Matter of Estate of Skornogoski ( 1995 )

No. 94-522
IN THE SUPREME COURT OF THE STATE OF MONTANA
APPEAL FROM: District Court of the Fifteenth Judicial District,
In and for the County of Daniels,
The Honorable Leonard Langen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John F. Lynch; Lynch & Chisholm, Great Falls,
Montana
For Respondent:
George D. Goodrich; Garlington, Lohn & Robinson,
Missoula, Montana
Submitted on Briefs: April 6, 1995
Decided: May 9, 1995
Filed:
Justice W. William Leaphart delivered the Opinion of the Court.
Judy Pulst King (King) appeals from an order of the Fifteenth
Judicial District Court, Daniels County, granting summary judgment
and dismissing her claim based on Montana's pretermitted heir
statute. We affirm.
We restate King's two issues as follows:
1) Did the decedent disinherit King in his will, thereby
invoking the Montana pretermitted heir statute?
2) Is King's claim barred by collateral estoppel or res
judicata?
Ted Skornogoski (Skornogoski) died on March 6, 1993. His will
was admitted to probate on March 31, 1993. His wife, Evelyn
Skornogoski is the personal representative. The will states that
Skornogoski had no children and effectively disbursed his estate.
King asserts that she is Skornogoski's daughter and therefore is
entitled to a fifty percent share of his estate by virtue of
Montana's pretermitted heir statute. Section 72-2-602, MCA (1991).
King bases her claim on information allegedly provided to her
shortly after her mother, Trudy J. Pulst (Pulst), learned that
Skornogoski had died. King alleges that near the end of 1963,
Skornogoski had sexual intercourse with Pulst and, in 1965, paid
three thousand dollars to settle a paternity suit with Pulst based
on King's birth.
Skornogoski's will states that "I have no children and no
living decedents." The essence of King's argument is that
Skornogoski must have thought she was dead when he wrote his will.
2
She argues that "the & reason offered [in Skornogoski's will] as
to why he did not provide for such children is that he thought he
had 'no living descendants.'" That is to say that Skornogoski
would have included King in his will but he thought she was dead.
King asserts that for Skornogoski to write in his will that "I have
no children and no living decedents" proves his mistaken belief
that he thought his living children were dead and that to find
otherwise would be to ignore the operative language of the will.
In support of her claim, King cites to § 72-2-602(2), MCA
(1991), which provides:
If at the time of execution of the will the testator
fails to provide in his will for a living child solely
because he believes the child to be dead, the child
receives a share of the estate equal in value to that
which [she] would have received if the testator had died
intestate.
This section is adopted almost verbatim from the Uniform Probate
Code, 5 Z-302. The comment of the Joint Editorial Board for the
Uniform Probate Code for code § 2-302 (1991) states that:
This section provides for both the case where a child was
born or adopted after the execution of the will and not
foreseen at the time and thus not provided for in the
will, and the rare case where a testator omits one of his
existing children because of mistaken belief that the
child is dead.
The Editorial Board comment to § 2-302, MCA (1991) (revised and
renumbered), states that this section:
addresses the problem that arises if at the time of
execution of the will the testator fails to provide in
his or her will for a living child solelv because he or
she believes the child to be dead. Extrinsic evidence is
admissible to determine whether the testator omitted the
living child solelv because he or she believed the child
to be dead. [Emphasis added.]
3
To evidence that Skornogoski did not believe that King was dead
when he executed his will, the District Court was presented with
affidavits of Evelyn Skornogoski and S. Thomas Darland, the
attorney who prepared Skornogoski's will. Both of these affidavits
evidence that Skornogoski did not believe that he had any dead
children.
King presents no evidence to show that Skornogoski thought
that King was his child and that when he executed his will he
thought she was dead. Based on the record, it appears that
throughout Skornogoski's life, including when he drafted his will,
he acted as though he had no children. King presents no evidence
to show that Skornogoski omitted her from his will "solely"
because, when he executed his will, he believed she was dead.
Absent any evidence that Skornogoski failed to provide in his will
for a living child solely because he believed the child to be dead,
King's claim must fail.
"Our standard of review on a grant of summary judgment is
identical to that of the trial court's." Minnie v. City of Roundup
(1993), 257 Mont. 429, 431, 849 P.2d 212, 214. "Summary judgment
is proper only when no genuine issue of material fact exists and
the moving party is entitled to judgment as a matter of law. Rule
56 Cc) , M.R.Civ.P." Spain-Morrow Ranch, Inc. v. West (1994), 264
Mont. 441, 444, 872 P.2d 330, 331-32. The District Court correctly
granted summary judgment for this issue.
Because of our holding for this issue, we need not consider
King's second issue.
4
Dismissed.
Pursuant to Section I, Paragraph 3 (c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter, and West Publishing Company.
We copyg:
5
May 9, 1995
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
John F. Lynch
LYNCH LAW FIRM
P.O. Box 2265
Great Falls, MT 59403
George D. Goodrich
GARLINGTON, LOHN & ROBINSON
P.O. Box 7909
Missoula, MT 59807
S. Thomas Darland
P.O. Box 335
Plentywood, MT 59254
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA