In re Day's Estate, No. 8669.

Docket NºNo. 8669.
Citation119 Mont. 547
Case DateMarch 20, 1947

119 Mont. 547

In re DAY'S ESTATE.

No. 8669.

Supreme Court of Montana.

Feb. 20, 1947.
Rehearing Denied March 20, 1947.


Appeal from District Court, Ninth District, Toole County; R. M. Hattersley, Judge.

Proceeding in the matter of Erma Day, deceased, on petition of Leon A. Murrills that deed to deceased be declared a mortgage and Douglas Parker, as administrator, be directed to convey the property involved to petitioner. From an order for petitioner, the administrator and Robert Robinson, an heir, annd Mabel Bennett, a creditor, appeal.

Order reversed with directions.

[119 Mont. 548]


D. W. Doyle, of Conrad, and John J. Greene, of Cut Bank, for appellant and objectors.

E. J. McCabe, of Great Falls, and Cedor B. Aronow, of Shelby, for Douglas Parker, administrator, appellant.


Lloyd A. Murrills, of Cut Bank, for respondent.

CHOATE, Justice.

This is an appeal by Douglas Parker as administrator of the estate of Erma Day, deceased, from an order of the district court of Toole county sitting in probate granting the petition of Leon A. Murrills, respondent herein, for the conveyance to him by said administrator, of certain real property and to have a deed conveying same declared a mortgage. Robert Robinson, an heir, and Mabel Bennett, a creditor of Erma Day, also joined in the appeal. The trial court found in favor of respondent Murrills, held the deed involved to be in fact a mortgage and ordered the administrator to make conveyance of the property to petitioner upon payment of the sum of $1,141.66 and interest, the balance found to be due the estate.

The petition alleges the following essential facts upon which issue was joined by appellants: That in the year 1935, and prior thereto, petitioner Murrills was the owner of three lots of land in the city of Shelby, Montana; that on or about January 2, 1935, he executed to decedent a deed in writing to said lots, which deed was recorded with the county clerk of Toole county about twelve days later; that although this deed was on its face an absolute conveyance in fee simple with no right of redemption mentioned in it, that it was in fact intended by both petitioner and decedent that said deed was a mortgage only and should stand as security for the payment of an indebtedness

[119 Mont. 549]

owed by petitioner to decedent in the sum of $937.68, and that the property should be reconveyed to petitioner at any time he repaid said sum. This agreement is alleged to have been made by an exchange of letters between petitioner who then temporarily resided in Minneapolis and decedent who lived in Shelby. Petitioner was unable to produce any of said letters but after stating that he had made a search for them but could not find them, he then testified to their contents. He stated that Mrs. Day wrote him that Dr. Williamson, who owned the Shelby Drug Company, and had a mortgage on petitioner's lots in Shelby on which about $3,200 was due, had told her he was about to foreclose said mortgage unless some provision was made for paying him; that in order to help petitioner out in the emergency, Mrs. Day wrote that she wanted to make a loan to him and that she would advance the amount necessary to pay off Dr. Williamson with the understanding that at any time petitioner repaid said loan, she would reconvey the property to him. It appears without contradiction that in order to pay off the Shelby Drug Company mortgage, petitioner borrowed from the Home Owners Loan Corporation $2,765.30. This was insufficient to pay off the full amount of its mortgage, some $3,201.18 and Mrs. Day paid the balance in the amount of $927.68, this being the amount of the loan allegedly made by decedent to petitioner.

In support of petitioner's case the following testimony was also introduced upon the matter of the alleged exchange of letters between petitioner and decedent: J. W. Williamson testified to a conversation which he had with Mrs. Day in the fall of 1935, in which, referring to the contemplated foreclosure of witness' mortgage, Mrs. Day said ‘she was going to redeem the property or going to get a loan on it,’ and that she said she was ‘not going to have L. A. Murrills loose the property.’ Lloyd A. Murrills, son of petitioner, testified that he had an exchange of correspondence with Mrs. Day during the year 1935; that he had not kept the letters and could not produce them but that he had a memorandum made at the time

[119 Mont. 550]

he received the letter on which he had copied figures contained in a letter from Mrs. Day about the amount she had received from the Home Owners Loan Company and what she paid Dr. Williamson. Testifying from said memorandum, witness said that the amount of said advances stated in said letter was $937.68. Witness then testified that in said letter Mrs. Day said that although she was taking over the property and expected to receive the deed for it, she was not taking it over for herself and all she wanted out of it was the money she was putting into it.

In support of the objector's case, the following facts are established:

1. The duration or date of payment of the alleged ‘mortgage’ was nowhere specified other than that petitioner stated the lots in question were to be reconveyed to him ‘at any time’ he repaid the loan of $927.68;

2. No interest or interest rate on the mortgage indebtedness was specified;

3. Insofar as the record discloses, no note for the mortgage indebtedness was given;

4. Mrs. Day was living on the premises in question at the time the alleged ‘mortgage’was given to her and she continued to live there for approximately eight years up to the time of her death;

5. Decedent paid the monthly installments of $21.80 on the mortgage given by Murrills to the Home Owners Loan Corporation from the date it was given to the time of her death. She also paid the taxes and special improvements on the property, as well as the fire insurance premiums on the dwelling house and garage from 1937 to 1944;

