No. 87-529 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

ALBERT H. NEUMANN, 

Plaintiff and Appellant, 

SALLY MARLENE ROGSTAD, Personal 

Representative of the Estate of 

Isabel Neumann, Deceased, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eighth Judicial District 

In and for the County of Cascade 

The Honorable John M. McCarvel, Judge presiding \ .' 

COUNSEL OF RECORD': 

For Appellant: 

Randy Winner; Flaherty and Winner, P.C., Great Falls, MT 

For Respondent: 

Joseph Marra; Marra, Wenz, Johnson and Hopkins 

Great Falls, MT 

Submitted on Briefs: March 24, 1988 

Decided: May 6r 1988 

piled: MAY 6- 1988 

% 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Plaintiff appeals the order of the District Court of the 

Eighth Judicial District, Cascade County, granting summary 

judgment in favor of defendant. We affirm. 

The issues before the Court are: 

1. Did the District Court correctly determine that the 

plaintiff failed to properly file a claim against decedent's 

estate? 

2. Did the District Court correctly determine that 

summary judgment was proper? 

3. Did the District Court err when it failed to grant 

costs and attorney fees pursuant to 5 72-12-206, MCA? 

Albert Neumann (Albert) and Isabel Neumann (Isabel) were 

married in 1932. During the early 19401s, Albert and Isabel 

began purchasing unimproved lots in and around the Great 

Falls area. As the couple prospered, they also engaged in 

numerous other business ventures. The titles to these business enterprises were held both jointly and separately. 

Albert and Isabel's manner of holding property changed 

drastically in the mid-19601s, however. At that time, Albert 

was involved in a bar brawl in which his opponent suffered a 

broken arm. In an attempt to insulate himself from a pending 

civil suit, Albert transferred all of his property to Isabel. 

The property was not transferred back to Albert following 

settlement of the case. 

Although Albert and Isabel enjoyed a measure of business 

success throughout their years together, the couple's attempt 

at marriage was less successful. After numerous separations 

and several aborted divorce proceedings, their marriage was 

finally dissolved in 1973. As a result of Albert's failure 

to appear at the proceeding, Isabel received the majority of 
the couple's property. Isabel also excluded Albert from her 

will shortly thereafter. 

Unlike most couples, the divorce did not adversely 

affect Isabel and Albert's relationship. If anything, the 

divorce strengthened the relationship. Isabel and Albert 

continued to spend a great deal of time together and engaged 

in several joint business ventures. In addition, if rental 

properties owned by Isabel needed maintenance, Albert provided or arranged for it, usually at little or no charge for his 

labor. 

Prior to her death in 1986, Isabel's illness severely 

limited the extent of her activities. During this period, 

Albert provided Isabel with transportation, companionship, 

household services and business assistance. As a consequence, Isabel is alleged to have promised Albert that she 

would grant him a one-half interest in the property the 

couple had previously held jointly. Isabel failed to transfer the property or alter her will, however. 

Albert filed a creditor's claim against Isabel's estate 

on December 19, 1986. Following denial of his claim, Albert 

filed suit alleging common law marriage, a claim for services 

rendered in the amount of $35,200.00, constructive trust, and 

an oral contract theory. Albert subsequently dropped the 

common law marriage claim and instead alleged that the 1973 

divorce decree was inadequate. 

This appeal followed the District Court's order granting 

summary judgment in favor of the defendant. Although the 

District Court's order extinguished all four counts of Albert's complaint, the argument presented by counsel only 

addresses the propriety of the dismissal of the claim for 

services rendered. We therefore limit our discussion 

accordingly. 
The policy underlying Montana's Uniform Probate Code 

(UPC) is the fast and efficient settlement of estates. 

Section 72-1-102 (2) (c) , MCA. Consistent with this goal, $ 

72-3-803, MCA, provides that all claims against an estate 

must be made within four months after the date of the first 

publication of notice to creditors. The failure to make a 

claim within the brief statutory period thereafter bars the 

action. 

