                                   No.     14625
                     IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          1980


IN THE MATTER OF THE ESTATE OF
ISABELLA WALLACE,
                     Deceased.
                                   No. 14794


ROBERT J. SUTTON et al.,
                            Plaintiff and Appellant,


HELEN McALEAR et al.,
                            Defendants and Respondents.


Appeal from:         District Court of the Twelfth Judicial District,
                     Honorable B. W. Thomas, Judge presiding.
Counsel of Record:
   For Appellants:

             Church, Harris, Johnson & Williams, Great Falls, Montana
             Douglas Allen argued, Great Falls, Montana
             Bunn and Brown, Chester, Montana
   For Respondents:
             Jardine, Stephenson, Blewett & Weaver, Great Falls, Montana
             Dale Schwanke argued, Great Falls, Montana
             Alexander and Baucus, Great Falls, Montana
             Edward Alexander argued, Great Falls, Montana
             Weber, Bosch, Kuhr, Dugdale, Warner and Martin,
              Have, Montana
             John Warner argued, Havre, Montana
             William F. Browning appeared, Great Falls, Montana
             Allen L. McAlear, Bozeman, Montana


                                    Submitted:       January 18, 1980
                                         Decided :
Filed:   '   -   ,
Mr. Justice John C. Sheehy delivered the Opinion of the Court.


     Robert J. Sutton, estate administrator, appeals from two
orders of the Liberty County District Court, dismissing certain
claims of his civil suit and denying his objections to a 1942
decree of distribution in the Isabella Wallace estate.

     In stating the facts, it is easier to segregate the pertinent

incidents by date as follows:

     - -15, -
     June   1938-Isabella Wallace executed a Will which was
prepared by J. H. McAlear, her attorney.    In the Will Isabella
Wallace named H. J. McAlear and W. H. Shafer as executors and
testamentary trustees and devised life estates in her real property
to her two sons William John, Jr. and James H. Wallace.    In

addition she devised all personal property in trust for their
benefit during their lives.
     Paragraph VIII of her Will provides:

    "I direct that after the decease of my two sons
    my estate, both real and personal property, go fully
    and absolutely to W. H. Schafer and J. H. McAlear,
    share and share alike."
It is this provision which forms the point of origin for the
current dispute, the respondent claiming the creation of a vested
remainder interest with the enjoyment of such interest delayed
until the death of both of the sons, while the appellant contends

any remainder interest was contingent upon Schafer and McAlear
surviving the Wallace brothers.

    ---
    June 13, 1940-Isabella Wallace died survived by her two sons.

    ---
    July 25, 1940-Isabella Wallace's Will was admitted to probate
and W. H. Schafer was appointed executor of the estate.   McAlear
acted as the attorney for the executor.
     July 14, 1941-Petition filed for final distribution
     ---
of the estate.
     August --
            14, 1941-Final distribution of the estate was ordered
by Judge C. B. Elwell to Shafer and McAlear as testamentary
trustees for the use and benefit of the Wallace brothers.      A
remainder over in the real property was decreed to the

trustees.   The residue of the estate was decreed to go to
the trustees "in the event that the    . . .   trustees should be
predeceased by the two cestuis    . . ."
     February --
              14, 1942-Motion to set aside the decree of distri-
bution of the estate was filed by Louis P. Donovan, attorney for

the moving parties.    The motion was expressly based on the
"inadvertent mistake" that the August 14, 1941 decree failed to

distribute - of the property of the estate, this omission con-
           all
sisting of the remainder of the real property and,
the remainder of personal property after the termination
of the life estates in the event the Wallace Brothers survived
the two trustees.
    March --
          12, 1942-By a written consent on this date the
Wall-acebrothers agreed to join in the motion to set aside the
distribution.    Also on this date the motion was argued before
Judge C. B. Elwell.
     March --
           20, 1942.-Order setting aside the initial decree of
distribution was granted by Judge C. B. Elwell.

