No. 85-130
I N THE SUPREME COURT OF THE STATE OF MONTANA
1985
IN THE MATTER OF THE ESTATE
OF GARLAND S. COUNTS, D e c e a s e d .
APPEAL FROPI: D i s t r i c t C o u r t of t h e S i x t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of P a r k ,
T h e H o n o r a b l e B y r o n R o b b , Judge p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
R o b e r t J. J o v i c k , L i v i n g s t o n , Montana
For R e s p o n d e n t :
D a v i d W. DePuy, Livingston, Montana
S u b m i t t e d on B r i e f s : June 6, 1 9 8 5
Decided: August 20, 1985
- -
-
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
This is an appeal from an order of the Sixth Judicial
District, Park County, dismissing Marie Kingrey's petition to
remove the co-personal representatives of the estate of
Garland Counts. The order of the District Court is affirmed.
Garland Counts died intestate on March 7, 1980. Henry
and Goo1 Counts were appointed co-personal representatives on
April 15, 1980 after an intestacy hearing determining heirs.
There were 38 original heirs, six of whom have died, their
descendants increasing the heirs to at least 50. The estate
held interest in 37 unpatented and 3 patented mining claims.
Some heirs independently own interests in mining claims near
the estate's interests.
On April 27, 198% the co-personal representatives filed
their first accounting, which was approved July 27, 1982. On
October 9, 1982 the co-personal representati.ves filed a
second accounting. Notice was given and a hearing was held
before each accounting was approved by the District Court.
On November 19, 1984, one of the heirs, Marie Kingrey,
petitioned the District Court for removal of the personal
representatives for failure to use reasonable efforts to sell
the mining claims, for conflict of interest, excessive
expenditures on mining claims, a.nd failure to file receipts
with the court. Kingrey also filed interrogatories relating
to her petition to remove the co-personal representatives.
The co-personal representatives moved the court to issue
a protective order that they need not answer the following
interrogatory:
"INTERROGATORY NO. 1: List all persons, their
names, addresses and telephone numbers who were
contacted by the personal representatives with
regard to sale of the mining claim assets in the
estate of Garland S. Counts, and as to each such
person identify:
"(a) The date the contact was made.
"(b) Where the contact was made.
"(c) The persons present when the contact was
made.
"(d) The specific claims discussed.
"(e) Describe any offers received."
The District Court heard the interrogatory motion but
did not hold a hearing on removing the personal
representatives. The court, after examining evidence -
jn
.
camera, granted the co-personal representatives' motion not
to answer the interrogatory. The court denied the motion to
remove the co-personal representatives, concluding that the
co-personal representatives should continue to administer the
estate and file a third accounting. The court stated that if
the heirs were then dissatisfied they could renew their
request for an answer to the interrogatory and for removal of
the co-personal representatives.
Kingrey raises 4 issues:
I. Does S 72-3-526, MCA, require a hearing on every
petition for removal of a personal representative?
11. Did dismissing the petition for removal of personal
representatives without a hearing deny Kingrey due process
and access to the courts?
111. Should Kingrey have been granted access to
information on the personal representatives' efforts to sell
state mining claims?
IV. Should Kingrey be awarded attorney fees upon the
common fund concept and. upon equitable grounds?
Issue -
#1
Section 72-3-526 (1), MCA, the statute Kingrey cites,
states:
"A person interested in the estate may petition for
removal of a personal representative for cause at
any time. Upon filing of the petition, the court
shall fix a time and place for hearing . . . l1
Kingrey argues that this statute makes a hearing mandatory
when a petition for removal is filed. We agree that the
statute mandates a hearing if the petition states a cause for
removal. In this case, however, the petition for removal
stated no grounds upon which removal could be granted. The
District Court had recently held a hearing and approved the
second accounting. The contentions made in the petition for
removal were based. on matters previously settled.
The second paragraph of S 72-3-526, MCA, gives the
statutory causes for removal.
" (2) Cause for removal exists:
" (a) when removal would be in the best interests
of the estate; or
"(b) if it is shown that a personal representative
or the person seeking his appointment intentionally
misrepresented material facts in the proceedings
leading to his appointment or that the personal
representative has disregarded an order of the
court, has become incapable of discharging the
duties of his office, or has mismanaged the estate
or failed to perform any duty pertaining to the
office. "
The District Court concluded that:
"[Tlhe court has approved the first and second
accounts of the personal representatives after
hearing in open court following due notice to all
heirs, the most recent of which was on November 5,
1984, thereby confirming the personal
representatives actions and administration up to
that time, and - - petition for their removal
that the
so -
- soon thereafter - - establish any new
does not
grounds or constitute good cause for review or
reconsideration - - - time."
at this (Emphasis ad.ded.7
We agree with this conclusion.