The UPC is also designed to simplify the probate process. See § 72-1-102 (2) (a), MCA. Section 72-3-804, MCA, is 

a reflection of this legislative design. It provides, in 

pertinent part: 

Claims against a decedent's estate may be presented 

as follows: 

(1) The claimant shall mail to the personal representative return receipt requested a written state- 

--- ment of the claim indicating its basis, -- the name 

and address -- of the claimant. -- and the amount claimed 

or may file a written statement of the claim, in 

the form prescribed by rule, with the clerk of the 

court . . .. (Emphasis added.) 

In an attempt to satisfy 5 72-3-804, MCA, Albert submitted a document entitled "Claim Against Estate," wherein he 

listed his name, his attorney's address, and an allegation 

that the estate was indebted to him in the amount of 

$35,200.00 for services performed as set out in schedule "A," 

reproduced below. 

The services provided for Isabel Neumann by Albert 

H. Neumann, include such things as: 

Washing windows; mowing lawns; planting flowers; 

house cleaning; clothes washing; bathing Isabel 

Neumann; buying groceries; filling Isabel's portable oxygen bottle; providing a vehicle and driving 

Isabel to the doctor, the bank, the accountant, 

and wherever she wanted to go; buying prescription 

drugs; doing her Christmas shopping; taking her out 

to dinner and bringing meals to her at home; 
balancing her checking account for her; working 

with her on joint investments; caring for her 

parents' graves; advising her on personal problems; 

repairing and maintaining real property for her; 

constructing the buildings at 108 20th Street 

South, the building in which the Nugget Bar is 

located, and the metal quonset building behind the 

Nugget Bar; and managing and maintaining the rental 

properties for Isabel. 

The defendant argued, and the District Court apparently 

agreed, that Albert's claim for services failed to meet the 

statutory requirements of § 72-3-804, MCA, because the claim 

failed to sufficiently describe what services he allegedly 

rendered and when he allegedly rendered them. We disagree. 

It is not the function of this Court to insert that 

which has been omitted. Section 1-2-101, MCA. By its terms, 

§ 72-3-804, MCA, does not require that a claimant specify the 

exact date a debt was incurred nor does the statute require 

the claim be set forth in minute detail. Rather, a claimant 

need only set forth the basis of a claim, the amount claimed, 

and his or her name and address. While Albert's claim might 

have been more specific, it still satisfied the statutory 

requirements. The duty to attempt to conduct further inquiry, within reasonable parameters, then passed to the personal 

representative. 

"The purpose to be accomplished by our statutory provisions relating to presentment of claims against estates is to 

bring all claims to the knowledge of the executor or administrator so that proper inquiry and investigation may be made 

regarding their validity, with the view of enabling the 

executor or administrator to pass intelligently upon them." 

Wunderlich v. Holt (1929), 86 Mont. 260, 269, 283 P. 423, 

425. Generally, the form of a claim is not determinative. 

All that is required is that the estate receive reasonable 

notice of the claim by the required time so that the personal 
representative can determine the validity of a claim. Peterson v. Marston (Minn. 1985), 362 N.W.2d 309, (construing 

identical statutory language); Strong Bros. Enterprises v. 

Estate of Strong (Colo.App. 19831, 666 P.2d 1109 (construing 

identical statutory language); Notar v. State Farm Mutual 

Auto Insurance Co. (Fla.App. 1983), 438 So.2d 531. We find 

Albert's claim was sufficient to provide notice of the alleged debt. 

However, the District Court also determined that Albert 

failed to provide sufficient proof in support of his claim to 

raise a genuine issue of material fact. We agree. 

Throughout Albert's deposition, he contended that although legally divorced, he and Isabel were in actuality 

husband and wife; that he failed to initiate legal proceedings for property allegedly his due to his affection for 

Isabel; and that "they could have taken my life and it still 

would have been hers." In addition, the record is silent as 

to whether he ever entered an agreement with Isabel to provide services; the date, value or hourly rate for such services; and whether he ever billed Isabel for such services. 

Albert's belated determination that he "believes" he would 

charge for getting groceries and running errands is not 

sufficient to raise a genuine issue of material fact. 

The courts have long struggled with belated claims by 

family members and others against a person whose "mouth is 

stopt with dust." See Wunderlich, 86 Mont. at 271, 283 P. at 

425. Generally, the law presumes that services are given and 

rendered with the expectation of being paid. San Antonio v. 

