No. 84-429 

IN THE SUPl3EME COURT OF THE STATE OF MONTANA 

1985 

IN RE THE MATTER OF THE ESTATE OF 

ALICE DULLENTY THOMAS, Deceased. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Robert Holmstrom, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Lynaugh, Fitzgerald & Hingle; Michael G. Eiselein 

argued, Billings, Montana 

For Respondent: 

Jones Law Firm; W. Blair Jones argued, Billings, 

Montana 

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Submitted: March 11, 1985 

Decided: May 9, 1985 

Clerk 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

The heirs of decedent, Alice Thomas, appeal an order of 

the Yellowstone County District Court which held that while 

sitting in probate, it lacked jurisdiction to consider the 

propriety of certain pre-dea.th transfers made according to 

decedent's instructions, by her personal representative, John 

W. "Bil.1" Bresnahan. 

The sole issue presented here is whether the District 

Court, sitting in probate, has jurisdiction to determine 

title to real property. The District Court sitting as a 

court of probate d.etermined that it did not. 

We affirm. 

Albert Thomas married Alice Dull.enty in 1939. They 

spent most of their married life in Billings, Montana. In 

January 1980, Albert and Alice signed identical wil-ls, each 

leaving his or her property to the surviving spouse, and if 

neither spouse survived, then to the Thomas heirs. 

On February 2, 1980, Alice changed her mind, and 

executed a new will, similar to the first will, but naming 

her sister's son, Bill Bresnahan, as personal representative 

of her estate. Also on February 2, 1980, Alice signed a 

power of attorney, naming Bill Bresnahan as attorney-in-fact, 

giving him "full power to do and perform all and every act" 

and "every proper power necessary to carry out the purposes 

for which this power is granted." 

According to Bresnahan, the will and power of attorney 

constituted Alice's estate plan. Bresnahan states Alice 

instructed him that she wanted to take care of two 

Yellowstone Avenue real properties in Billings for as long as 
she was able, and that Rresnahan should thereafter transfer 

the properties to six specified Dullenty heirs, on the 

condition that they hold. the properties in trust for Al-ice 

for her life and for Albert for his life, to the extent 

necessary to sustain them. 

On April 16, 1982, Bresnahan transferred the real 

property to the Dullenty heirs, after both Alice and Albert 

were placed in a nursing home. Alice died on June 25, 1982. 

Bresnahan entered her will into probate, listing an 

inventory which excluded the Yellowstone Avenue properties. 

By that time, Albert was incompetent, and his sister, Eleanor 

Barclay, had been appointed his conservator. Barclay brought 

an action seeking to remove Bresnahan as personal 

representative of Alice's estate, and to set aside the 

conveyances made by him to the Dullenty heirs. She filed a 

motion for summary judgment on November 21, 1983, claiming 

that neither Alice's will nor the deeds filed of record 

indicate on their face that Alice intended Albert to have 

only a life estate in her property, with the six Dullenty 

heirs taking fee ownership after Albert's death. 

The District Court denied Barclay's motion for summary 

judgment, for the reasons that there were material factual 

issues in dispute and questions of par01 evidence that could 

not be determined by summary judgment. 

At that time, Judge Wilson, who was sitting on the 

District Court, retired. Judge Holmstrom succeeded him. He 

affirmed Judge Wilson ' s ruling as to the summary judgment, 

but raised the question as to whether the District Court, 

sitting in probate, had jurisdiction to decide the question 

of the pre-death transfer of certain properties in her estate 

to the Dullenty heirs. 
Barclay noted in a Reply Brief filed August 1, 1.984, 

that while she was not seeking to dismiss her own petition, 

she had researched the matter and agreed with the court's 

order that the District Court, while sitting in probate, 

lacked the requisite jurisdiction to determine title t.o real 

property. 

Bresnahan, on the other hand, took the posi.tion that 

jud-icial economy would be served by continuing the proceeding 

in the probate court. The District Court disagreed, and this 

appeal ensued. 