     - -9, 1942-Pursuant to a new petition, a second decree of
     July -
distribution of the estate of Isabella Wallace was entered by the
court, distributing the remainder interests of both the real
and personal property to Schafer and McAlear after the termination
of the life estates and trusts.
     September --
               10, 1968-W. H. Schafer died on this date.
Subsequently Mary E. Schafer, his wife was appointed as a
replacement cotrustee.
             25, 1968-J. H. McAlear died on this date.
     October - -                                             Trudy
McAlear Elsberry, his daughtez; was later appointed as a cotrustee
on May 28, 1969.

     ---
     July 1, 1970-Mary E. Schafer died on this date and sub-
sequently Robert J. Sutton was appointed as a replacement ~ ~ t r u s t e e .
     November --
              20, 1971-William John Wallace, one of Isabella
Wallace's sons died on this date.
     September --
               26, 1973-James H. Wallace, the other of Isabella
Wallace's sons, died.     Sutton was later appointed administrator
of his estate.

     February - -
              1, 1974-A petition for the termination of the
trust and life estates established under the Will of Isabella
Wallace was filed by the heirs of J. H. McAlear.
     September --
               12, 1974-Sutton, as the appointed administrator.
of the individual Wallace brothers' estates, filed an objection

to the February 1, 1974 termination petition.      The objection
was based on allegations of fraud, misrepresentation and
undue influence in the execution of Isabella Wallace's Will
by Schafer and McAlear.

     - 18, 1975-Sutton, as administrator of the Wallace
     July - -
Brothers' estates, filed a civil action against the respondents
based on the same allegations against Schafer and McAlear.
     October --
             23, 1975-(Probate cause.)     Judge B. W. Thomas
entered   an order dismissing Sutton's September 12, 1974 objection
for lack of jurisdiction.    The order also granted the February
1, 1974 petition of the McAlear-Schafer heirs.      The Court thereby
declared and divided ownership of the Isabella Wallace remainder
estate among the heirs of Schafer and McAlear.
     December --
              16, 1975-(Probate cause.)     After assorted objections
and motions by both parties, Judge Thomas ordered determination
of the various claims, as well as final distribution of the
Isabella Wallace estate, be reserved until determination of
the issues in the civil action.
     June 13, 1978-(Civil cause.)
     ---                              Judge Thomas entered an order
dismissing claims in Sutton's civil suit, basically holding
against Sutton on the allegations against Schafer and McAlear.

     September - -
               14, 1978-(Probate cause.)    After the action of
the court in the civil action on June 13, 1978, Judge Thomas in
the probate action dissolved the restrictions of his December
16, 1975 order and ordered distribution of the remainder assets
of the Isabella Wallace Estate to the McAlear-Schafer heirs.
     March - -
           8, 1979-(Civil cause.)     Judge Thomas, pursuant to
Rule 54(b), M.R.Civ.P.,   ordered final judgment entered on its
June 12, 1978 order in the civil action.
     Appeals have been timely taken and the two suits have been
consolidated for purposes of review.     It is from these last two
court actions that Sutton appeals setting forth the following
issues for our consideration:

     (1) Did the District Court err in its September 14, 1978
order, in the Isabella Wallace probate, distributing the assets
of the estate to the McAlear-Schafer heirs?
     (2) Did the District Court err in its June 13, 1978 order,
by dismissing claims in Sutton's civil complaint?

     (3)   Should Sutton be allowed to file his amended complaint?
     In the present case the thrust of appellant's argument is
that a fraud was perpetrated upon the Wallace brothers by the
two testamentary trustees, McAlear and Schafer, in obtaining their
signature to a consent which thereby resulted in setting aside the
first distribution and the issuance of the second decree.     In
so doing the appellant alleges the court was deceived into making
a wrongful distribution of the assets of the estate of Isabella

