                               No. 85-506
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1986




IN THE MATTER OF THE ESTATE OF

CLAYTON FOGERTY, Deceased.




 lPEAL FROM:     District Court of the Eighteenth Judicial District,
                 In and for the County of Gallatin,
                 The Honorable Thomas Olson, Judge presiding.

COUNSEL OF RECORD:

         For Appellant:
                 Morrow, Sedivy & Bennett; Lyman H. Bennett, 111,
                 Bozeman, Montana

         For Respondent :
                 Richard Kalar, Emigrant, Montana




                                   Submitted on Briefs: Feb. 26, 1986
                                     Decided:   May 271 1986


         MAY 2 '1 1986
Filed:
Mr. Justice Fred J. Weber delivered the Opinion of the Court.


        Following the death of Clayton Fogerty (decedent), Anna
Pratt filed a petition requesting adjudication of intestacy
and appointment as personal representative.                 After bench
trial, the Gallatin County District Court denied the peti-
tion.        Anna Pratt appeals.   We affirm.
        The issues on appeal are:
        1.     Did the District Court err in holding the decedent's
will had not been revoked?
        2.     Did the District Court err in naming Richard Kalar
personal representative of decedent's estate?
     Decedent died in January 1985.               His will, which was
dated June 14, 1984, was admitted to informal probate and
Richard       Kalar   was   appointed    as   personal   representative,
according to the terms of the will.              The will contained a
specific devise to Anna Pratt (petitioner) and named Church
Universal and Triumphant residuary legatee:
     SECOND: I give, devise and bequeath unto Anna
     Pratt       ...
                  [a] 1981 Fleetwood Mobile Home size
     28x66       ..
               .[and] [a111 the furniture, appliances
     and household goods        ..
                             .in the mobile [home]            ...
     THIRD: I give, devise and bequeath unto Church
     Universal and Triumphant           ..
                                 .whatever cash on hand
     or money in the bank          ..
                              .I also give, devise and
     bequeath my present car or whatever car I might
     have to Church Universal and Triumphant, and all
     assets other than the Mobile and furnishings.             . .
On the belief that this will had been revoked, Anna Pratt
petitioned the court to declare decedent intestate and to
appoint her as personal representative.


     Did the District Court err in holding the decedent's
will had not been revoked?
        I n t h e e a r l y p a r t o f J a n u a r y 1985, d e c e d e n t had a h e a r t

a t t a c k i n Bozeman.         I n i t i a l l y , he was l u c i d and c o h e r e n t .         On

January         14,   1985,       after      respiratory          arrest,         decedent        was

p l a c e d on a r e s p i r a t o r and t u b e s were r u n down h i s t h r o a t .

This     limited h i s         communication.           He was n o t a b l e t o             speak.

        A f t e r b e i n g n o t i f i e d t h a t d e c e d e n t was i n t h e h o s p i t a l ,

Anna P r a t t f l e w t o Bozeman from Sacramento, C a l i f o r n i a .                         Her

t e s t i m o n y was e s s e n t i a l l y a s f o l l o w s :        O J a n u a r y 1 5 , 1985,
                                                                        n

during      a    period      when Anna          Pratt      thought         t h e d e c e d e n t was

awake and l u c i d ,         s h e asked d e c e d e n t i f he wanted t o r e v o k e

his w i l l .      Anna P r a t t t e s t i f i e d t h a t d.ecedent moved h i s hea.d

i n such a m a t t e r a s t o i n d i c a t e " y e s . "         She f u r t h e r t e s t i f i e d

that     she c a l l e d decedent's             attending nurse,               asked t h e same

q u e s t i o n and a g a i n r e c e i v e d an a f f i r m a t i v e nod o f t h e head;

and    then      t o r e up t h e w i l l       in    f r o n t of       t h e nurse       and t h e

decedent.          Anna P r a t t c o n t e n d s t h i s was a n a d e q u a t e r e v o c a -

t i o n of t h e w i l l .     Decedent d i e d 1 0 d a y s l a t e r .

        The t e s t i m o n y o f t h e a t t e n d i n g d o c t o r and n u r s e d i r e c t l y

c o n t r a d i c t e d t h e t e s t i m o n y o f Anna P r a t t .      The D i s t r i c t C o u r t

concluded t h a t t h e d e c e d e n t d i d n o t have t h e c a p a c i t y t o make

o r d i r e c t voluntary d e s t r u c t i o n of h i s w i l l ,           stating i n part:

        4 . M r . F o g e r t y was c o n f i n e d t o t h e h o s p i t a l h a v i n g
        s u f f e r e d m u l t i p l e h e a r t a t t a c k s and c o m p l i c a t i o n s
        which e v e n t u a l l y l e d t o h i s d e a t h on J a n u a r y 25,
        1985.

