In re Robert's Estate

• Citation: 58 P.2d 495,102 Mont. 240
• Decision Date: 05 May 1936
• Docket Number: 7493.
• Parties: In re ROBERTS' ESTATE.
• Court: Montana Supreme Court

58 P.2d 495

102 Mont. 240

In re ROBERTS' ESTATE.

No. 7493.

Supreme Court of Montana

May 5, 1936

Rehearing Denied June 18, 1936.

Appeal from District Court, Cascade County; W. H. Meigs, Judge.

Proceeding in the matter of the estate of Julia Roberts, also known as Julia S. Roberts, Mrs. Julia S. Roberts, and Mrs. William Roberts, deceased, wherein Elmore William Roberts after distribution filed petition alleging invalidity of trust created in will and praying that trust be terminated. From an adverse decree, Maria Frances Gray and John Stotter filed two appeals, and motion to dismiss each appeal was filed.

Appeals dismissed.

Appeal from what was termed an "order and decree" entered in proceeding to terminate and determine testamentary trust which had been probated held required to be taken within 60 days after order was made, whether such "order and decree" was merely an order or actually a decree (Rev.Codes 1921, §§ 10366, 10367).

O. B Kotz, of Great Falls, Brobeck, Phleger & Harrison and Moses Lasky, all of San Francisco, Cal., and W. H. Morrissey, of Redwood City, Cal., for appellants.

Hall & McCabe, of Great Falls, for respondent.

STEWART Justice.

Appeals from the district court of Cascade county. Julia Roberts died testate on the 8th day of October, 1930. At the time of her death she was a resident of California, but left property both real and personal, in California and Montana. She was survived by two sons, Milton Louis Roberts and Elmore William Roberts, and by one brother, John Stotter, a resident of California. Her will was duly probated in the district court on November 19, 1930. It recited that decedent was a widow at the time of the execution thereof, January 4, 1930, and that her only living children were Elmore William Roberts, aged 37, and Milton Louis Roberts, aged 34.

The estate proceeded through administration and on December 2 1931, a decree of distribution was entered. By the terms of this decree, and in accordance with the provisions of the will, distribution of certain small bequests was made to outside parties, and all of the residue of the estate, both real and personal, was distributed to the Great Falls National Bank, a corporation, as trustee. The will provided that all of such residue was given, devised and bequeathed to the Bank of Italy National Trust & Savings Association, a national banking association, to be held in trust for the uses therein expressed. The Bank of Italy renounced its right to be appointed as trustee; in its stead the Great Falls National Bank, Great Falls, Montana, was appointed and all of the property distributed to it. A decree of final discharge of the administrators or executors of the will was duly entered on December 9, 1931.

The important paragraphs of the will read as follows:

"Sixth. All of the rest, residue and remainder of my estate, whether the same be real, personal or mixed, of whatever kind or character and wheresoever the same may be situated, of which I may die seized or possessed, or in which I may have any interest or right of testamentary disposition or power of appointment at the time of my death, I hereby give, devise and bequeath to Bank of Italy National Trust & Savings Association, a national banking association, to be held in trust, nevertheless, subject to the following uses, terms, conditions and limitations:

(e) The entire net income received and derived from the trust estate shall go and be paid monthly or quarterly, as follows: Each of my said sons shall receive therefrom the sum of six hundred ($600.00) dollars per month for the term of five (5) years from and after the date of distribution to said trustee and the remainder of said net income is to be added to the principal of the trust estate; after the end of the said five (5) year period, the entire net income shall be divided equally between my said sons, until the death of the last one surviving and should the one dying first leave issue of his body surviving, then said issue shall receive the income to which his father would have been entitled until the termination of this trust, but should the one dying first leave no issue, then the entire net income shall go to the survivor until his death.

(f) This trust shall cease and terminate upon the death of the last survivor of my said sons, whereupon my said trustee shall pay, deliver and convey all of the trust estate then remaining in his hands to the surviving bodily issue of my said sons, per capita, if any, and if there is no such surviving issue then the entire trust estate shall be distributed to my heirs in accordance with the laws of succession of the state of California then in force.

