423 P.2d 851 | Mont. | 1967
delivered the Opinion of the Court.
This is ah appeal from an order of the district court denying plaintiff’s motion to set aside a decree of distribution and order of final discharge in a- probate matter.
The will of Yerna Werning was admitted to probate on July 6, 1965. The only beneficiaries were Lawrence J. Werning, plaintiff-appellant here and son of Verna Werning, and Dorothea C. McFarland, defendant-respondent and a niece of Verna Werning. Suit was brought against the respondent in her capacity as executrix of the estate of-Verna Werning.
Section 91-3606, R.C.M.1947, provides for disputed and contingent claims and requires that the amount of such claims be paid into court pending resolution of the claim. It is the position of the appellant that there was no provision in the decree of distribution for his disputed claim and that the executrix was improperly discharged. The basic question is whether the failure of appellant to make service of the summons on the respondent before the final decree and discharge bars this action.
We hold that it does. The purpose of section 91-2709 is to compel a creditor whose claim has been rejected to promptly seek enforcement of such claim. Pierce v. Pierce, 108 Mont. 42, 89 P.2d 269. The appellant argues that the mere filing of a complaint satisfies the admonition of section 91-2709 to “bring suit” within three months after a claim is rejected by the executor. Under this analysis, the creditor’s suit would be governed by the usual provisions of the Montana Rules of Civil Procedure. Rule 41(e) bars an action if a summons is not obtained within one year after the complaint is filed or if service of summons and return is not made within three years.
It appears from the record that the appellant was issued a summons when the complaint was filed on October 22, 1965. Allowing the appellant up to three years to make service
This result is supported by the fact that when the decree of final distribution is entered and the executor is discharged, the executor no longer has any legal relationship to the estate and the court no longer retains jurisdiction over the executor. State ex rel. Petters & Co. v. District Court, 76 Mont. 143, 245 P. 529. Because the respondent herein was not personally served prior to discharge, the court below was without jurisdiction to entertain this action.
The appellant contends that even though section 91-2709 was not fully complied with, the final decree may be set aside on grounds of inadvertence or fraud. Authority cited is section 91-3516 of the Probate Code and Rule 60(b), M.R.Civ.P.
The allegation of fraud is based on the contention that the respondent had actual notice of appellant’s suit prior to entry of the final decree and, having such notice, failed to bring this claim to the attention of the court. There is no duty on the part of the executor to protect a creditor’s claim in this fashion, and other jurisdictions have so held. Chandler v. Probate Court for Kootenai County, 26 Idaho 173, 141 P. 635. There is no indication that the respondent was remiss in any of her statutory duties as executrix. Publication of notice of hearing on respondent’s petition for decree of distribution and discharge was duly made. There is no evidence that respondent attempted to mislead the appellant or cause him to sleep on his rights. Appellant had every opportunity to protect his
While the failure of appellant to make service prior to the discharge of the executrix may have been through inadvertence, both section 91-3516 and Rule 60(b) rely upon the discretion of the district court, and relief will be granted only when deemed necessary and proper by the court below. In the absence of manifest abuse of this discretion, which we do not find here, the ruling of the District Court must be affirmed. In re Bank’s Estate, 80 Mont. 159, 260 P. 128.
For the foregoing reasons the judgment is affirmed.
