                                No. 84-429
               IN THE SUPl3EME COURT OF THE STATE OF MONTANA
                                    1985



IN RE THE MATTER OF THE ESTATE OF
ALICE DULLENTY THOMAS, Deceased.




APPEAL FROM:    District Court of the Thirteenth Judicial District,
                In and for the County of Yellowstone,
                The Honorable Robert Holmstrom, Judge presiding.


COUNSEL OF RECORD:

       For Appellant:

               Lynaugh, Fitzgerald & Hingle; Michael G. Eiselein
               argued, Billings, Montana

       For Respondent:

               Jones Law Firm; W. Blair Jones argued, Billings,
               Montana


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                                Submitted:                  March 11, 1985
                                  Decided:                  May 9, 1985




                                Clerk
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.


     The heirs of decedent, Alice Thomas, appeal an order of
the Yellowstone County District Court which held that while
sitting in probate, it lacked jurisdiction to consider the
propriety of certain pre-dea.th transfers made according to
decedent's instructions, by her personal representative, John
W. "Bil.1" Bresnahan.
     The sole issue presented here is whether the District
Court, sitting in probate, has jurisdiction to determine
title to real property.           The District Court sitting as a
court of probate d.etermined that it did not.
     We affirm.
     Albert Thomas married Alice Dull.enty in 1939.                   They
spent most of their married life in Billings, Montana.                  In
January 1980, Albert and Alice signed identical wil-ls, each
leaving his or her property to the surviving spouse, and if
neither spouse survived, then to the Thomas heirs.
     On   February    2,    1980, Alice     changed     her   mind,    and
executed a new will, similar to the first will, but naming
her sister's son, Bill Bresnahan, as personal representative
of her estate.       Also on February 2, 1980, Alice signed a
power of attorney, naming Bill Bresnahan as attorney-in-fact,
giving him "full power to do and perform all and every act"
and "every proper power necessary to carry out the purposes
for which this power is granted."
     According to Bresnahan, the will and power of attorney
constituted Alice's estate plan.            Bresnahan states Alice
instructed   him     that   she    wanted   to   take    care   of     two
Yellowstone Avenue real properties in Billings for as long as
she was able, and that Rresnahan should thereafter transfer
the   properties   to     six    specified Dullenty heirs, on          the
condition that they hold. the properties in trust for Al-ice
for her life and for Albert for his life, to the extent
necessary to sustain them.
      On   April   16,    1982, Bresnahan      transferred      the   real
property to the Dullenty heirs, after both Alice and Albert
were placed in a nursing home. Alice died on June 25, 1982.
      Bresnahan entered her will            into probate, listing an
inventory which excluded the Yellowstone Avenue properties.
By that time, Albert was incompetent, and his sister, Eleanor
Barclay, had been appointed his conservator.             Barclay brought
an    action   seeking      to     remove    Bresnahan     as   personal
representative of        Alice's   estate, and    to     set aside the
conveyances made by him to the Dullenty heirs.              She filed a
motion for summary judgment on November 21, 1983, claiming
that neither Alice's will nor the deeds filed of record
indicate on their face that Alice intended Albert to have
only a life estate in her property, with the six Dullenty
heirs taking fee ownership after Albert's death.
      The District Court denied Barclay's motion for summary
judgment, for the reasons that there were material factual
issues in dispute and questions of par01 evidence that could
not be determined by summary judgment.
      At that time, Judge Wilson, who was sitting on the
District Court, retired.         Judge Holmstrom succeeded him.        He
affirmed Judge Wilson ' s ruling as to the summary judgment,
but raised the question as to whether the District Court,
sitting in probate, had jurisdiction to decide the question
of the pre-death transfer of certain properties in her estate
to the Dullenty heirs.
       Barclay noted in a Reply Brief filed August 1, 1.984,
that while she was not seeking to dismiss her own petition,
she had researched the matter and agreed with the court's
order that the District Court, while sitting in probate,
lacked the requisite jurisdiction to determine title t.o real