        5. T h a t        nurse       Kathleen        Wilson        was     attending
        C l a y t o n 0. F o g e r t y a s h i s p e r s o n a l n u r s e on J a n u a r y
        1 5 , 1985, c o n t i n u o u s l y from 3 : 0 0 p.m. u n t i l a f t e r
        t h e p e t i t i o n e r l e f t M r . F o g e r t y ' s bedsid-e.



        8. A t a p p r o x i m a t e l y 7:30 p.m. M r . F o g e r t y momentar-
        i l y opened h i s e y e s whereupon Anna P r a t t produced a
        d u p l i c a t e copy o f t h e w i l l and h e l d it b e f o r e him.
        She a t t e m p t e d t o a s k M r . F o g e r t y i f h e c o n s e n t e d t o
        t h e d e s t r u c t i o n o f t h e w i l l whereupon M r . F o g e r t y ' s
        head moved i n a s l i g h t manner.                 There i s i n s u f f i -
        c i e n t e v i d e n c e t o show t h a t h e i n any way i n t e n d e d
     that Anna Pratt destroy the will or that he was
     responding to any verbal statement by Anna Pratt.
    9. Due to Mr. Fogerty's seriously ill condition he
    did not have the cognitive capacity to make a
    knowing and voluntary destruction of his will nor
    did he possess the capacity to direct the actions
    of Anna Pratt.
    Nurse Kathleen Wilson, who cared for decedent while he
was in the intensive care unit, testified with regard to the
tearing up of the will as follows:
    I was on the 1-eft side of his bed and I was occu-
    pied with handling medications or something   . . .
    at his bedside.   She told me that she was getting
    ready to leave; that she had to go ahea-d and go
    home for the evening. She bent over and like had
    Clayton's hand and she evidently had her purse with
    the folded copy of the will in the other hand. I
    could not see it at that time. She said, "Clayton,
    Clayton" and he opened his eyes for just very
    briefly and she said, "Is it all right with you if
    I tear up this up this will?" And she held up the
    little piece of paper, the folded paper, which I
    don't know if he saw or not. He kind of closed his
    eyes and nodded his head down at which point she
    tore up the paper. I was totally amazed.

    Dr. Richard Tenney, decedent's attending physician, did
not testify as to the actual tearing up of the will, as he
was not personally present.    However, he did testify with
regard to the capacity of the decedent, as follows:
    Again, I go back to what I said, that even though
    they have a lucent [sic] point during which, say, I
    examine them in the morning and I say, "How are
    you?" And he shakes his head     . . .  they're so
    critically ill that I'm not totally sure when you
    ask them for a yes or no answer, whether you ask
    them to shake yes or no, up and down or whatever,
    that they're actually aware of what they're saying.
    They may be giving you an answer just to get you
    off their back because they're so weak. If I have
    to say yes or no, are you going to ask me:      Can
    they make good decisions while they're patients
    like this, I say no, but there may be a point where
    they're asked a specific question where they may be
    lucid at that time, but categorically speaking,
    these people are not capable of making good
    decisions.
    After a careful examination of the transcript, we con-
clude there is both substantial and compelling evidence that
decedent did not have the capacity to revoke his will.        We
affirm the holding of the District Court that the decedent's
will had not been revoked, and the will was properly admitted
to probate.


     Did the District Court err in naming Richard Kalar
personal representative of the decedent's estate?
     Petitioner contends Mr.      Kalar   should be   removed as
personal representative because he failed to post a bond,
violating S 72-3-514, MCA.
     On May 20, 1985, the day of trial, on the basis that Mr.
Kalar had not received notice of the demand to post bond, the
motion to remove Mr. Kalar was denied.      The transcript dis-
closes the following conversation:
    THE COURT:   [Dlid you serve any of these papers on
    Mr. Kalar?
    MR. BENNETT: I requested the Clerk of Court to do
    so, your Honor. I did not do it personally.
    THE COURT:   Have you reviewed the file to see if
    the Clerk did that?
    MR. BENNETT: No. I haven't, your Honor.
    MR. KALAR: I see the demand in the file, sir, but
    I never received a copy of this.
     ...
     THE COURT: The motion will be denied at this time
     on the basis that there's no showing that service
     has been made upon the personal representative.

We find no abuse of discretion.
     Petitioner now asks the Court to remove Mr. Kalar be-
cause he still has not posted a bond, even after receiving
actual notice on the day of trial.    The District Court is the
proper forum for this issue that arises out of subsequent
facts and circumstances not presently before this Court on
appeal.
    We affirm.
We concur:
                 /A'




      Justices
