Estate of Wrobetz


                                                 Estate of Wrobetz
                                                Decided Jan. 8, 1998
                                        (NOT TO BE CITED AS AUTHORITY)

                                                               No. 97-232

                       IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                              1998 MT 2N

                                        IN THE MATTER OF THE ESTATE
                                      OF LAWRENCE S. WROBETZ, Deceased.

                    APPEAL FROM: The District Court of the Tenth Judicial District,

                                               In and for the County of Fergus,

                                         Honorable Byron Robb, Judge Presiding.

                                                   COUNSEL OF RECORD:

                                                            For Appellant:

                                              John Keith, Great Falls, Montana

                                                           For Respondent:

                                   James J. Screnar and William A. Bartlett, Angel,

                                 Screnar, Coil, Bartlett and Fay, Bozeman, Montana

                                                        Great Falls, Montana

                                        Submitted on Briefs: December 11, 1997

                                                    Decided: January 8, 1998

                        Chief Justice J. A. Turnage delivered the Opinion of the Court.




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¶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 the Court.

¶2 Larry L. Wrobetz appeals from the judgment of the Tenth
Judicial District Court, Fergus County, accepting a proposed
distribution and final accounting of the Lawrence S. Wrobetz
Estate. We affirm.

¶3 Larry raises the following issues on appeal:

¶4 1. Did the District Court err in accepting the final
accounting of the Estate?

¶5 2. Did the District Court err in accepting Lawrence
Wrobetz's 1972 will as the basis for probate?

                 BACKGROUND
¶6 Lawrence Wrobetz died in 1992 in Lewistown, Montana.
Lawrence's children, Clifford Wrobetz, Larry Wrobetz, Donald
Wrobetz, and Barbara Wrobetz Tornow, met to discuss his will. At
the meeting, Larry stated that Lawrence's property was to be
distributed according to the terms of a 1992 will.

¶7 Clifford petitioned for appointment of personal
representative, determination of heirs, and determination of
whether Lawrence's 1972 will was valid. Following a jury trial,
the court determined that Lawrence was incompetent when he signed
the 1992 will, that Larry unduly influenced Lawrence into signing
the 1992 will, and that Lawrence's 1972 will was valid.

¶8 Clifford was appointed personal representative of the Estate
under the 1972 will, which was admitted to probate. On August 5,
1996, Clifford petitioned for approval of final account,
determination of heirs, and for settlement and distribution of a
testate estate, for approval of sale, for attorney fees, and

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instruments of distribution. Larry objected to the proposed final
accounting and distribution.

¶9 Following a hearing, the District Court issued findings and
conclusions approving the final accounting with modifications, the
instruments of distribution, and fees. In its modifications, the
court adjusted Larry's distribution and the appraised value of 360
acres of real property being distributed to Clifford, Donald, and
Barbara. Larry appeals from the judgment incorporating the court s
modifications.

                 DISCUSSION
¶10 1. Did the District Court err in accepting the final
accounting of the Estate?

¶11 We review a district court's findings of fact to determine
whether the findings are clearly erroneous. Daines v. Knight
(1995), 269 Mont. 320, 324, 888 P.2d 904, 906. We review a
court's conclusions of law to determine whether they are correct.
Carbon County v. Union Reserve Coal Co., Inc. (1995), 271 Mont.
459, 469, 898 P.2d 680, 686.

¶12 On appeal, Larry argues the District Court erred when it
approved the final accounting because Clifford did not file a full
and accurate inventory of the Estate's property and failed to
obtain the services of a disinterested person in determining the
fair market value of the property as required by Sec. 72-3-607,
MCA.

¶13 The District Court made extensive findings of fact and took
judicial notice of the previous record of the court files
concerning the Estate of Lawrence S. Wrobetz, Wrobetz v. Wrobetz
and LSW Trust, and Estate of Irene M. Wrobetz. The court found
Larry was "simply not a credible or believable witness[.]" The
court explained that Clifford's task of having every item of estate
property viewed and appraised was made next to impossible by
Larry's actions, and the cost of doing so would have been
considerable and would have imposed a risk for anyone going on
Larry's property. Finally, the court noted that Larry "is in no
position to complain, as one who requests relief from a court of

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equity must come into court with clean hands."

¶14 Clifford, Donald, and Barbara prepared a list of the property
they knew their father possessed. Lawrence's major property,
including 360 acres and a house, was appraised. Other property,
such as cattle and farm machinery, was valued based on the price it
would bring in the industry. Clifford valued other miscellaneous
items by making an inventory with Donald and Barbara from memory
and taking the lowest figure that they assigned for each item. In
light of the circumstances, the District Court did not err by
relying on these valuations.

¶15 The District Court fully reviewed the parties' previous legal
proceedings and pleadings and carefully drafted its findings and
conclusions. We conclude the District Court's findings are not
clearly erroneous and its conclusions of law are correct.

¶16 2. Did the District Court err in accepting Lawrence
Wrobetz's 1972 will as the basis for probate?

¶17 Larry challenges the District Court's May 13, 1994, judgment
declaring the validity of his father's 1972 will. On May 24, 1994,
Larry appealed the judgment in this matter. He failed to prosecute
that appeal, and this Court dismissed it by order dated December
20, 1994.

¶18 Rule 12, M.R.App.P., provides: "The dismissal of an appeal is
in effect an affirmance of the judgment or order appealed from,
unless the dismissal is expressly made without prejudice to another
appeal." The order dismissing Larry's appeal contained no express
provision that the appeal was dismissed without prejudice.
Therefore, Larry's second issue is barred under Rule 12, M.R.App.P.

¶19 Finally, Larry asks that the Estate's personal representative
be removed. We decline to address this issue because it has been
raised for the first time on appeal. See Cenex v. Board of Com rs
for Yellowstone (Mont. 1997), 941 P.2d 964, 968.

¶20 Affirmed.



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 Estate of Wrobetz


                           /S/ J. A. TURNAGE
We concur:

/S/   JAMES C. NELSON
/S/   JIM REGNIER
/S/   TERRY N. TRIEWEILER
/S/   WILLIAM E. HUNT, SR.




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