                                            NO.    91-636

                       IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                  1992



IN RE THE ESTATE OF
ROBERT JOHN ALLEN, Decedent
PATRICK JAMES CAMPBELL,
                   Plaintiff and Appellant,


WENDY RAE ALLEN, Personal
Representative of the Estate
of Robert John Allen, Deceased,
                   Defendant and Respondent.



APPEAL FROM:                     District Court of the Third Judicial District,
                                 In and for the County of Powell,
                                 The Honorable Byron L. Robb, Judge presiding.


COUNSEL OF RECORD:
                       For Appellant:
                                 Patrick James Campbell, Pro Se,
                                 Deer Lodge, Montana
                       For Respondent:
                                 Douglas G. Skjelset, Skjelset Law Offices,
                                 Missoula, Montana
                                      !




                                                  Submitted on Briefs:   June 11, 1992
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~ustice ~illiam E.   Hunt, Sr., delivered the opinion of the
Court.
     Appellant Patrick James Campbell brought a claim against the
estate of Robert John Allen.   The personal representative of the
estate disallowed the claim. Appellant then brought a petition in
the District Court of the Third Judicial District, Powell County,
seeking allowance of the claim.    The District Court granted the
motion of the personal representative to disallow the claim on the
basis that the claim was not presented to the estate within the
statutorily prescribedtime period for bringing claims. We affirm.
     The only issue before this Court is whether the District Court
erred in determining that appellant's claim against the estate is
barred for failure to comply with the statutorily prescribed time
period for filing claims.
     Robert John Allen died on April 25, 1990.      Wendy Rae Allen,
the widow of the decedent, was appointed personal representative of
the estate on May 8, 1990. Following her appointment, the personal
representative ran a notice to creditors in a Powell County
newspaper for three weeks, beginning on May 17, 1990.     The notice
stated that creditors of the estate had four months from the time
of the notice in which to bring their claims against the estate.
The four month period to bring claims ended on September 16, 1990.
     Appellant filed a claim against the estate of Robert John
Allen on January 16, 1991. Pursuant to   §   72-3-514, MCA, appellant
had previously requested that bond be required of the personal
representative.   Appellant brought the claim in connection with
injuries appellant allegedly sustained while a prisoner at the
Montana State Prison in Deer Lodge.          Appellant alleged these
injuries occurred on April 20, 1987, as a result of the negligent
supervision of the decedent who at the time was a guard at the
prison. The personal representative disallowed the claim by filing
a notice of disallowance on January 23, 1991.       On March 13, 1991,
appellant submitted, pursuant to   §   72-3-805, MCA, a petition in the
District Court seeking allowance of the claim against the estate of
Robert John Allen and requesting a jury trial. On April 18, 1991,
the personal representative filed a motion to dismiss any petition
appellant might file seeking allowance of the claim. The District
Court returned the petition to appellant on the basis that the
documents simply duplicated the earlier statement of claims by
appellant.   By order of May 7, 1991, this Court stated that
regardless of the timeliness of appellant's initial claim against
the estate, the District Court must accept and file appellant's
petition for allowance pursuant to 5 72-3-805, MCA.            Whether
appellant's initial claim was timely or meritorious were issues to
be decided by the District Court after receipt of appellant's
petition for allowance, and were not the basis upon which the
petition should be accepted or rejected.
     On October 31, 1991, the District Court granted the prior
motion of the personal representative that appellant's claim be
disallowed, concluding that the claim was untimely pursuant to
5 72-3-801, MCA.   In light of the determination that appellant was
not a creditor of the estate, the District Court concluded that
appellant lacked standing to request bond.      This appeal followed.
        The only issue before this Court is whether the District Court
erred in determining that appellant's claim against the estate is
barred for failure to comply with the statutorily prescribed time
period for filing claims.
        The issue before this Court requires a review of a conclusion
of law made by the District Court. Concerning this Court's review
of conclusions of law made by a lower court we have stated that
"[wle are not bound by the lower court's conclusions and remain
free to reach our own."       Schaub v. Vita Rich Dairy (1989), 236
Mont.    389, 391, 770 P.2d     522, 523.     The basis for simply
determining if the lower court's conclusions are correct is that
there is no discretion in determining a question of law. The lower
court either correctly or incorrectly applies the law. Steer, Inc.
v. Department of Revenue (1990), 245 Mont. 470, 803 P.2d 601.
    Appellant's claim against the estate is in tort. The incident
from which appellant contends the claim arose occurred on April 20,
1987. The statute of limitations for bringing an action in tort is
three years.     Section 27-2-204, MCA.   Under usual circumstances,
the statute of limitations for appellant to bring his action in
tort would have run on April 20, 1990. However, 5 27-2-401, MCA,
extends the period of limitations for persons under a disability.
Section 27-2-401, MCA, provides in part that:
         (1) If a person entitled to bring an action
    mentioned in part 2, except 27-2-211(3), is, at the time
    the cause of action accrues, either a minor, seriously
     mentally ill, or imprisoned on a criminal charge or under
     a sentence for a term less than for life, the time of
     such disability is not a part of the time limited for
     commencing the action. However, the time so limited
     cannot be extended more than 5 years by any such
     disability except minority.
     At the time appellant's cause of action accrued on April 20,
1987, appellant was a prisoner at the Montana State Prison.
Appellant has been incarcerated continuously since April 20, 1987.
The District Court was correct in concluding that appellant's
statutory disability extended the time period for bringing the tort
action.   However, 5 27-2-401, MCA, which extends the statute of
limitations for persons under a disability only applies to "a
person entitled to bring to bring an action mentioned in part 2 '
                                                               .'
The legislature has specifically provided for a different statute
of limitations for bringing claims against an estate.      Section
72-3-803, MCA, provides in part that:
          (1) All claims against a decedent's estate which
     arose before the death of the decedent, including claims
     of the state and any subdivision thereof, whether due or
     to become due, absolute or contingent, liquidated or
     unliquidated, founded on contract, tort, or other legal
     basis, if not barred earlier by other statute of
     limitations, are barred against the estate, the personal
     representative, and the heirs and devisees of the
     decedent, unless presented within the earlier of the
     following time limitations:
          (a) within 1 year after the decedent's death: or
          (b) within the time provided by 72-3-801(2) for
     creditors who are given notice and within the time
     provided in 72-3-801(1) for all creditors barred by
     publication.
     Section 72-3-801, MCA, provides for a four month period in
which creditors may file claims after notice is published by the
personal representative. Section 72-3-803, MCA, clearly applies to
all claims against the estate, even if the statute of limitations
has not run against the claim pursuant to the general period of
limitations found in Title 27, Chapter 2, Part 2, MCA.         Appellant
did not present his claim against the estate within four months of
the   publication   of   notice   to   creditors   by    the    personal
representative.
      In finding that the appellant's claim was barred by the
statute   of   limitations, the    District   Court     summarized   the
applicable law stating that:
      The ordinary statute of limitations on [appellant's]
      alleged tort claim is three years (27-2-204, MCA) , and he
      commenced no action during that time, so his claim would
      ordinarily be barred. However, section 27-2-401 extends
      this for up to five years because [appellant] is
      imprisoned. However, section 72-3-801 requires that a
      claim against a deceased person must be filed within four
      months from the date of the first publication of notice
      to creditors, which constitutes a special statute of
      limitations as to decedents, and there is no extension
      provided by law for this even for persons having a
      statutory "disability."
      We hold that the District Court's analysis and application of
the law was correct and that appellant is barred from bringing his
claim against the estate by the applicable statute of limitations
found at 5 72-3-803, MCA.
We concur:




