Vincent's Estate, In re

• Citation: 133 Mont. 424,324 P.2d 403
• Decision Date: 05 May 1958
• Docket Number: No. 9719,9719
• Parties: In re VINCENT'S ESTATE. Petition for Order Declaring Termination of Life Estate Formerly Existing in Thomas H. Vincent, now deceased. Lorena A. DENKE, Petitioner and Appellant, v. Paul R. WYLIE, as the Executor of the Last Will and Testament of Thomas H. Vincent, Deceased, Objector and Respondent.
• Court: United States State Supreme Court of Montana

Page 403

324 P.2d 403

133 Mont. 424

In re VINCENT'S ESTATE Petition for Order Declaring Termination of Life Estate Formerly Existing in Thomas H. Vincent, now deceased Lorena A. DENKE, Petitioner and Appellant, v. Paul R. WYLIE, as the Executor of the Last Will and Testament of Thomas H. Vincent, Deceased, Objector and Respondent.

No. 9719.

Supreme Court of Montana.

Submitted Jan. 27, 1958.

Decided April 10, 1958.

Rehearing Denied May 5, 1958.

Lyman H. Bennett, Virginia City, for appellant.

Frank E. Blair, Virginia City, Ralph J. Anderson, Stanley P. Sorenson, Helena, for respondent. Ralph J. Anderson argued orally.

LESTER H. LOBLE, District Judge, sitting in place of BOTTOMLY, Justice.

On August 19, 1916, J. A. McAllister and Annie McAllister, as parties of the first part, made, executed and delivered to Thomas H. Vincent and Lora M. Vincent, his wife, as parties of the second part, a certain warranty deed in usual printed form covering certain real property in Madison County, Montana. Incorporated in typewriting therein were these words:

'The parties of the second part agree not to sell the above-mentioned land or dispose of it except to the parties of the first part or their heirs.'

Lora M. Vincent died on May 9, 1948, and upon her death Thomas H. Vincent, her husband, succeeded to all right, title, claim and interest whatsoever that she had in said property at the time of her death.

Thomas H. Vincent died testate on March 13, 1955. Paul R. Wylie at the time of this proceeding had become the executor of the last will and testament of Thomas H. Vincent, deceased, and in the instant proceeding he filed objections to the petition hereinafter referred to and also filed an answer and counterclaim.

On October 14, 1955, there was filed with the clerk of the court in Madison County, Montana, a certain petition, No. 1893, entitled:

'Petition for Order Declaring Termination of Life Estate----

'To the Honorable the District Court of the Fifth Judicial District of the State of Montana, in and for the County of Madison:

'Comes now Lorena A. Denke and respectfully represents to the above-entitled Court:

'1. That in his lifetime, the above-named Thomas H. Vincent was the owner of a life estate in a certain tract of land situate, lying and being in * * * Madison County, Montana, * * *

'2. That said Thomas H. Vincent died on or about the 13th day of March, 1955, and that upon his death all interest he had theretofore had in said property terminated, and the title to said property in fee simple vested in your Petitioner and that she is now the owner in fee simple of said described property and is entitled to the possession thereof.

'3. That said Thomas H. Vincent died testate and that pursuant to an Order by the above-entitled Court duly and regularly made and entered in the office of the Clerk of the above-entitled Court, Paul R. Wylie was appointed Executor of the Last Will and Testament of said Thomas H. Vincent, deceased, that he thereafter qualified as such Executor and is now the duly and regularly appointed, qualified and acting Executor of the Last Will and Testament of Thomas H. Vincent, deceased.

'4. That said Paul R. Wylie is a nephew and heir-at-law of said Thomas H. Vincent, deceased and that Maurice McDowell, Harold McDowell, William Hughes, Flora Gorham, Frances W. Travis, Robert H. Wylie, Sadie Woodman, Marjorie Hughes Cowan and Deane Belle Cowan are heirs-at-law of said decedent and devisees under and pursuant to the Last Will and Testament of said decedent and each of them may claim an interest therein in their respective capacities as personal representative, heirs and devisees of said decedent and that they are the only persons known to Petitioner who might make any such claim.

'Wherefore, Petitioner prays for an Order declaring the former existence of the life estate of Thomas H. Vincent and the termination thereof and the vesting of the fee simple title in the property described in the foregoing Petition in your Petitioner.' Emphasis supplied.

None of the heirs named in the petition above-mentioned appeared.

The petition does not disclose the identity of Lorena A. Denke, or her source of interest in the subject matter of the litigation. By this petition, pursuant to the provisions of section 91-4321, R.C.M.1947, Lorena A. Denke sought to have determined that Thomas H. Vincent's interest in the property conveyed by said deed was a life estate, and that having died it should be terminated, but further praying that fee simple title in the property be vested in Lorena A. Denke, the petitioner.

