                                  No. 12189
           IN THE SUPREME COURT OF THE STATE OF MONTANA




C P HEIDLEBAUGH, JR.,
 . .
                             Plaintiff and Appellant,


DANIEL J. KORN et ale,
                             Defendants and Respondents.


Appeal from: District Court of the Eighth Judicial District,
             Honorable Paul G. Hatfield, Judge presiding.
Counsel of Record:
      For Appellant:

              Montana    .
             Graybill, Graybill, Ostrem and Warner, Great Falls,
             John V Barron argued, Great Falls, Montana.
                   .
     For Respondents:
             At    u&-
     G+t          %,
             Sc midt &'~ilbert & Jungers, Fort Benton, Montana.
             Korn, Warden, Walterskirchen and Chxistiansen,
              Kalispell, Montana.
             Gary R Christiansen a m , Kalispell, Montana.
                   .
             Roglien, Hash and ~'Brien,  Kalispell, Montana.


                                         Submitted: April 17, 1972


Filed:       3, $ 197i


                                               Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.

     This is an action under the Montana Uniform Declaratory
Judgments Act, sections 93-8901 through 93-8916, R.C.M.   1947,
seeking to adjudge the rights of parties under a farm lease.
Motions for summary judgment were filed by all parties to the
action and on October 7, 1971, the district court of the eighth
judicial district, county of Chouteau, Judge Paul G. Hatfield
presiding, entered judgment in favor of the defendant Daniel J.
Korn, executor of the estate of Thomas F. Wainwright, deceased,
     In July 1966, a farm lease was entered into by Thomas F.
Wainwright as lessor and C. P. Heidlebaugh, Jr. as lessee, for
land in Chouteau County.     By the terms of the lease the expira-
tion date was November 1, 1969, unless sooner terminated as
provided for in the lease.    The lease contained the following
clause:
     "* * * that second party is hereby given an option
     to meet any bid that may be made for said land, in
     the event said land shall be offered for sale during
     the term of this lease. I I
     Plaintiff Heidlebaugh in his deposition admitted that on
July 28, 1967, Thomas Wainwright attempted to terminate the lease
by written notice.   This was followed by a second written notice
dated September 4, 1968.     On October 1, 1968, the lands in ques-
tion were leased to Louis V. Bierwagen by Wainwright with the
full knowledge of Heidlebaugh, who was allowed to harvest the
crop planted on the land that he had summer fallowed in 1968.
     On November 29, 1968, Thomas F. Wainwright died and his
will, dated August 31, 1954, was duly probated in Flathead County
by Daniel J. Korn, as executor. A decree of distribution was
made and entered on August 11, 1969, wherein the farm lands in
question here were distributed to Lorraine Wainwright (wife)
and Donald Jack Wainwright (adopted son), subject to the right
of Ray M. Wainwright ( natural son) to purchase the farm lands
                      a
at the appraised value fixed in the estate.   Ray M. Wainwright
was one of the devisees under the will of Thomas F. Wainwright.
     At no time during the life of Thomas F. Wainwright or there-
after were the lands in question offered for sale to the public,
nor were any bids for the purchase thereof ever invited or re-
ceived by any of the defendants herein.
     Subsequently Ray M. Wainwright exercised his right to
purchase, pursuant to his father's will.
     Plaintiff alleges he never had an opportunity to meet the
price paid by Ray M. Wainwright for the lands, even though a
demand was made for such right.
     The trial judge in his findings of fact, conclusions of law
and judgment held:   (1) That said farming lease was terminated
by notices on July 28, 1967, and again on September 4, 1968,
prior to the death of Thomas F. Wainwright; (2) that a subsequent
lease by Thomas F, Wainwright to Louis V. Bierwagen, dated
October 1, 1968, effectively terminated the prior lease to C,P.
Heidlebaugh; ( ) that the transfer of the subject property to
              3
Ray M. Wainwright was a testamentary disposition and not a sale;
( ) that the failure of C. P. Heidlebaugh, Jr., to protest or
 4
resist the termination of lease served as a waiver of his rights
thereunder and that he is thereby estopped to challenge ownership
in Ray M. Wainwright; and (5) that the notice of termination
followed by the subsequent lease to Louis V, Bierwagen negated
any intention to offer the land for sale.
     Although plaintiff-appellant presents four issues on appeal,
we find the first issue to be controlling:
     "Where property is devised to one heir subject to the
right of another heir to purchase the same at a stated price,
does the granting of said right of purchase amount to an offer
of sale upon which a right of first refusal or preemptive right
in a third party may operate?"
     Appellant relies on Weintz v. Bumgarner, 150 Mont. 306,
434 P.2d 712. Weintz is the law in this state, but is not
applicable to the facts of this case.
     Here, the will of decedent Thomas F. Wainwright gave his
son Ray M. Wainwright a right to purchase at a price set forth
in the appraisal.     This provision of the will is not a sale as
contemplated by the option to purchase, for the right to purchase
comes by way of the will to Ray M. Wainwright.    Unlike the facts
of Weintz where the heirs collectively made a sale to one of the
heirs, here,Ray M. Wainwright received the right to purchase by
testamentary deposition.
     In Brown v. Thornton, 150 Mont. 150, 155, 432 P.2d 386,
this Court said:
     It
      When on the record there is no genuine issue as to
     any material fact before the court the burden is on
     the party opposing the motion for summary judgment to
     present facts of a material and substantial nature
     raising a genuine issue. The trial judge has no duty
     to anticipate possible proof that might be offered.
     To impose such a duty would be to demand clairvoyance
     not possessed by even a trial judge."
     In view of the above, we find summary judgment for
respondents proper.    The judgment of the district court is af-
firmed.
/   /chief Justice




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