                                      No. 01-363

             IN THE SUPREME COURT OF THE STATE OF MONTANA

                                     2002 MT 76N


IN THE MATTER OF THE ESTATE OF

THOR K. LANDE, Deceased.




APPEAL FROM:      District Court of the Twenty-Second Judicial District,
                  In and For the County of Big Horn,
                  Honorable Blair Jones, Judge Presiding


COUNSEL OF RECORD:

           For Appellant:

                  Robert E. LaFountain, Attorney at Law, Billings, Montana

           For Respondents:

                  Ingrid Gustafson, Graves, Toennis & Gustafson, Billings, Montana

                  Peter T. Stanley, Attorney at Law, Billings, Montana

                  Brent R. Cromley, Moulton, Bellingham, Longo & Mather, Billings,
                  Montana



                                                Submitted on Briefs: January 10, 2002

                                                           Decided: April 18, 2002

Filed:

                  __________________________________________
                                    Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c) Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent but shall be filed as a

public document with the Clerk of the Supreme Court and shall be reported by case title,

Supreme Court cause number and result to the State Reporter Publishing Company and to

West Group in the quarterly table of noncitable cases issued by this Court.

¶2     Kip Lande (Kip) appeals from the order of the Thirteenth

Judicial District Court, Big Horn County, distributing the estate

of Thor K. Lande (Cubby).              We affirm.

¶3     Kip raises the following issues on appeal:

¶4     1.     Did the District Court have subject matter jurisdiction

              to probate Thor K. Lande’s estate?

¶5     2.     Did the District Court correctly apply state law, rather

              than federal law, to determine undue influence?

¶6     3.     Did the District Court err in its distribution

              of the estate?

                        FACTS AND PROCEDURAL BACKGROUND

¶7     The facts of this case are more fully set out in our previous

opinion, Estate of Lande, 1999 MT 162, 295 Mont. 160, 983 P.2d 308.

 The pertinent facts for purposes of this appeal are as follows.

Cubby owned a large ranch located within the exterior boundaries of

the Crow Indian Reservation, the majority of which was trust

property.       Cubby was an enrolled member of the Crow Tribe.

¶8     Cubby executed a will on December 30, 1996, creating three 15-

year $50,000 trusts with his children Clifford, Kande and Kip as


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named beneficiaries.        The remaining corpus of each trust was to be

distributed equally to the beneficiaries on expiration of the

trust.   The will also created a 15-year Ranch Property Trust, with

the three children each receiving 10 percent of the income produced

by the ranch.       At the expiration of the Ranch Property Trust, the

ranch was to be divided equally between another son, Joshua, and

the daughter of Cubby’s nephew, Vickie.               Cubby died on January 4,

1997.

¶9    Clifford,     Kande   and    Kip   (collectively,      the   Contestants)

contested the validity of the December 30              will, disputing Cubby’s

testamentary capacity and claiming that Vickie unduly influenced

Cubby at the time he executed the December 30 will.                     The will

contest was tried to a jury, and the jury returned a special

verdict finding that Cubby had testamentary capacity and was not

unduly influenced when he executed the will.
¶10   The District Court admitted Cubby’s will to probate and

confirmed     the    designated     co-personal       representatives.         The

Contestants     appealed,         and    we    affirmed.         The    personal

representatives subsequently claimed attorney fees and costs on

behalf of Cubby’s estate.          The District Court ultimately ordered

the Contestants to pay $76,108.30 for attorney fees and costs.                 The

Contestants appealed, and this Court affirmed in part and reversed

in part.

¶11   Subsequently,     the    District       Court    entered   an    Order   for

Distribution of Estate.       The court ordered the estate to distribute

$60,000 to each of the Contestants, finding that it was impractical



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and economically infeasible to sustain a Trust for the Contestants

as    required     by     the   will.       The      court    found     that    a   lump     sum

distribution “as full and final distribution of all estate assets

to which each is entitled,” was in the best interests of the estate

and the Contestants.            This appeal followed.

                                         DISCUSSION

¶12    Did the District Court have subject matter jurisdiction to

probate Cubby’s will?

¶13    Kip argues that the District Court did not have subject matter

jurisdiction “over trust or non-trust property owned or controlled

by Tribal members within Crow Reservation boundaries.”                              He argues

that because Cubby was a tribal member and was domiciled on the

reservation,        the    tribal      court        had   exclusive      jurisdiction         to

determine the validity of the will and to probate and distribute

the estate.

