No. 84-473
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
IN THE MATTER OF THE ESTATE OF
GERALD W. BARBER, Deceased.
APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Fergus,
The Honorable Peter L. Rapkoch, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
McGimpsey & Bacheller, Billings, Montana
For Respondent:
Donald E. Ronish, Lewistown, Montana
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Submitted on Briefs: Feb. 14, 1985
Decided: May 2, 1985
Filed:
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Clerk
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Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
This is an appeal from an order of the District Court
of the Tenth Judicial District of the State of Montana,
Fergus County, denying partial distribution of the Barber
estate. We affirm.
Gerald W. Barber died testate on December 4, 1982,
leaving his entire estate to his widow, Margaret Barber, and
three children from a previous marriage. The widow serves as
the estate's personal representative. On July 27, 1984, the
children, appellants, petitioned the District Court for a
partial distribution of the estate. They requested that a
specific bequest of the decedent's one-tenth interest in the
"Twin Butte property," together with the income from that
property, be distributed to them. The widow resisted the
request because the distribution would leave insufficient
assets from which the children's share of debts, expenses and
taxes could be pa.id or provided for. At the time of the
request, the distribution may have left the estate with a
substantial shortage depending on whether additional services
were rendered and on the results of an audit of the estate
tax return.
The trial judge below heard oral argument on the
petition on August 22, 1984. He also received memoranda from
both parties. His order denyinq the petition was issued
without specific findings or conclusions on September 24,
1984.
The only issue presented on appeal is whether the
District Court erred in denying the petition for partial
distribution of decedent's estate. Appellants argue that
because the distribution of an estate is to be accomplished
"expeditiously and efficiently" (section 72-3-610, MCA) and
there was no finding that the estate would be impaired by the
partial distribution, the District Court erred in denying the
children's petition.
The District Court's order will not be overturned on
appeal absent clear error, Dalbey v. Equitable L . Assur. Soc.
of United States (1937), 105 Mont. 587, 74 P.2d 432 or an
abuse of discretion, Kamp v. First National Bank and Trust
Co. (1973), 161 Mont. 103, 504 P.2d 987. While the better
practice may be to always enter specific findings and
conclusions, there is no automatic error in failing to do so.
In the case at bar, neither testimony nor affidavits were
offered to establish relevant facts, nor does the file
reflect any factual. dispute. Further, appellants cited no
authority requiring or even permitting a partial distribution
prior to the closing of an estate under these circumstances.
A district court does not commit error by denying a request
for an order unsupported by either legal a.uthority or the
factual circumstances surrounding the request.
Although occurrences after the date of the order,
September 24, 1984, do not affect this appeal, appellants
rely on some subsequent events in their brief. The estate
received additional income of $82,739 from a contract for
deed on December 6, 1984 and other smaller amounts after that
time. According to the attorney for the estate, the cash on
hand now slightly exceeds $100,000 and the liabilities are
about $93,000. Appellants argue that the personal
representative could now distribute the requested property
without harm. Appellants again fail to note the personal
representative's responsibility to manage, protect and
preserve the estate, section 72-3-606 (2), MCA. The estate's
additional federal tax liability is not yet settled and the
charges against devises under the abatement provisions ha.ve
not yet been determined. Even considering the additional
information, there would be no error or abuse of discretion
in a district court's denial of a petition for partial
distribution. We therefore affirm the District Court's
order.
We concur: