Dolezilek's Estate, In re
| Decision Date | 07 January 1971 |
| Docket Number | No. 11442,11442 |
| Citation | 27 St.Rep. 850,478 P.2d 278,156 Mont. 224 |
| Court | Montana Supreme Court |
| Parties | In the Matter of the ESTATE of Joseph DOLEZILEK, Sr., Deceased. R. A. SMILEY, Plaintiff and Appellant, v. Charles DOLEZILEK et al., Defendant and Respondent. |
Denzil R. Young, argued, Baker, R. A. Smiley, argued, Belle Fourche, S. D., for plaintiff and appellant.
Larry Persson, argued, Hamilton, for defendant and respondent.
This is a consolidated appeal of four actions each tried to the court without a jury in Roosevelt County. In the first action deceased's will was denied probate on a finding of lack of testamentary capacity and he was declared to have died intestate. Two actions by attorneys concern rejected creditors' claims for services they rendered deceased during a period of time deceased was allegedly incompetent. The fourth action is on a rejected creditor's claim filed by the former wife of deceased, whose marriage was annulled on findings that the deceased lacked the mental capacity to enter into the marriage contract.
The events relevant to these appeals all occurred during the years of 1954 to January 22, 1960, the date of the death of Joseph Dolezilek, Sr., at the age of 97 years.
On July 2, 1954, Joseph Dolezilek, Sr., then aged 92, married Agnes Presslar, then aged 48.
In November 1954, attorneys R. A. Smiley and the firm of Young and Martin brought an action for Joe, Sr. against his son James Dolezilek to recover certain real property. Interest on their fees is the subject of one appeal before the Court.
On August 12, 1955, Joe, Sr. executed his last will and testament. This is the subject of the first action in this appeal.
In September 1956, James Dolezilek petitioned to have a guardian appointed for his father, Joe, Sr., alleging he was incompetent and unable to handle his business affairs. Thereafter a guardian was appointed for Joe, Sr.
On September 15, 1956, James Dolezilek filed an action against his stepmother (Agnes Presslar Dolezilek) to annul the marriage between her and Joe, Sr., alleging Joe, Sr. was not mentally competent to enter into the marriage contract. The court entered judgment November 27, 1957 in favor of plaintiff James Dolezilek on the basis of lack of capacity. This judgment was not appealed. Attorneys Smiley and Martin represented defendant Agnes Presslar Dolezilek in the action at the request of Joe, Sr.; their fees and costs are the subject of another of the appealed judgments before this Court.
To summarize the consolidated legal problem presented here we shall refer to the individual attorneys collectively as the appealing attorneys as opposed to the Estate. This will prevent confusion and will not affect the result.
The appealing attorneys are the proponents of the last will and testament of Joe, Sr., Roosevelt County Probate No. 2338. The trial court denied probate and filed its findings of fact and conclusions of law which set out that Joe, Sr., lacked testamentary capacity and was not of sound and disposing mind at the date of the execution of the will. The estate is being probated as an intestacy.
Following the death of their client, the appealing attorneys filed claims in the estate for fees and costs for services rendered in the real property action filed in 1954, and the annulment action terminated in November 1957. Upon rejection of these claims by the administrator, they were consolidated and tried as Roosevelt County Civil Nos. 5987 and 5988. The court entered its findings of fact and conclusions of law in each cause which found deceased incompetent to contract for the services in these actions and denied fees and costs in the annulment action, but on the basis of necessity to preserve the incompetent's property awarded attorney R. A. Smiley $1,318.04 and attorney Young $1,355.29 and costs in the real property action. The court refused to allow interest on this award and this portion is before us on appeal.
The fourth action consolidated at trial and here is Roosevelt County Civil No. 5989. This action results from a creditor's claim by Agnes Presslar for amounts claimed owed to her for loss of earnings and food; meals and travel advanced on the marriage trip; and a claim for $4,000 the amount of a promissory note endorsed to her by the deceased, all during their marriage, later annulled. The court made findings of fact and conclusions of law which disposed of the claims on the basis of no capacity to make gifts or contract and that the balance did not state a claim for which relief could be granted.
In all the causes, Nos. 2338, 5987, 5988, 5989, the appealing attorneys failed to file objections to the findings of fact and conclusions of law. They filed for the first time in this Court as a statement of issues, objections to the findings of fact and conclusions of law, as follow:
'IN THE MATTER OF THE ESTATE OF JOSEPH DOLEZILEK, SR.
'The Court erred in its Findings of Fact No. III and its Conclusion of Law No. I in finding that Joseph Dolezilek, Sr. lacked testamentary capacity and was not of sound and disposing mind and in denying probate of the Last Will and Testament of said of Joseph Dolezilek, Sr.
'The Court erred in its Findings of Fact No. VII and in Conclusions of Law No. I and No. III in each of the above named cases, said Findings and Conclusions in both cases being substantially identical.
'III.
'The Court erred in refusing to allow interest on the judgments in favor of the plaintiffs, R. A. Smiley in Case No. 5987 and Denzil R. Young, Jr. and...
To continue reading
Request your trial
- Akamine v. Hawaiian Packing & Crating Co.
- Brown and Brown of Mt, Inc. v. Raty
-
Swecker v. Dorn
...also, Ferguson v. Standley (1931), 89 Mont. 489, 501, 300 P. 245, 250 (overruled on other grounds), In re Dolezilek's Sr. Estate v. Dolezilek (1970), 156 Mont. 224, 228, 478 P.2d 278, 280. Most states apply this rule to a claim of adverse possession. Annot. 43 A.L.R.2d 10-11; 3 Am.Jur.2d Ad......
-
Sorenson v. Lynch
... ... estate agent named Bill L. Mullin and on August 30, [157 Mont. 118] 1963, at about midday, Mullin and defendant arranged to accept $900 from plaintiff with ... ...