In Re the Estate of Lehner , 220 Mont. 129 ( 1986 )

No. 85-326
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
IN THE MATTER OF THE ESTATE OF
LOUIS S. LEHNER, Deceased.
APPEAL FROM: District court of the Thirteenth Judicial District,
In and for the County of Stillwater,
The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Morse Law Firm; Wm. R. Morse, Absarokee, Montana
(Joanne Lehner)
For Respondent:
Heard Law Office; Douglas D. Howard, Columbus,
Montana (Scott, Rrian & Michele Lehner)
Submitted on Briefs: Nov. 14, 1985
Decided: February 6, 1986
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This is an appeal from an order of the District Court
of the Thirteenth Judicial District in and for the County of
Stillwater, Montana, removing the personal representative of
the estate of Louis S. Lehner, deceased. We affirm.
Louis Lehner was killed in an industrial accident in
Kansas in July, 1984, although his domicile was considered to
be Stillwater County, Montana. He died intestate. His first
marriage, to Donna, ended in divorce in 1975. Decedent's
only children, Scott, Brian, and Michelle, now adults, were
born of this marriage. His second marriage, to Wanda, ended
in divorce in 1983. He married Joanne June 22, 1984, just
over a month before he was killed.
The decedent's older son, Scott, indicated he wanted
to be appointed personal representa.tive and employed counsel.
He then changed his mind and Joanne petitioned to he and was
appointed in an informal proceeding August 31, 1984.
Notwithstanding the provisions of S 72-3-603, MCA, Joanne
failed to give notice to the heirs of the decedent within
thirty days after her appointment. She contends they had
actual notice because of various letters which were exchanged
between the parties and because the appointment and notice to
creditors was published in the county newspaper.
Included in the estate's meager assets was a 1978
pick-up truck and several life insurance policies. At the
time of the decedent's death, the truck was subject to a lien
in favor of the Yellowstone Bank of Absarokee, Montana, in
the approximate amount of $3,100. Joanne arranged for a
personal friend to loan her sufficient money to pay off the
lien to the bank and he took an assignment of the bank's lien
rights. The decedent's children were not given an
opportunity to buy the truck from the estate. Bank officials
were requested by Joanne's attorney not to divulge the fact
of the repayments or the method by which it received payment.
Lehner had a checking account at the Yellowstone Bank
of Absarokee containing approximately $1,360. Joanne
withdrew the money from this account after being appointed
personal representative and deposited it in her account,
claiming she did. so because her attorney had not advised her
it was improper to co-mingle estate funds with her own funds.
At the time of his death Lehner was the named insured
in at least four different life insurance policies, one
issued by Rushmore Mutual Life and three by Mutual Life
Insurance Company of New York. The policy issued by Rushmore
apparently designated the decedent's first wife, Donna, as
beneficiary. The other policies designated his second wife,
Wanda, as beneficiary of one-half of the proceeds and the
decedent's three children as beneficiaries of the other
one-half.
Shortly after Lehner's d.eath, the attorney representing
Joanne notified the Mutual of New York agent in Absarokee,
Montana, that there had been some changes in the code whereby
Joanne, the third wife and personal representative, would be
entitled to the proceeds of the insurance policies,
notwithstanding Lehner had designated others as
beneficiaries. He made demand by letter to the Absarokee
agent for the proceeds of the policies. He subsequently sent
a letter to Mutual Life Insurance Company of New York
advising them the letter constituted an adverse claim on the
proceeds of the policies. He also commenced a suit against
Rushmore Mutual Life Insurance Company to recover the
proceeds of that policy. As a result, neither insurance
company has paid the proceeds to the named beneficiaries or
Joanne.
Testimony indicates the inventory and appraisement
filed by the personal representative omitted certain items of
personal property owned by the decedent, including an
outboard motor and a gold watch.
The issue before the Court is whether the District
Court abused its discretion in removing Joanne Lehner as
personal representative of the decedent's estate.
The removal of a personal representative for cause is
authorized "when removal would be in the best interest of the
estate." Section 72-3-526 (2)(a).
The Court's role on review is not one of substituting
... our judgment for that of the trial
court. We are confined to determine
whether there is substantial credible
evidence to support the findings of fact
and conclusions of law ...
Moreover,
Rule 52(a.), M.R.Civ.P. provides, in part,
that " [flindings of fact shall not be set
aside unless clearly erroneous, and due
regard shall he given to the trial court
to judge the credibility of the
witnesses."
General Mills, Inc. v. Zerbe Bros., Inc. (~ont.1983), 672
P.2d 1109, 1111, 40 St.Rep. 1830, 1832-33. "This Court will
not interfere with a District Court's decision unless it is
clearly established that the District Court abused its
discretion." Matter of Estate of Counts (Mont. 1985), 704
P.2d 1052, 1055, 42 St.Rep. 1243, 1246. The discretion of
the trial judge within the statute, S 72-3-526 (2)(a), is
wide, but the grounds must be valid and supported by the
record. Matter of Estate of Wooten (1982), 198 Mont. 132,
137, 643 P.2d 1196, 1199. The record before the Court
indicates an unwillingness on Joanne's part to cooperate
fully and to make full disclosure to the decedent's heirs of
all the facts involving the estate.
The Wooten case, supra, controls in these circumstances
notwithstanding appellant's argument to the contrary.
Despite factual differences between the transgressions in the
case at bar and those in Wooten, so long as the District
Court ' s grounds [for dismissal of the personal
representative] are valid and sufficiently conform to the
pleadings, we will not disturb its findings. 198 Mont. at
137, 643 P.2d at 1199. Dissimilarity of transgressions is
not a prerequisite for distinguishing Wooten.
The petition for removal sets forth Joanne's refusal to
account for numerous specific items of the decedent's
personal property. She did. not notify any of the surviving
heirs she had filed a lawsuit against an insurance company
involving an insurance contract which is not part of the
estate and under which neither she as personal representative
nor the estate is a beneficiary. She asserted adverse claims
in three other insurance contracts under which neither she as
personal representative nor the estate is a named beneficiary
and has no apparent interest. The facts clearly comport with
these allegations in the petition for removal. The District
Court concluded it was not in the best interest of the estate
for Joanne to continue to be its personal representative.
The record manifestly justifies this finding. We affirm the
lower court's decision to remove Joanne Lehner as personal
representative of the decedent's estate.