¶14    It is well-settled that the issue of a court’s subject matter jurisdiction may be presented

at any time. Balyeat Law, PC v. Pettit, 1998 MT 252, ¶ 15, 291 Mont. 196, ¶ 15, 967 P.2d

398, ¶ 15. See also Rule 12(h)(3), M.R.Civ.P. A party can never waive or consent to subject

matter jurisdiction where there is not a basis for the court to exercise jurisdiction. Balyeat

Law, ¶ 15.

¶15    This Court has outlined a three-part test for determining whether the state courts of

Montana have jurisdiction over transactions occurring on the reservation: (1) whether the

federal treaties and statutes applicable have preempted state jurisdiction; (2) whether the

exercise of state jurisdiction would interfere with reservation self-government; and (3)


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whether the Tribal Court is currently exercising jurisdiction or has exercised jurisdiction in

such a manner as to preempt state jurisdiction. Krause v. Neuman (1997), 284 Mont. 399,

404, 943 P.2d 1328, 1331 (citing State ex rel. Iron Bear v. District Court of the Fifteenth

Judicial Dist. (1973), 162 Mont. 335, 346, 512 P.2d 1292, 1299).

¶16      Federal statutes clearly preempt state jurisdiction over probate of Indian trust

property. 25 U.S.C. § 373 (allowing trust lands to be devised by will, provided that “no will

so executed shall be valid or have any force or effect unless and until it shall have been

approved by the Secretary of the Interior”). However, federal preemption is limited to “only

the trust or restricted property in the estate of an Indian decedent.” 25 C.F.R. § 15.3.

¶17    In this case, the District Court did not exercise jurisdiction

over the trust property.                  The Department of the Interior has

exclusive jurisdiction over distribution of Cubby’s trust property

and    has      presumably      exercised          that    jurisdiction      here.         The

distribution here concerned only cash, which is clearly not subject

to federal jurisdiction.              We conclude that the District Court had

subject matter jurisdiction.

¶18     Did the District Court correctly apply state law, rather than federal law, to determine

undue influence?

¶19    Kip argues that the District Court incorrectly applied Montana

law, rather than federal law, to determine undue influence.                                Kip

asserts that under Montana law, undue influence is never presumed

and    must     be    proven,     while     under         federal   law,    a   rebuttable

presumption of undue influence arises when a principal beneficiary

under     the    will    was    in    a   confidential         relationship       with     the

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testator.     Kip argues that the federal test is “the proper test

[in] cases involving Indian trust property.”

¶20   As noted above, only trust property is subject to federal

jurisdiction    and     no   trust    property       was   adjudicated     in    this

proceeding.    We conclude that the District Court correctly applied

Montana law to the cash distribution.

¶21   Did the District Court err in its distribution of the estate?

¶22   Kip next argues that the District Court erred in ordering a

distribution of the assets of the estate contrary to the provisions

of the will without specific findings as to why the court did not

adhere to the will provisions.          He argues that absent a unanimous

agreement among the devisees as to distribution or absent a waiver

by    the   affected    devisee,      the       District   Court   erred   in    its

distribution.        Unfortunately, Kip does not provide any legal

authority for this argument.          His only legal argument is that the

District     Court     did   not     provide       specific   findings     “as    to

calculations upon which the district court determined specific

amounts which were to be distributed to each of the devisees.”                     He

cites to this Court’s decision in Estate of Craddock (1977), 173

Mont. 8, 566 P.2d 45, for the proposition that the case should be

remanded to the District Court to provide “such information in

order that the Supreme Court not be forced to speculate as to the

reasons for the district court’s decision.”
¶23   In Craddock, the district court entered a contested will to

probate without making any findings whatsoever.                The contestant to

the will appealed the decision and we remanded, instructing the



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district court to make findings of fact and conclusions of law

based upon the previously held hearing.        Craddock, 173 Mont. at 11-

12, 566 P.2d at 46.           Our decision was based on Rule 52(a),

M.R.Civ.P., which “makes it mandatory that the district court make

findings of fact and conclusions of law in all actions tried upon

the facts without a jury.” Craddock, 173 Mont. at 11, 566 P.2d at

46.

¶24   Here, the District Court did make findings of fact.      The court

stated, “The Court finds such distribution and settlement is

reasonable for the estate and is consistent with the orderly

administration      and   closing   of   the   estate.    Further,   [the

Contestants] under this distribution and settlement will likely

receive more than is currently due or will be due them under the

Will of Thor K. Lande in consideration of inheritance taxes and

attorney’s fees for which they would otherwise be responsible.”
¶25   We conclude that the District Court did not err in its

distribution to Kip.

¶26   The District Court is affirmed.



                                         /S/ W. WILLIAM LEAPHART


We Concur:

/S/   KARLA M.   GRAY
/S/   PATRICIA   COTTER
/S/   TERRY N.   TRIEWEILER
/S/   JAMES C.   NELSON




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