6. Mrs. Day also made extensive repairs and changes in the property during her occupancy of it. She ‘made a dining room out of the bed room,’ laid a hardwood floor, remodeled the kitchen, put wall covering on both bedroom and living room ceilings, sanded all the floors, kept up the yard and garden and set out shrubbery;

[119 Mont. 551]

7. No payments were made on the alleged ‘mortgage’ for seven years. Finally in the fall of 1943 and in 1944 petitioner testified that he paid Mrs. Day two payments of $150 each and one payment of $68.20, a total of $368.20. Nothing was said by Mrs. Day about any of these payments being applied on the alleged ‘mortgage’ indebtedness and there is no showing of a mortgage to secure future advances;

8. Petitioner's case is grounded almost entirely upon oral testimony concerning the contents of a lost letter or letters which were allegedly written ten years before the date of this litigation.

Statutes Applicable. This action is brought under the provisions of section 10268 to 10273, Revised Codes of Montana of 1935. Briefly summarized, so far as applicable to this case, the sections provide that the executor or administrator of a decedent who was bound by a contract in writing to convey real estate but died before making the conveyance, may be compelled by order of the court or judge to make such conveyance. Provision is made for petition and contest by interested parties. Section 10271 provides that if after a full hearing upon the petition and objections and examination of the circumstances of the claim, the court or judge is satisfied that the petitioner is entitled to a conveyance of the real estate, he shall order such conveyance to be made. Section 10273 provides that if upon such hearing the right of the petitioner to have a specific performance is found to be doubtful, the judge must dismiss the petition without prejudice and the petitioner may at any time within six months thereafter proceed by action to enforce a specific performance thereof.

Jurisdiction of the Court. At the outset of our consideration of this case we are met with the question as to the authority of the district court sitting in probate to entertain and pass upon respondent's petition to have a deed...

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6 practice notes
  • Vincent's Estate, In re, No. 9719
    • United States
    • Montana United States State Supreme Court of Montana
    • May 5, 1958
    ...Kelly v. Second Judicial District Court, 25 Mont. 33, 63 P. 717; In re Graff's Estate, 119 Mont. 311, 174 P.2d 216; In re Day's Estate, 119 Mont. 547, 177 P.2d 862; 4 Bancroft's Code Practice and Remedies, Sec. 2909, p. In State ex rel. Reid v. District Court, 126 Mont. 586, 591, 256 P.2d 5......
  • In re Estate of Cooney, DA 19-0324
    • United States
    • Montana United States State Supreme Court of Montana
    • December 24, 2019
    ...no real controversy over the claim exists, but do not have jurisdiction to consider matters equitable in nature. In re Day’s Estate , 119 Mont. 547, 553, 177 P.2d 862, 866 (1947). We have held also that a probate court does not have jurisdiction to decree specific performance of an oral con......
  • Roberts v. Roberts, No. 16645.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 8, 1961
    ...must be determined in proper proceedings instituted for that purpose (Citing cases)." The court also quoted from In re Day's Estate, 119 Mont. 547, 177 P.2d 862, 865, as follows: "It is also well settled in this state that a district court sitting in probate cannot try questions of title or......
  • Investors Stock Fund, Inc. v. Roberts, Civ. No. 1821.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Montana)
    • September 4, 1959
    ...it. These questions must be determined in proper proceedings instituted for that purpose (Citing cases)." Again, in In re Day's Estate, 119 Mont. 547, 177 P.2d 862 at page 865, the Montana Court "It is also well settled in this state that a district court sitting in probate cannot try quest......
  • Request a trial to view additional results
6 cases
  • Vincent's Estate, In re, No. 9719
    • United States
    • Montana United States State Supreme Court of Montana
    • May 5, 1958
    ...Kelly v. Second Judicial District Court, 25 Mont. 33, 63 P. 717; In re Graff's Estate, 119 Mont. 311, 174 P.2d 216; In re Day's Estate, 119 Mont. 547, 177 P.2d 862; 4 Bancroft's Code Practice and Remedies, Sec. 2909, p. In State ex rel. Reid v. District Court, 126 Mont. 586, 591, 256 P.2d 5......
  • In re Estate of Cooney, DA 19-0324
    • United States
    • Montana United States State Supreme Court of Montana
    • December 24, 2019
    ...no real controversy over the claim exists, but do not have jurisdiction to consider matters equitable in nature. In re Day’s Estate , 119 Mont. 547, 553, 177 P.2d 862, 866 (1947). We have held also that a probate court does not have jurisdiction to decree specific performance of an oral con......
  • Roberts v. Roberts, No. 16645.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 8, 1961
    ...must be determined in proper proceedings instituted for that purpose (Citing cases)." The court also quoted from In re Day's Estate, 119 Mont. 547, 177 P.2d 862, 865, as follows: "It is also well settled in this state that a district court sitting in probate cannot try questions of title or......
  • Investors Stock Fund, Inc. v. Roberts, Civ. No. 1821.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Montana)
    • September 4, 1959
    ...it. These questions must be determined in proper proceedings instituted for that purpose (Citing cases)." Again, in In re Day's Estate, 119 Mont. 547, 177 P.2d 862 at page 865, the Montana Court "It is also well settled in this state that a district court sitting in probate cannot try quest......
  • Request a trial to view additional results

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