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                                                              No. 01-336

                   IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                           2001 MT 301N


                                                     IN THE MATTER OF

                                                        THE ESTATE OF

                                                     LEONARD D. HASH,

                                                               Deceased.

                 APPEAL FROM: District Court of the Thirteenth Judicial District,

                                        In and for the County of Yellowstone,

                                The Honorable G. Todd Baugh, Judge presiding.

                                                  COUNSEL OF RECORD:

                                                           For Appellant:

                                          Roy W. Johnson, Billings, Montana

                                                          For Respondent:

                   Carl A. Hatch, Small, Hatch, Doubek & Pyfer, Helena, Montana

                                       Submitted on Briefs: December 6, 2001
                                           Decided: December 28, 2001

                                                                  Filed:

                             __________________________________________

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                                                                    Clerk




Justice James C. Nelson 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 Carol Hash, Leonard Hash's wife and the personal representative of his estate, appeals
from a judgment of the District Court for the Thirteenth Judicial District, Yellowstone
County, approving a creditor's claim in the estate proceeding.

¶3 Carol raises two issues on appeal which we have restated for clarity as follows:

¶4 1. Whether a probate completed in the Superior Court of the State of Washington, King
County, is entitled to full faith and credit in Montana.

¶5 2. Whether the testimony of grandchildren as to an oral agreement between one of their
parents and a grandparent regarding a disclaimed interest in an estate in exchange for a
lifetime care agreement, is admissible.

                                         Factual and Procedural Background

¶6 On September 1, 1996, Leonard's sister, Jean Helen Zimmerle, died intestate. Jean
resided in King County, Washington prior to her death. Jean had no surviving spouse or
children, therefore, under Washington probate law, her mother, Goldie Hash, was her sole
beneficiary. Goldie also had priority to be appointed as the personal representative of
Jean's estate.

¶7 Goldie was 83 years old at the time of Jean's death, so she declined to serve as personal
representative. Instead, Goldie consented to have her son, Leonard, appointed as personal
representative in her place. Consequently, on September 12, 1996, Leonard petitioned the

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Superior Court of the State of Washington, King County, for letters of administration. He
set forth in his petition that the distributive share of Jean's estate in favor of Goldie was
100%.

¶8 On October 1, 1996, Goldie, who resided alone in Livingston, had a serious fall in
which she shattered her shoulder. Leonard moved Goldie into his home in Billings so that
he could care for her. In addition, arrangements were made to remove Goldie's belongings
from her home in Livingston so that the home could be sold. On October 15, 1996, Goldie
disclaimed, in favor of Leonard, her right to receive her inheritance from Jean's estate.

¶9 Leonard passed away suddenly on May 2, 1997. Carol petitioned to be appointed the
successor personal representative of Jean's estate and she was so appointed on June 5,
1997. The assets of Jean's estate were subsequently distributed to Leonard's estate and
thereby to Carol. On July 28, 1997, probate was closed. Jean's estate totaled more than
$150,000, of which Carol claimed she received only $104,000.

¶10 After Leonard's death, Carol and Goldie had a disagreement over finances. On July 3,
1997, Carol had Leonard's three children from his previous marriage, Connie Giddings,
Tina Hash, and Dan Hash, remove Goldie from Leonard's and Carol's home. Goldie lived
with Tina until December 1997, when Goldie moved into an independent retirement
facility in Helena.

¶11 On November 7, 1997, Goldie filed a claim against Leonard's estate. She alleged that
she had disclaimed her rights to any share in Jean's estate in favor of Leonard upon the
understanding that Leonard would provide for her for the remainder of her life. As
personal representative of Leonard's estate, Carol rejected Goldie's claim. Thereafter,
Goldie petitioned the District Court to allow her claim.

¶12 Goldie passed away in September 1999 and Connie, Tina and Dan acted as personal
representatives for her estate. The expenses for Goldie's care from the time she was
removed from Leonard's and Carol's home until the time of her death amounted to
$61,979. This included her rent at the retirement home, her medical care and drugs, and
the cost of her funeral.

¶13 On September 13, 2000, the District Court held a hearing on Goldie's claim. At that
hearing Connie and Tina both testified that it was their understanding that Goldie was to
live with and be provided for by their father until she passed away.


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¶14 The District Court entered its Findings of Fact and Conclusions of Law on February
23, 2001, allowing Goldie's claim. On March 6, 2001, the court entered judgment to that
effect. It is from that judgment that Carol appeals.

                                                                  Issue 1.