Wallace.
                                -5-
     In cases of undue influence as in actual fraud, the
burden is upon the party alleging the fraud to set forth facts
proving a fraud did in fact occur.    An essential element of
this proof is the existence of an injury to a right of the
plaintiff.
     "Generally speaking, the injury or damage which the
     plaintiff must prove must be something more than
     contingent damage which may or may not occur.
     (Citing authority.) Plaintiff may recover when he shows
     that he has sustained some pecuniary damage or
     injury by reason of having been put in a position
     worse than he could have occupied if there had been
     no fraud, but he cannot recover where he does not
     show that he has sustained such damage or injury."
     Denny v. Brissonneaud (1973), 161 Mont. 468, 472,
     506 P.2d 77, 79.
In the present case the appellant has not satisfied this burden
of proof.    Although the appellant has addressed quite thoroughly
a case for deprivation of a right, he has completely failed to
establish the existence of a right personal to him or the estates
he is representing on which he may seek to recover.   Appellant
must have a right before he may receive a remedy.
     Not only must a right be asserted, but such a right must

be shown to exist by substantial evidence.    This burden is
placed upon the contestant.    In Re Maricich's Estate (19651, 145
Mont. 146, 161, 400 P.2d 873, 881.    In the instant case the
appellant must demonstrate that if the second decree of distri-

bution (i.e. the July 9, 1942 decree) is set aside, that the

Wallace brothers, the individual estates of whom the appellant
is representing, would have a right to the contested remainder

property interests.    Statedmore succinctly, but for the consent
of the Wallace brothers, would the brothers have received the
remainder interest of the real and personal property of the
Isabella Wallace estate?    This Court finds the answer to be in
the negative.
     The language of the Will itself does not leave anything to
the Wallace Brothers (and therefore to any heirs taking through
                                -6-
their individual estates) except for a life estate in the
real property under paragraph IV, and as beneficiaries of a
trust of the personal property under paragraph VI.    Whatever is
left after the life estates or the end of the trust, be it a
remainder or a reversionary interest, will pass to McAlear and
Schafer under paragraph VIII.   This paragraph is a residuary
clause in the case of a reversion and a remainder-over after the

terminations of the life estates of the two brothers.
          Appellant's argument that such interest as may exist
after termination of the life estates would pass intestate to
the respective estates of the Wallace brothers also fails.     Under
then existing Montana law Wills were to be construed so as
to avoid total or impartial intestacy.   Constructions leading
to intestacy were not favored by the courts.    Section 91-
210, R.C.M.   1947 (repealed Mont. Laws 1974); Blacker v.
Thatcher (9th Cir. 1944), 145 F.2d 255, 259; In Re ~priggs'
Estate (1924), 70 Mont. 272, 275, 225 P. 617, 618.
     In addition such an interpretation would conflict with the
main purpose of making a Will which is to distribute - of the
                                                     all
estate property.   At the time of the probate of the Will, the
following statute provided:
     "Certain words not necessary - -pass a fee. The
                                  to - -
     term 'heirs', or other words of inheritance, are
     not requisite to devise a fee, and a devise of
     real property passes all the estate of the testator,
     unless otherwise limited." Section 91-213, R.C.M.
     1947 (now section 72-11-311, MCA).
     This statute was originally promulgated to abolish the
common law inference that no estate of inheritance was meant
to be passed in the absence of direct and express words creating
such an estate.    That same statute harmonizes with another
provision of the Uniform Probate Code, section 72-2-502, MCA,
which states that a Will should be "construed to pass all property
which the testator owns at his death, including property acquired
after the execution of the will."
        This Court also recognizes that the doctrine of laches
constitutes a further impediment to the claims of the appellant.
        ". . . Laches is not, as is a statutory period
        of limitations, a mere matter of elapsed time,
        but is principally a question of the inequity of
        permitting the claim to be enforced . .  ."