It was to this petition that Paul R. Wylie, executor of the last will and testament, filed his objections, counterclaim, and cross-complaint, wherein he denied that the interest of Thomas H. Vincent in the property was a life estate, but was fee simple absolute. He denied that the title of said property ever at any time vested in the petitioner, Lorena A. Denke; he set up allegations to quiet title, prayed that Lorena A. Denke be required to set forth the nature of her claim and that all of her adverse claims be determined by the court; that it be decreed that the said Lorena A. Denke had no right, title, estate or interest in the property; that he be decreed entitled to the possession thereof as such executor; and that Lorena A. Denke be forever enjoined from asserting any claim to said premises adverse to the estate of Thomas H. Vincent, deceased.

An answer to the counterclaim and cross-complaint was filed denying all allegations thereof, and alleging that since the death of Thomas H. Vincent the petitioner, Lorena A. Denke, has been the owner in fee simple of the property in controversy.

It was stipulated that a photostatic copy of the deed, in question, dated August 16, 1916, would be filed in the supreme court. This was not done, but it is stipulated that said deed was a printed form of warranty deed, and that the words, 'The parties of the second part agree not to sell the above-mentioned land or dispose of it except to the parties of the first part or their heirs.', were typewritten and added to said deed prior to the execution and delivery thereof.

From the record it may be gleaned Lorena A. Denke was formerly Lorena A. McAllister, a daughter of J. A. McAllister. He, as a widower, on March 1, 1938, deeded the property to her. Though the validity of this deed was not put in issue by the pleadings, nor could it be in this type of proceeding, the court in its judgment decreed it void and ineffective. Such action by the court would have to be after institution of proper proceedings in a forum other than the probate court. It will be borne in mind that J. A. McAllister and wife, Annie McAllister, had on August 19, 1916, deeded this property to Thomas H. Vincent and Lora Vincent, his wife, by warranty deed, which contained the typewritten words above referred to.

On March 30, 1956, after trial the court below made certain findings of fact and conclusions of law and entered judgment as follows:

'That the petition of Lorena A. Denke for termination of life estate be and the same is hereby dismissed upon the merits.

'That at the time of his death on March 15 [sic], 1955, Thomas H. Vincent was the owner in fee simple of all of the property described in the pleadings on file in this action and particularly described in the petition and in the answer and counterclaim of Paul R. Wylie as the executor of the last will and testament of Thomas H. Vincent, deceased, as well as in the findings of fact hereinbefore made and filed on March 23, 1956.

'That Lorena A. Denke as the petitioner herein or otherwise has no right, title, estate or interest whatsoever in or to the lands and premises and property above mentioned and described and that the respondent, Paul R. Wylie, as the executor of the last will and testament of said Thomas H. Vincent, deceased, is entitled to the possession of said land and premises and to dispose of the same in the probate of the estate of Thomas H. Vincent, deceased.

'That the gift deed made by J. A. McAllister, a widower, on the first day of March, 1938, in favor of Lorena A. McAllister, now the petitioner herein, filed for record in the office of the County Clerk and Recorder in and for the County of Madison, State of Montana, the twentieth day of April, 1938, at 4:15 o'clock P.M. of said day and which was thereafter recorded in Book 131 of Deeds at page 252 of the records of said office is void and ineffective for any purpose.

'That the said Lorena A. Denke, her heirs, assigns, personal representatives, agents and employees be and they are hereby forever enjoined and debarred from asserting any right, title, estate, claim or interest whatsoever in or to the said lands and premises adverse to the estate of Thomas H. Vincent, deceased, Paul R. Wylie as the executor of the last will and testament of said deceased and the devisees named and described in the said last will and testament of said Thomas H. Vincent, now in probate in the above styled District Court, their heirs and assigns.

'That the real property affected by this decree is situated in the County of Madison, State of Montana * * *

'That said real estate is more specifically described and identified in a certain indenture made the nineteenth day of August, in the year of our Lord, one thousand nine hundred and sixteen, wherein J. A. McAllister and Annie McAllister, of McAllister, Montana, were parties of the first part and T. H. Vincent and Laura [sic] M. Vincent were parties of the second part, which said instrument was filed for record in the office of the County Clerk and Recorder of said Madison County, State of Montana, on October 28, 1916, at 9:15 o'clock A.M. of said day and thereafter recorded in Book 94 of Deeds at page 88 of the records of said office.'

There are a number of specifications of error, but all resolve themselves into two questions:

The Issues.

I. Did the court have...