I have purposely made no provision for any other person, whether claiming to be an heir of mine or not, and if any person, whether a beneficiary under this will or not, mentioned herein, shall contest this will or object to any of the provisions hereof, I give to such person so contesting or objecting the sum of one dollar ($1.00), and no more, in lieu of the provisions which I have made or which I might have made for such person so contesting or objecting."

A copy of the will was attached to and made a part of the decree of distribution, and thereafter the Great Falls bank proceeded to administer the trust.

On January 25, 1935, Elmore William Roberts, one of the sons, filed a petition in the district court of Cascade county, under the provisions of section 10352, Rev.Codes 1921. The petition recited the execution of the will, the probate thereof, the administration of the estate, and all of the things preceding the filing of the petition itself. It set forth the provisions of the will already recited herein, and alleged that such provisions were invalid and of no force and effect because they were in conflict with certain enumerated statutes of Montana.

In conformity with the prayer of the petition, a citation was issued requiring all persons interested in the matter to appear and show cause on the 13th day of March, 1935. The citation was delivered to the sheriff of Cascade county for service, and service was made upon the bank. The sheriff's return recited that it was impossible to make service in Montana upon Milton Louis Roberts and John Stotter. Application for an order for publication was made by affidavit of counsel. The court made an order that Milton Louis Roberts and John Stotter be served by publication. Alias citation issued on January 26, 1935. In lieu of publication, personal service was made upon Milton Louis Roberts and John Stotter, both in California. The service on Milton Louis Roberts was made by a deputy sheriff on February 4, 1935, and return thereof was made under oath. Milton Louis Roberts never appeared in the proceedings, but Maria Frances Gray, formerly Maria Frances Stotter, and John Stotter appeared by answer filed March 13, 1935, the day set for hearing the petition.

The answer admitted the essential facts of the execution of the will by Julia Roberts and of the administration and distribution of her estate in accordance with the will. It denied the illegality of the trust provisions of the will, and alleged that at the time of the death of decedent there were living her two sons and a brother, one John Stotter; that said John Stotter had died since the death of his sister, the testatrix, and that the answering parties were his surviving children and only heirs at law; that as such successors and heirs at law of John Stotter, deceased, the answering parties were the legatees entitled to take all that portion of the estate designated to go to the heirs of Julia Roberts upon the demise of her sons without issue. The answer further recited the provision of the will relative to penalty and forfeiture to be enforced against any one who sought to break the will, or who objected to any of the provisions thereof. It also recited that the sons from the date of the entry of the decree of final distribution until that time had received the income as provided by the will; and finally prayed that the petition of Elmore William Roberts be denied and the decree of distribution be adjudged to be final, and that William Elmore Roberts be denied further participation in the estate by reason of the recited provisions.

The bank filed an answer, admitting and denying allegations of the petition, and finally praying that the relief be denied and the decree of distribution be allowed to stand.

On March 13, 1935, the date designated in the citation, the matter came on for hearing upon the petition and upon the answer of Maria Frances Gray and John Stotter. At that time no reply had been filed by petitioner. The matter was taken under advisement by the court, and each side was instructed to file briefs. Two days later, on March 15, 1935, petitioner served and filed a reply; it denied, upon information and belief, that Maria Frances Gray and John Stotter were the surviving heirs of their father, John Stotter.

On May 10, 1935, appellants Gray and Stotter made application to the court for authority to take depositions to establish the relationship and heirship of Gray and Stotter. The application for authority to take the depositions was resisted on the ground that no application was made to open the case for further testimony, and that the case had been closed. The judge denied the application to take depositions.

On July 8, 1935, the court made and caused to be entered what was denominated an "Order and decree." From the recitations of this decree it is evident that the court considered that the whole matter had been submitted at the time of the hearing, and that the issues had been settled and made up at that time, and that the reply thereafter filed was of no force and effect in the premises. This, in...