¶15 Whether a probate completed in the Superior Court of the State of Washington, King
County, is entitled to full faith and credit in Montana.

¶16 Carol argues on appeal that the decision of the probate court of the State of
Washington to transfer the assets from Jean's estate to Leonard, is entitled to full faith and
credit in Montana. Although this is a correct statement of the law, it is not the question at
issue here.

¶17 The Washington probate proceeding did not address the issue raised by Goldie in the
Montana probate proceeding that Goldie disclaimed her interest in Jean's estate in
exchange for Leonard's promise to care for Goldie and make a home for her with him for
the rest of her life. "That only is deemed to have been adjudged in a former judgment
which appears upon its face to have been so adjudged or which was actually and
necessarily included therein or necessary thereto." Section 26-3-102, MCA.

¶18 The adjudication by the Washington court that Leonard was entitled to receive the
assets of Jean's estate was not an adjudication that Goldie cannot recover from Leonard's
estate for the promise that Leonard made to take care of and provide a home for Goldie.
Hence, since the Washington court did not adjudicate this issue, there is no full faith and
credit preclusion.

                                                                  Issue 2.

¶19 Whether the testimony of grandchildren as to an oral agreement between one of their
parents and a grandparent regarding a disclaimed interest in an estate in exchange for a
lifetime care agreement, is admissible.

¶20 The District Court found that, but for the agreement between Leonard and Goldie that
Leonard would care for and provide for Goldie for the rest of her life, Goldie's disclaimer
of Jean's estate was contrary to Goldie's pecuniary interests. Thus, the court concluded that
the testimony of Goldie's granddaughters as to the agreement between Goldie and their

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father and Goldie's verified claim explaining the reason for her disclaimer of any interest
in Jean's estate were admissible.

¶21 We review a district court's findings of fact to determine whether they are clearly
erroneous. Greater Yellowstone Coalition, Inc. v. Bd. of County Com'rs of Gallatin
County, 2001 MT 99, ¶ 20, 305 Mont. 232, ¶ 20, 25 P.3d 168, ¶ 20 (citing State v.
Wooster, 1999 MT 22, ¶ 2, 293 Mont. 195, ¶ 2, 974 P.2d 640, ¶ 2). We review a district
court's conclusions of law to determine whether the court's interpretation of the law is
correct. Greater Yellowstone, ¶ 20 (citing Cenex Pipeline LLC v. Fly Creek Angus, Inc.,
1998 MT 334, ¶ 22, 292 Mont. 300, ¶ 22, 971 P.2d 781, ¶ 22).

¶22 In her claim against Leonard's estate, Goldie, upon her oath, stated:

        Goldie M. Hash claims that all the assets received by Leonard D. Hash and the
        Estate of Leonard D. Hash from the Estate of Jean Helen Zimmerle must be used to
        provide a home for her and to care for her for the remainder of her life to fulfill the
        promises made by Leonard D. Hash in consideration for her waiver and declination
        to serve as personal representative and her disclaimer to receive any assets from the
        Estate of Jean Helen Zimmerle.

In addition, Tina testified at the hearing in this matter that "[m]y dad told me that she had
given him control of my aunt's estate . . . . My grandmother depended on him and she
knew that he would take care of things and also make sure that she was looked after. That
was my dad's big concern in life, that his mother was taken care of."

¶23 Both Leonard and Goldie are unavailable as witnesses because they are both deceased.
See Rule 804(a)(4), M.R.Evid. However, the Montana Rules of Evidence provide several
exceptions to the hearsay rule when the declarant is unavailable as a witness. In particular
for our purposes here, the following rule applies:

        Statement against interest. A statement which was at the time of its making so far
        contrary to the declarant's pecuniary or proprietary interest . . . that a reasonable
        person in the declarant's position would not have made the statement unless the
        declarant believed it to be true.

Rule 804(b)(3), M.R.Evid.



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¶24 We conclude that Goldie's disclaimer of Jean's estate was contrary to Goldie's
pecuniary interests and that she would not have disclaimed her interest in Jean's estate
unless she believed that Leonard intended to care for and provide for her for the rest of her
life.

¶25 Accordingly, we hold that the District Court did not err in admitting the testimony of
Goldie's granddaughters or Goldie's statement made under oath in her claim against
Leonard's estate.

¶26 Affirmed.

                                                    /S/ JAMES C. NELSON

                                                              We Concur:

                                                    /S/ PATRICIA COTTER

                                                /S/ TERRY N. TRIEWEILER

                                               /S/ W. WILLIAM LEAPHART




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