DocketNumber: No. 11045
Citation Numbers: 147 Mont. 538, 416 P.2d 24
Judges: Adair, Castles, Doyle, Harrison
Filed Date: 6/27/1966
Status: Precedential
Modified Date: 9/9/2022
delivered the Opinion of the Court.
This is an appeal from an order granting a motion to dismiss appellants-contestants’ petition to contest the will of B. N. Willner, deceased.
This case mainly involves the procedural steps that must be taken to validly initiate a contest of a will. The facts are not in dispute.
The relevant code sections, as far as this appeal is concerned, dealing with the contest of a will are R.C.M.1947, §§ 91-1101 and 91-1102. Section 91-1101 provides in part:
“When a will has been admitted to probate, any person interested may, at any time within six months after such probate, contest the same or the validity of the will.” (Emphasis supplied.)
Section 91-1102 provides in part:
“Upon filing the petition, a citation must be issued to the executors of the will # (Emphasis supplied.)
The issue raised by this appeal is whether the petition contesting the will was properly dismissed since the citation was not issued within six months following the admission of the will to probate. This issue is not new to this court. As noted in the order appealed from, it was presented to this court in In re Fiedler’s Estate, supra. That case interpreted Section 91-1101 (the statutory period was one year at the time the Fiedler case, supra, arose, and reduced by amendment to six months in 1963) and Section 91-1102. We held in the Fiedler Case, supra, that failure to issue the citation within the statutory period was a fatal defect to the contest of the will. This is still the rule of law in Montana today.
“Instead, we prefer to base our decision on the fact that Gertrude Tafoya, the sole beneficiary, was never served, nor did she ever enter her appearance, and that being a necessary and indispensable party, the action could not proceed without her.
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“There can be no doubt that Gertrude Tafoya, or her personal representative, was a necessary and indispensable party, and not having been made a party the trial court did not err in sustaining the motion seeking dismissal of the cause. Its action is affirmed.”
That clearly is not the issue in this case.
The district court’s order correctly interpreted the Fiedler Case, supra.
The order appealed from is affirmed.