The grounds for removing personal representatives ? r
.e
narrow and the District Court's discretion in probate matters
is broad. This Court will not interfere with a District
Court decision unless it is clearly established that the
District Court abused its discretion. There has been no such
showing here.
The District Court properly concluded that the petition
for removal was based on subjects covered in the first and
second accountings of the personal representatives. No
objections were made by the heirs to the accounts, and the
orders settling the accounts had become final. The time for
objecting to most matters of misconduct or malfeasance on the
part of personal representatives is upon hearing for
settlement of their accounts. See C. Hillyer, Bancroft's
Probate Practice (2d ed. 1950) (Banc Pro. Prac. 2d), S 297.
The settlement and allowance of accounts in the courts of
administration of estates is conclusive upon all persons
interested in the estate, except those laborinq under some
disability. In Re Astibia's Estate (1935), 100 Mont. 224, 46
P.2d 712; In Re McClure's Estate (1931), 90 Mont. 502, 3 P.2d
1056. And see In Re Sullivan's Estate (Ariz. 1938), 51 Ariz.
483, 78 P.2d 132, and In Re Barreiro? Estate (Cal. App.
1932), 125 Cal.App. 153, 13 P.2d 1017.
Issue #I1
Kingrey argues that the District Court's refusal to hear
the evidence supporting her petition for removal denied her
her right to present her cause and receive due process. The
procedural history facts of this case do not support her
contention. that she was denied an opportunity to be heard.
As the District Court stated in its finding of fact,
issues relating to this estate were heard on several
occasions. There had been two hearings in open court before
the approval of the first and second accountings. There was
also a hearing on the interrogatory issue discussed below.
Kingrey had several opportunities to be heard.
Due process d.oes not require a new hearing on matters
that are res judicata. At the hearings on the first and
second accountings Kingrey had an opportunity t.o be heard
concerning the causes for removal of the personal
representative. Kingrey's relief from the approval of the
accounts wa.s to appeal the order approving the accounting,
not to start a new action to remove the personal
representatives.
Issue #I11
Kingrey argues it was error to determine that the
co-personal representatives did not have to respond to the
interrogatory because the District Court could. have kept the
information confidential by issuing a protective order
restricting disclosure to the parties and their counsel. We
agree that the District Court could have issued such an order
but we do not agree that this esta,blishes the District Court
erred in allowing the co-personal representative not to
respond.
As stated above, various heirs to this estate also own
mining interests near those held by the estate. The District
Court examined - camera information concerning prospective
in
purchases and issues of the mining claims and granted the
estate's motion to limit inquiry. This is within the Court's
powers granted by the Montana Rules of Civil Procedure.
Rule 26 (c) states:
"Upon motion by a party .
. . and for good cause
shown, the court in which the action is
pending ... may make any order which justice
requires to protect a party or person from
annoyance, embarrassment, oppression, or undue
burden or expense, including . . .
that the
discovery not be had; ..
."
It was within the District Court's discretion to limit
discovery. Kingrey has shown no abuse of that discretion.
Issue #IV
Kingrey argues that she should be awarded attorney fees
from the estate because she attempted to protect a common
fund that would benefit all heirs. She argues that equity
favors an award of attorney fees. We do not agree that the
common fund doctrine applies here. In Means v. Montana Power
Co. (Mont. 1981), 625 P.2d 32, 37, this Court stated:
"The 'common fund' concept provides that when a
party through active litigation creates, reserves
or increases a fund, others sharing in the fund
must bear a portion of the litigation costs
including reasonable attorney fees. The doctrine
is employed to spread the cost of litigation among
all beneficiaries so that the active beneficiary is
not forced to bear the burden alone and the
'stranger' e . , passive) beneficiaries do not
receive their benefits at no cost to themselves."
The common fund doctrine does not apply here because
Kingrey did not create, reserve or increase a fund and there
was not reasonable grounds for her to expect to do so. In Re
Baxter's Estate (1933), 94 Mont. 257, 270, 22 P.2d 182, 188,
this Court held that the employment of counsel by an heir or
legatee does not automatically create a liability on the part
of other heirs or legatees or the estate.
The order of the District Court is affirmed.
W Concur:
e