Fritch (Cal. 

1951), 224 P.2d 702, 24 ALR2d 1404, 1414 and authorities 

cited therein; State v. Hart Motor Express i inn. 1964) , 132 

N.W.2d 391; 43 ALR 3d 435 and cited references therein; 51 

Am.Jur.2d Limitations - of Actions, $S 431, 433 and. 436. 

We decline to apply these cited authorities to uphold 

Tope's claim that equitable estoppel bars application of the 

three-year statute of limitations in Montana's probate code. 

These authorities either involve general statutes of limitations unlike the special statute of limitations in the probate code or cases in which the plaintiff or petitioner have 

no effective remedy other than equitable estoppel available 

to him, unlike the instant case. Here, we are simply leaving 

Tope to his remedies against Lillian by way of an action 

based on misrepresentation, constructive trust, breach of 

contract, fraud or any other remedy available to him. In so 

doing, we uphold the three-year statute of limitations in the 

probate code and carry out its stated purpose and policy of 

promoting a speedy and efficient system for liquidating and 

distributing the estate. Section 72-1-102(2) (c), MCA. 
Appellant also argues that equitable estoppel barring 

assertion of the three-year time limitation on proceedings to 

probate a will is a jury issue and the District Court was in 

error in ruling it inapplicable as a matter of law. Mot so. 

We agree that Tope has the burden of proving facts to support 

application of the legal principle of equitable estoppel and 

that such proof creates a jury issue. However, the District 

Court here ruled as a matter of law that the facts plead by 

Tope created an equitable estoppel, but that nonetheless the 

three-year statute of limitations barred Tope's petition as a 

matter of law. We concur. 

Tope further contends that equitable estoppel bars the 

three-year time limitation on a petition to probate a will 

because the principles of law and equity supplement the 

provisions of the probate code, citing section 72-1-104, MCA. 

However, such principles do not supersede provisions of the 

probate code where the stated purpose and policy is to promote a speedy, efficient system for liquidating and distributing estates. It is difficult to see just how the filing of 

a petition for probate some seven and one-half years after 

intestate administration of the estate was commenced and some 

six and one-half years after the final decree of distribution 

of the estate property was entered promotes this purpose or 

just how law and equity favor one who has remained silent for 

years relying on an alleged verbal agreement with another 

beneficiary. What principles of law and equity require 

allowing this attempt several years later to reopen an estate 

rather than requiring Tope to seek his remedy against Lillian 

personally? None of which we are aware. 

Finally, appellant argues that Montana's Uniform Probate Code prohibits impairment of any accrued right he had 
prior to July 1, 1975, the effective date of the Code, citing 

section 72-1-S, MCA. This issue was never raised in the 

I 07 

District Court or i.n any brief on appeal. It was first 

raised during oral argument on appeal. We will not consider 

an issue raised for the first time on appeal. Johnson v. 

Johnson (1977), 172 Mont. 94, 560 P.2d 1331; Bull Creek Oil 

and Gas Development v. Bethex (1953), 127 Mont. 222, 258 P.2d 

960; Mitchell v. Garfield County (1949), 123 Mont. 115, 208 

P.2d 497. We note in passing that the accrued right that Tope 

had on July 1, 1975, was the right to offer the purported 

will for probate and under the prior probate code in effect 

until that date the decree of distribution ". . . is conclusive as to the rights of heirs, legatees, or devisees, subject only to be reversed, set aside, or modified on appeal." 

Section 91-3902, R.C.M. 1947. 

We have considered all other contentions, argumen.ts and 

authorities raised by the parties, consider that none require 

further comment in this opinion, and find that none would 

a-lter our ruling herein. 

In sum, we hold as a matter of law that equitable 

estoppel will not permit the filing of a petition to probate 

a will in contravention of the three-year time limit in 

section 72-3-122, MCA. 

Affirmed. 

3J--4.ap &d 

Chief Justice 
We concur: