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No. 8 6 - 5 2
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986

IN THE MATTER OF TFE ESTATE OF JIMMIF L. ROGERS, Deceased.

APPEAL FROM:

District Court of the Fifth. Judicial District, In and for the County of Jefferson, The Honorable Frank Davis, Judge presiding.

For Appellant: Jackson For Respondent: Jardine, McCarthy & Grauman; John H. Ja-rdine, Whitehall, Montana
&

Rice; James A. Rice, Jr., Helena, Montana

Submitted on Briefs: May 30, 1 9 8 6 Decided: August 26, 1986

Mr. Justice John Conway Harrison delivered the Opinion of the Court. This is an appeal by the decedent's children from an order and judgment of the District Court of the Fifth The court
We

Judicial District, Jefferson County, Montana.

awarded certain estate property to the decedent's wife. affirm.

The facts of the case are basically undisputed by the parties. In October, 1982, Jimmie L. Rogers (decedent) had

executed and delivered to his present wife, Patricia A. Rogers (wife) a legal and valid power of attorney which

contained a so-called "durable power of attorney clause." This clause permitted the wife to act as Rogers' attorney in fact if he became incompetent. This power of attorney was

used by the wife on one or more occasions with regard to the handling of Rogers' business affairs. Rogers and his wife jointly borrowed money necessary to construct a new home in Jefferson County. Construction began

in March, 1983, and was completed in June, 1983, at a total cost of approximately $60,000. During the course of the construction of the home, Rogers discovered he was afflicted with a terminal illness. After he became aware of his illness, he began to make arrangements to have his interests in certain California notes and deeds of trust assigned to his wife t.o insure that she would be able to keep their new home. For a variety of reasons (none of which were the fault of Rogers, his wife, or their local counsel), the assignments of the notes and deeds of trust were not prepared until the latter part of June, 1983, after Rogers had been confined to

a hospital just prior to his death.

Rogers was mentally

competent when he was presented with the assignments in the hospital, but, because of his weakened condition, could not physically affix his signature to the documents. The record

shows that several witnesses in the hospital were aware of Rogers' desire to make the assignments to his wife. Faced with Rogers' inability to physically execute the assignments, executed the the wife, two to days before Rogers' death, to the

assignments

herself,

pursuant

above-described power of attorney.

The assignments assigned

all of Rogers' right, title and interest in the notes and deeds of trust to the wife. Rogers died in Silver Bow County, Montana, on June 22,
1983.

At the time of his death he was a bona fide resident

of Jefferson County, Montana, where he had resided since July, 1 9 7 9 . The decedent left a last will and testament dated. February 16, 1 9 8 3 . This will was admitted to probate in the

Jefferson County District Court and provided, in pertinent part, as follows: I give, devise and bequeath in equal undivided shares to my three children per stirpes, Jimmie L. Rogers, Jr., Pamela K. Rice and Deborah A. Riccabuono, all property located in the state of California at the time of my death, real, personal or mixed, of which I may die possessed

...

...

The will further provided, in part, as follows: I give, devise and bequeath all of the rest, residue and remainder of my property, real, personal or mixed, to my wife, Patricia A. Rogers

...

...

The children who were mentioned in the will were born of a prior marriage of the decedent. They have no blood

relationship to the decedent's present wife.

After the decedent's will was admitted to probate in Jefferson County, the children began a separate and

non-ancillary probate proceeding in the state of California. They wished to establish that certain contested items of property from the decedent's estate had its situs in the state of California and therefore would pass to them under the terms of the decedent's will. The items of contested

property consisted of four notes which were secured by deeds of trust on California real property. The appraised

aggregate value of these notes was $82,590.82. Prior to any further action in the Montana probate proceeding, the California Probate Court ruled that the notes and deeds of trust were personal in character and therefore were under the exclusive jurisdiction of the Montana courts. Consequently, the California court refused to decide any issues relating to the distribution of the contested

property. In June, 1985, the District Court held a hearing to determine which property. parties were entitled to Rogersf estate

In September, 1985, the court issued its order and

judgment that the assignment of the California notes and deeds of trust by the wife, pursuant to her power of

attorney, was a valid transfer of all of Rogers' right, tit1.e and interest in such property. The District Court determined

that the assignments were made to carry out Rogers' purpose and intent and did not constitute a violation of trust on the part of the wife. Further, the court reasoned that even if

the assignments were not valid (which they were), the notes and deeds of trust would pass to the wife under the terms of Rogers' will. They were personal in nature with a situs in

the state of Montana, the place of Rogers' residence at the

time of his death.

