Opinion
No. 14769
Submitted on Briefs August 2, 1979.
Decided October 25, 1979.
Appeal from the District Court of Lewis and Clark County. First Judicial District. Hon Peter G. Meloy, Judge presiding.
William R. Taylor, Deer Lodge, Lloyd J. Skedd, Helena, for plaintiffs and appellants.
Leonard J. Haxby, Butte, Robert Swanberg, Thomas H. Mahan, Helena, for defendants and respondents.
Mary H. Colbo, guardian of William D. Scott, appeals from an order of the Lewis and Clark County County District Court which dismissed her petition to have William D. Scott's Will declared to be his last valid Will. The District Court refused to pass on the validity of a Will of a living person. We agree.
Scott allegedly executed a Will on October 19, 1965, and later one of the defendants allegedly tore it into pieces. Scott is now alleged to be senile. Plaintiff apparently recovered the pieces of the torn-up Will, put them together again, and now seeks to have this advance declaration of validity.
In filing her petition, plaintiff cited absolutely no legal basis for the District Court to grant such relief, and her counsel must be aware that jurisdiction of a District Court to determine the validity of a Will is strictly statutory (sections 72-3-101(1) and 72-3-111-(1), MCA), and that a petition to probate a Will must be dismissed unless the person alleged to have executed the Will is dead (section 72-3-313(3), MCA). Moreover, as the District Court correctly observed, even the Uniform Declaratory Judgments Act (section 27-8-101, MCA, et seq.) does not expand the statutory power to probate Wills. The reasons are too numerous and too obvious to mention why the District Court was correct in dismissing plaintiff's petition.
This case is a prime example of a suit which should never have been filed in the District Court and of an appeal which should never have been taken. The courts should not be cluttered with suits such as this which are so patently frivolous on their face.
The order of dismissal of the District Court is affirmed.
MR. CHIEF JUSTICE HASWELL, JUSTICES DALY, HARRISON and SHEEHY concur.