We have consistently answered the question. in the 

negative, whether the District Court, sitting in probate, has 

jurisdiction to decide title to real property. Matter of the 

Estate of Swandal (1978), 179 Mont. 429, 587 P.2d 368; 

Christian v. A. A. Oil Corporation (1973), 161 Mont. 420, 506 

P.2d 1369; McReynolds v. McReynolds (1966), 147 Mont. 476, 

41.4 P.2d 531; In re Jennings' Estate (1925), 74 Mont. 449, 

241 P. 648; In re Dolenty's Estate (1916), 53 Mont. 33, 161 

P. 524; State ex rel. Barker v. District Court (1902), 26 

Mont. 369, 68 I?. 856. 

Bresnahan contends the "archaic distinctions" between 

probate jurisdiction and other forms of jurisdiction no 

longer exist under the 1972 Montana Constitution or under the 

Uniform Probate Code as adopted in Montana. Be cites various 

constitutional and statutory provisions which list probate 

matters together with civil cases, and with all cases at law 

and in equity. 

He cites extensively from the old and long-standing case 

of Chadwick v. Chadwick (18871, 6 Mont. 566, 13 P. 385, 

arguing that the now (then) antiquated concept of a separate 

and distinct probate jurisdiction was rejected, because the 
probate court was a court of equity, having chancery powers. 

But Chadwick does not aid Bresnahan, first, because the 

issues there involved advancements made to certain 

beneficiaries under the will, and. second, the Court ruled the 

question of advancements was outside the scope of probate 

iurisdiction. In the present case, the Dullenty heirs were 

alternate beneficiaries; therefore the deeds of property to 

them were not advancements. Further, at the time Alice died, 

the properties were not in her estate to devise to Albert. 

Bresnahan argues that the probate court has jurisdiction 

to determine whether a certain asset should be included in 

the inventory of an estate and cites our opinion in Swandal, 

supra, to support that argument: 

"It is true, as appellants contend, that the 

District Court is without jurisdiction to try 

questions of title among the estate, the heirs and 

third. parties. In re Jennings Estate (1925), 74 

Mont. 449, 466, 241 648, In re Dolenty's Estate 

(1916) , 53 Mont. 33, 43, 161~7 524. ' [B] ut the 

court does have the power to determine the fact 

whether or not property in dispute belongs to an 

estate as an asset thereof or for the purpose of 

inclusion in the inventory.'" 179 Mont. at 436, 

587 P.2d at 372. 

The policy considerations, however, preclude a determination 

of title. We are aware that a majority of states follow the 

rule that a court sitting in probate has jurisdiction to 

determine title to property. 90 A.L.R. 134 (1934). And too, 

in at least one instance, it was held that in determining the 

i-nventory of an esta.te, the probate court had jurisdiction 

incidentally to determine title to property apparently 

belonging to the estate; but such determination is merely for 

the purpose of facilitating the orderly progress of business 

in that court, and does not determine the ultimate rights of 

the parties. Security-First National Bank of Los Angeles v. 
In Montana, title to real property, whether determined 

incidentally or intentional-ly, must he resolved in proper 

proceedings instituted for that purpose. 

The order of the District Cour 

We Concur: 

Justices 
Mr. Justice John C.Sheehy, specia1l.y concurring: 

I concur in the above opinion because of the long 

history of similar decisions in this Court, although I am not 

sure that the Uniform Probate Code may have provided for this 

kind of dilemma in § 72-3-615, MCA. At any rate, it would be 

my suggestion to the District Court and the parties that a 

special administrator be appointed. under S 72-3-701, MCA, 

charged with the duty to bring an action on behalf of the 

estate against the transferees to determine the issues of 

title raised by the conservator. The special administrator 

should be a neutral person to the contending parties here. 

The determination of the court in such special action would 

determine for the probate court whether the real property 

should be included as an asset of Alice's estate. 

<\ - -zc 

i Justice