The District Court stated that California

law and Montana law agree that contracts, such as the ones in the instant case, are personal property with a situs in the state where the decedent was domiciled at the time of his death. It is from this order and judgment of the District Court that the children, through Jimmie Rogers, Jr., appeal. They present the following issues for review by this Court:
(1) Whether the District Court committed reversible

error when it refused to allow the children to complete discovery;
(2) whether the District Court erred in upholding the

assignment of the California notes and deeds of trust made by the wife to herself, pursuant to a power of attorney given to her by the decedent;
(3) whether the District Court erred in ruling that

the California notes and deeds of trust were Montana property and, as decedent. The children argue that following the June, 1985, such, pass to the wife under the will of the

hearing to determine which parties were entitled to estate property, their counsel discovered two witnesses not previously deposed. These witnesses had information relating to After learning of

the matters raised during the hearing.

this evidence, their counsel moved for additional time to cornplete discovery of these parties so that their testimony coilld be included in the court record and available for the coilrt's decision. The District Court Judge then contacted

the children's counsel and asked him to submit a summary of the proposed testimony. Counsel complied with this request.

Af-ter reviewing the summary, the District Court Judge issued

an order denying counsel's request to complete discovery of these witnesses, ruling that the proposed testimony appeared to be inadmissible (i.e. hearsay). The children now argue

that this decision by the District Court was prejudicial to th'em and disagree. The children readily admit that all trial courts in Mo:ntana have the inherent discretionary power to control discovery. Court State ex rel. Guarantee Insurance Co. v. District 1981), 634 P.2d
648,

was

an

abuse

of

the

court's

discretion.

We

(Mont.

38

St.Rep.

1682.

Therefore, based on this standard, we do not need to address the children's contention. It is necessary to note, however, there was no

objection raised on this aspect of the case until the present appeal. We agree with the wife that the record contains no

reference, directly or indirectly, regarding the children's claim of error that their discovery rights were prejudiced by the District Court's denial of their motion to extend

discovery.

The proposed findings of fact, conclusions of law

and memorandum submitted by the children did not mention the District Court's denial of their motion. Further, no

objection was made, nor was the District Court asked to amend its findings and conclusions. Now, for the first time, this Under these

issue is asserted by the children on appeal.

circumstances, this Court has made it clear that we will consider for review only those issues raised in the pleadings or otherwise before the District Court. Rustics of Lindbergh

Lalce, Inc. v. Lease (Mont. 1984), 690 P.2d 440, 41 St.Rep. 2092; and Huggans v. Weer (Mont. 1980), 615 P.2d 922. In the

instant case, the children failed to follow this general rule

and consequently their first issue must be disregarded by this Court. With regard to the second issue, the children claim that the assignment of the contracts by the wife, made to herself pursuant to a power of attorney, are invalid under Montana law. First, the children point out that the wife, as

the attorney in fact for Rogers, was acting as his agent. A power of attorney is an instrument in writing by which one person, as principal, appoints another as his agent and confers upon him the authority to perform certain specified acts or kinds of acts on behalf of the principal .

.

.

3 Am.Jur.2df S 23, Agency.

Next, the children point out that SS 28-10-401, et seq., MCA, outline the authority of an agent in Montana. Specifically, the children direct this Court's attention to
S 28-10-407, which provides in pertinent part as follows:

Statutory authority.

exceptions

to

general

An authority expressed in general terms, however broad, does not authorize an agent to :

(3) do any act which a trustee is forbidden to do by Title 72, Chapter 20, Part 2.

Thus, the children argue, the restrictions upon the authority of an agent actually are contained in the statutes which outline the obligations of a trustee. Under this analysis, the children assert

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