    Justices
Justice Terry N. Trieweiler specially concurring.
     I concur with the result of the majority opinion.     I do not
agree with all that is said therein.
     Specifically, I do not agree that the District Court's
"analysis and application of the law was correct."
     Section 27-2-401, MCA, tolls the statutes of limitation which
apply to the commencement of actions.      Commencement of an action
implies formal filing in a court of law.    As defined in Blacks Law
Dictionary, an action is "[tlhe legal and formal demand of one's
right from another person or party made and insisted on in a court
of ju~tice.~'Blacks Law Dictionary 46 (4th ed. 1968).
     In this case, the petitioner failed to          file a timely
creditor's claim with the personal representative of the estate.
Had he done so, I conclude that the time within which he could have
filed his claim in District Court would have been tolled by
5 27-2-401, MCA.   However, the tolling statute does not pertain to
claims against estates.    Therefore, I concur in the majority's
opinion which affirms the judgment of the District Court.
                                  December 15, 1992

                            CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:


Patrick James Campbell
700 Conley Lake Rd.
Deer Lodge, MT 59722


Douglas G. Skjelset
Attorney at Law
P.O. Box 4102
Missoula, MT 59806


                                               ED SMITH
                                               CLERK O F THE SUPREME COURT
                                               STATE OF MONTANA