property.
       Bresnahan, on the other hand, took the posi.tion that
jud-icialeconomy would be served by continuing the proceeding
in the probate court.        The District Court disagreed, and this
appeal ensued.
       We   have    consistently    answered   the    question. in    the
negative, whether the District Court, sitting in probate, has
jurisdiction to decide title to real property.           Matter of the
Estate of     Swandal    (1978), 179 Mont.      429, 587 P.2d        368;
Christian v. A. A. Oil Corporation (1973), 161 Mont. 420, 506
P.2d   1369; McReynolds v. McReynolds (1966), 147 Mont. 476,
41.4 P.2d 531; In re Jennings' Estate (1925), 74 Mont. 449,
241 P. 648; In re Dolenty's Estate (1916), 53 Mont. 33, 161
P. 524; State ex rel. Barker v. District Court (1902), 26
Mont. 369, 68 I?.     856.
       Bresnahan contends the "archaic distinctions" between
probate     jurisdiction     and   other   forms of    jurisdiction    no
longer exist under the 1972 Montana Constitution or under the
Uniform Probate Code as adopted in Montana.            Be cites various
constitutional and statutory provisions which list probate
matters together with civil cases, and with all cases at law
and in equity.
       He cites extensively from the old and long-standing case
of Chadwick v.       Chadwick      (18871, 6 Mont.    566, 13 P.     385,
arguing that the now (then) antiquated concept of a separate
and distinct probate jurisdiction was rejected, because the
probate court was a court of equity, having chancery powers.
But Chadwick does not aid Bresnahan, first, because the
issues   there        involved     advancements     made     to   certain
beneficiaries under the will, and. second, the Court ruled the
question of advancements was outside the scope of probate
iurisdiction.     In the present case, the Dullenty heirs were
alternate beneficiaries; therefore the deeds of property to
them were not advancements.         Further, at the time Alice died,
the properties were not in her estate to devise to Albert.
     Bresnahan argues that the probate court has jurisdiction
to determine whether a certain asset should be included in
the inventory of an estate and cites our opinion in Swandal,
supra, to support that argument:
     "It is true, as appellants contend, that the
     District Court is without jurisdiction to try
     questions of title among the estate, the heirs and
     third. parties.  In re Jennings Estate (1925), 74
     Mont. 449, 466, 241    648, In re Dolenty's Estate
     (1916), 53 Mont. 33, 43, 1 6 1 ~ 524.
                                       7     ' [B]ut the
     court does have the power to determine the fact
     whether or not property in dispute belongs to an
     estate as an asset thereof or for the purpose of
     inclusion in the inventory.'"   179 Mont. at 436,
     587 P.2d at 372.
The policy considerations, however, preclude a determination
of title.   We are aware that a majority of states follow the
rule that a court sitting in probate has jurisdiction to
determine title to property.         90 A.L.R.    134 (1934). And too,
in at least one instance, it was held that in determining the
i-nventory of an esta.te, the probate court had jurisdiction
incidentally     to    determine    title   to    property    apparently
belonging to the estate; but such determination is merely for
the purpose of facilitating the orderly progress of business
in that court, and does not determine the ultimate rights of
the parties.     Security-First National Bank of Los Angeles v.
     In Montana, title to real property, whether determined
incidentally   or   intentional-ly, must   he   resolved   in proper
proceedings instituted for that purpose.
     The order of the District Cour




We Concur:




         Justices
Mr. Justice John C.Sheehy, specia1l.y concurring:


     I   concur   in   the above opinion because of               the long
history of similar decisions in this Court, although I am not
sure that the Uniform Probate Code may have provided for this
kind of dilemma in     §   72-3-615, MCA.          At any rate, it would be
my suggestion to the District Court and the parties that a
special administrator be appointed. under S                 72-3-701, MCA,
charged with the duty to bring an action on behalf of the
estate against the transferees to determine the issues of
title raised by the conservator.                  The special administrator
should be a neutral person to the contending parties here.
The determination of the court in such special action would
determine for the probate court whether the real property
should be included as an asset of Alice's estate.

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