        "Although lapse of time alone will not support
        a defense of laches, it has been held sufficient
        where it would be clearly inequitable to permit
        the enforcement of bare legal rights or where the
        other circumstances are such that the delay in the
        assertion of rights has been wholly unreasonable
          .
        . ." 27 Am.Jur.2d Equity, S163.
Furthermore, there is no absolute rule as to what constitutes
laches in Montana.      Each case must be determined according to
its own particular circumstances.     Montgomery v. First Nat.
Bank (1943), 114 Mont. 395, 408, 136 P.2d 760, 766.

        Applying the doctrine to the instant case, there is no
question that the passage of 32 years since the Probate Court
issued its second decree is of such a duration as to make a
present attack on that decree inequitable.     The situation is

further compounded by the fact that every participant in the
contested transaction is now deceased and has been for quite some
time.
        However, as.we have already noted, the doctrine of laches is
not just a matter of elapsed time.
        "Laches . . .  is a concept of equity; it means
        negligence in the assertion of a right; it is
        the practical application of the maxim, 'Equity
        aids only the vigilant;' and it exists when there
        has been unexplained delay of such duration or
        character as to render the enforcement of the
        asserted right inequitable." Riley v. Blacker
         (1915), 51 Mont. 364, 370, 152 P. 758, 759;
        Montgomery, supra, 114 Mont. at 408-09; Johnson
        v. Johnson (1977), 172 Mont. 150, 155, 561 P.2d
        917, 920.
In the present case, more than four years have passed from

the time Sutton was appointed as cotrustee of the estate of
Isabella Wallace until an allegation of fraud through an objection

was filed by him in September     1974.   Sutton had ample opportunity
to raise his objection within a reasonable time after assuming
his trustee duties on July 1, 1970.

     Furthermore, no reasonable excuse for such a delay has
been asserted by Sutton so as to ameliorate his lack of vigilance
and delay in filing his claim.    This unexplained acquiescence
by Sutton concerning his trustee duties indicates that he

accepted the Will and distribution by the court as amended by
judicial decree on July 9, 1942.     This factor coupled with the
elapsed time of thirty-eight years makes it inequitable for the
appellant to attempt now further legal attack on the distribution
based on the July 1942 decree.
     The remaining issue relates to whether appellant can file
his amended complaint in the civil action.    The District Court
refused leave to file part of the amended complaint, saying:
               .
         ". . Plaintiff cannot now amend his complaint
    as to all defendants without leave of Court.
    Plaintiff concedes that Claim I of his proposed
    amended complaint is a repetition of a claim or
    claims which were dismissed by the Order of
    June 12, 1978, and that, insofar as that claim is
    concerned, by his motion to amend he is asking the
    Court to reconsider that Order. Since the issues
    covered by Claim I of the proposed amended complaint
    have previously been fully considered by the Court
    and dismissed on their merits, the Court finds that
    there has been no showing that justice requires the
    allowance of the amended complaint insofar as those
    issues are concerned." Order On Motion For Leave
    To File Amended Complaint, document 58, civil suit.
    The order of the District Court applies only to the issues
it settled, and on which we now agree.    In the amended complaint,

Sutton abandoned the will contest.    His claim to intestate
division of the remainder property of the Isabella Wallace estate,
as we have shown, depends on his ability to prove a right to
that property under her Will.    Since the claim has no foundation
in law, the District Court was correct in refusing to grant
leave to file an amended complaint which tendered the same claim

after the Court's decision against it.    It makes no difference
that the amended complaint was tendered before some of the
McAlear-Schafer claimants had filed a responsive pleading to
the first Sutton complaint.   Rule 15(a), M.R.Civ.P.,   does
not preclude the District Court from striking issues already
decided. Nothing in the District Court's order precludes
Sutton from filing his amended complaint as to other issues
undecided, or from amending again so as to include only
issues undecided.   Since we agree with the District Court on
its resolution of the law applicable to the remainder and
residue property under the Isabella Wallace Will, we find no
error in the order of the District Court denying leave to
file an amended complaint which would raise those issues
again.
     The decisions of the District Court in the civil and
probate proceedings are affirmed.   The causes are remanded

for further proceedings consonant with this opinion.




We Concur:



         Chief Justice
