No. 83-262 IN THE SUPREFE COURT OF THE STATE OF MONTANA 1983

INTHE MATTER OF THE ESTATE OF LESLIE J. TAYLOR, a/k/a LES TAYLOR, Deceased.

APPEAL FROM: DistrictCourtof theEighthJudicial District, Inand for theCounty of ~hbkceau, The Honorable John M. McCarvel, Judge presiding.

COUNSEL OF RECORD:

ForAppellant: RobertJ. Emmons argued for Thomas & Anna Tope, GreatFalls, Montana

ForRespondent: Jardine, Stephenson, Blewett & Weaver; Alexander Blewett I11 argued for LillianTaylor, GreatFalls, Montana

Submitted: December 5, 1983

Decided: January 5, 1984

Filed:

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### '984

ClerkMr. 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 thewill. We affirm the dismissal. In May 1974 Leslie Taylor executed hiswill. The will left $10,000 to his sister Lillian Taylor, respondentherein; 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.ndwife, 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 apetition for letters of administration allegin.gthat 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.1decree of distribution was entered d-istributingthe 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 1982Tom 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 Lillianhad 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 shewould abideby the will asbest she could.Finally,Tope alleged that Lillian led him and hiswife to believe that they would receive the assets provided for them in thewill even though thewillwas notprobated. Tope alleged that in 1982 Lillian indicated to him that he might not receive anymore of the assets provided in thewillwhich led him to file the petition for probate over seven and one-halfyears after Leslie Taylor'sdeath. After the petition for probatewas 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 finalpresumption of intestacy barring

a petition for probate filed over seven and one-half years after Taylor'sdeath. 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 remedyaga.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 oGLappointment 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 therehas been a prior appointment, may be commenced more than 3 years after the decedent'sdeath,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 contestan informal-- 1-yprobated will and to secure appointment of the person with legal priority for appointment in the event the contest is successfulmay 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 awill apply to this case. The statute provides no exception to the three-year limitation for delay allegedly caused by misrepresentations of another partyinvolved in the estate nor does it estop that party from asserting the statutorybar. 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 assumptionof intestacy final.

# ..

# ." TheDistrictCourt correctly so held. The purpose and rationale behind this three-year time limitation is clea.rly discernable from the statement of purposes underlyingMonta.nals Uniform ProbateCode: 

### "(2)Theunderlying 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.thoutunreasonable 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-mitationsin the probate code many years later. If such were permissible, there would be no finality t.oadminstration 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 pertinentpart: "Remedies for fraud

## -- statute of 

### limits

### - tions

# . (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 therebymay obtain appropriate relief including restitution against the perpetrator of the fraud or any person benefiting from the fraud, whether innocentor not (other than a bona fide purchaser forvalue and without notice)." Section 72-1-111(I), MCA

# . Only by construing the language "appropriaterelief including restitution against the perpetrator" to mean individual relief against the perpetrator by claims for relief outside the Uniform Probate Code can the foregoing statutebe 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 authorityfrom Montana.and elsewhere in support. Section 26-1-60113)

### , MCA; section 1-3-208, MCA; Thompson v. Nebraska Mobile Homes Corp. (Mont.1982), 647P.2d 334, 39 St.Rep. 1094;Fraunhofer

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

### SW 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.pkev. Hunt (1968),151Mont. 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. 1003and cases cited therein; Schroeder v. Young (1896), 161 U.S. 334, 16 S.Ct. 512, 40 L.Ed.721; Ca.rruthv. 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 

### - ofActions,$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 limitationonproceedings to probate a will is a jury issue and the District Court was in

error in ruling it inapplicableas amatter of law. Mot so. We agree thatTope has theburden 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 limitationsbarred Tope'spetition 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 justhow the filing of

a petition for probate some seven and one-half years after intestate administrationof the estatewas commenced and some six and one-half years after the final decree of distribution of the estate property was entered promotes this purpose or justhow law and equity favor onewho 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 requiringTope to seek his remedy against Lillian personally? None of whichwe are aware. Finally, appellant argues that Montana's Uniform Probate Code prohibits impairment of any accrued right he hadprior to July 1, 1975,the effective date of the Code, citing section 72-1-S,MCA. This issue was never raised in the 

## I07 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 GasDevelopmentv. Bethex (1953),127 Mont. 222, 258 P.2d 960;Mitchell v. Garfield County (1949), 123 Mont. 115, 208 P.2d 497. We note inpassing 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, ormodified on appeal." Section 91-3902,R.C.M. 1947. We have considered all other contentions,argumen.tsand authoritiesraised by the parties, consider that none require further comment in this opinion, and find that none would a-lterour rulingherein. 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 JusticeWe concur: