                                                             No.      14769

             I N THE SUPREME COURT O F THE STATE OF MONTANA




MARY H . C O L B 0 , a s G u a r d i a n and C o n s e r v a t o r
of t h e E s t a t e elf WILLIAM D. SCOTT, a n
i n c a p a c i t a t e d and p r o t e c t e d p e r s o n , and
JACK SCOTT,

                                                      P l a i n t i f f s and A p p e l l a n t s ,



MILTON A.        COTY, J R . ,                 THOMAS H.          MAHAN,     and
CALVIN A.        COTY,

                                                      D e f e n d a n t s and R e s p o n d e n t s .



A p p e a l from:                   D i s t r i c t C o u r t of t h e F i r s t J u d i c i a l D i s t r i c t ,
                                    H o n o r a b l e P e t e r G. M e l o y , J u d g e P r e s i d i n g .

C o u n s e l of R e c o r d :

             For A p p e l l a n t :

                             W i l l i a m R. T a y l o r , D e e r L o d g e , M o n t a n a
                             L l o y d J. Skedd, H e l e n a , M o n t a n a

             For R e s p o n d e n t :

                             L e o n a r d J. H a x b y , B u t t e , M o n t a n a
                             Robert Swanberg, Helena, Montana
                             T h o m a s H. M a h a n , H e l e n a , M o n t a n a



                                                                      S u b m i t t e d on B r i e f s : A u g u s t 2 , 1 9 7 9

                                                                         Decided:          mf 2 5 1cpg
Filed :      8Cf 2 5 !979

             /   I   ,   ,     .'    .    '    /. ; ,             i
                                                  Clerk       .
                                                              '
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.

        Mary H. Colbo, guardian of William D. Scott, appeals
from an order of the Lewis and Clark 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.




  We Concur:




          hief Justice




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