Spencer (1928), 82 Mont. 9, 13, 264 P. 944, 945. However, 

services provided by family members or through some other 

significant relationship give rise to an entirely different 

presumption. 
"It is certainly true that where services are 

rendered by one person for another, which are 

knowingly and voluntarily accepted, without more, 

the law presumes that such services were given and 

rendered in the expectation of being paid for and 

will imply a promise to pay what they are reasonably worth. " [Citation omitted. ] To this rule 

there is a generally acknowledged exception . . .: 

"In the case of near relatives or members of the 

same family, living together as one household, the 

law regards personal services rendered, and board 

or lodging or other necessaries and comforts furnished, as gratuitous, and in the absence of an 

express agreement to pay for the same or facts and 

circumstances from which such an agreement can be 

inferred, there can be no recovery therefor. . . ." 

San Antonio, 82 Mont. at 13, 264 P. at 945. 

A similar rule has been applied in a situation in which 

kindness and affection motivated the rendering of services. 

[Pllaintiffs indicated that they performed the 

services out of kindness for an elderly neighbor. 

However laudable plaintiffs' action on behalf of 

decedent may have been, there was no implied contract of payment since there was no understanding 

between plaintiffs and decedent that plaintiffs 

would receive payment as consideration for the 

services they performed. In denying a plaintiff's 

contract claim against an estate for services 

rendered to a decedent, the California Court of 

Appeals stated: 

". . . If at the time the services were originally 

rendered they were intended to be gratuitous or as 

an accommodation, motivated by friendship, kindness, or some other significant relationship existing between the parties, and were tendered without 

any expectation of remuneration, they cannot afterwards be converted into an obligation to pay their 

reasonable value under the theory of an implied 

contract . . ." 

Ziegler v. Kramer (1977), 175 Mont. 236, 239, 573 P.2d 644, 

645. 

Application of the Ziegler and San Antonio rationales 

clearly demonstrates the inadequacy of Albert's proof. 
Although not legally married to Isabel, Albert testified that 

the couple were in fact acting as husband and wife. He also 

testified repeatedly that his love and affection for Isabel 

had precluded an action for large sums of money rightly his. 

Under such circumstances, the failure to allege an express 

contract or to present a written copy of the same is fatal to 

his claim. Albert's uncertain, belated and unilateral determination that he should be compensated for services rendered 

to a person unable to answer is not sufficient to raise a 

genuine issue of material fact. 

Finally, it is alleged that the District Court erred 

when it failed to grant the defendant costs and attorney fees 

pursuant to 5 72-12-206, MCA. We find the issue is not 

properly before us. 

We note that Albert did not raise the issue of attorney 

fees. In order to preserve an issue not raised by an appellant, it is necessary for the personal representative as 

respondent to file a notice of cross-appeal. Rule 5 (a) , 

M.R.App.P., provides in pertinent part: 

(3) If a timely notice of appeal is filed by a 

party, any other party may file a notice of appeal 

within fourteen days after the date on which the 

first notice of appeal was filed, or within the 

time otherwise prescribed by this Rule 5(a), whichever period last expires. 

The respondent's failure to so file is thus fatal to his 

claim. 

Respondent's claim is not saved by Rule 14, M.R.App.P. 

Rule 14 merely provides the opportunity for a respondent to 

raise an issue on appeal. It does not eliminate the procedural prerequisites necessary to perfect an appeal. In a 

similar situation, we have stated: 

Finally, wife contends that the District Court 

erred in refusing to grant attorney fees and costs. 
We cannot review this issue, however, because wife 

failed to file a cross-appeal. 

"Although Rule 14 (M.R.App.Civ.P.) provides for 

review of matters by cross-assignment of error, 

this does not eliminate the necessity for 

cross-appeal by a respondent who seeks review of 

rulings on matters separate and distinct from those 

sought to be reviewed by the appellant." Johnson 

v. Tindall (1981), 195 Mont. 165, 169, 635 P.2d 

266, 268. 

Marriage of Johnson (1983), 205 Mont. 259, 263, 667 P.2d 438, 

440. 

The judgment of the District Court is affirmed. .--- 

~~~ I 

Justice 

i 

4'' 

Justlces