In Re the Estate of Robbin , 230 Mont. 30 ( 1987 )

No. 87-279
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
IN THE MATTER OF THE ESTATE OF
GEORGE ROBBIN, Deceased.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael Keedy, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Murphy, Robinson, Heckathorn & Phillips; Calvin S.
Robinson, Kalispell, Montana
For Respondent :
M. Dean Jellison, Kalispell, Montana
Submitted on Briefs: Nov. 6, 1987
Decided: December 31, 1987
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This is an appeal from an order issued by the Eleventh
Judicial District Court, County of Flathead. The order was
issued June 25, 1987 and removes appellant, Sharon Herron,
from the position of personal representative of the estate of
George Robbin. We reverse and remand.
George Robbin died on January 23, 1975. His will
appointed his daughter, appellant Sharon Herron (hereinafter,
Sharon), as personal representative of the estate. With the
exception of one dollar, the will directed that Sharon Herron
receive one-half of the estate and that her former husband,
respondent Paul Herron (hereinafter, Paul), receive the
remaining one-half.
A decree of distribution for the estate of George Robbin
was entered January 31, 1977. Before the estate was totally
distributed, Sharon and Paul became involved in a marital
dispute which resulted in dissolution. The dissolution
matter has appeared before this Court on two prior occasions.
In Re the Marriage of Herron (Mont. 1987), 736 P.2d 487, 44
St.Rep. 823; and, In Re the Marriage of Herron (1980), 186
Mont. 396, 608 P.2d 97. The estate matters were held in
abeyance pending the dissolution proceedings. Following the
final resolution of the dissolution, Paul contended he was
entitled to a distribution of $52,250 from the estate of
George Robbin. After failing to receive the amount which was
allegedly owed, Paul petitioned the District Court to remove
Sharon as the personal representative of the estate on June
3, 1987. Paul based his petition on the grounds that Sharon
was not properly distributing the estate and that Sharon may
have spent the remaininq assets of the estate.
The District Court heard oral arguments on the petition
June 18, 1987. Although the District Court took judicial.
notice of the court file containing the Herron dissolution
proceeding, no evidence or testimony was received at the
hearing. On June 25, 1987, the District Court entered an
order removing Sharon from her position as personal.
representative. The District Court found:
[Tlhat a Decree of Distribution was
entered in this proceeding more than ten
years ago; that there is nothing in the
Court file to indicate that such
distribution has been accomplished; that
there is no evidence before this Court
that distribution has been made; that
there is apparent conflict between the
parties; that good cause exists for
termination of the appointment of Sharon
Herron as Personal Representative.
The order provided that the District Court would choose a new
personal representative if the parties could not agree to one
within fifteen days.
The sole issue presented on appeal is whether it was
appropriate for the District Court to remove Sharon as the
personal representative of the estate of George Robbin.
In the Herron dissolution proceedings, the District
Court divided the marital estate and a portion of the
division received by Paul was an amount of $52,250 which
represented one-half of the Robbin estate. The division of
the marital estate was affirmed by this Court. In Re the
Marriage of Herron (Mont. 1987), 736 P.2d 487, 44 St.Rep.
823. It is this award of $52,250 which Paul is now
contending Sharon should distribute from the estate of George
Robbin. Sharon's position is that Paul has already
effectively received the distribution. Although it is not.
entirely clear how this distribution has allegedly occurred,
Sharon contends that during the process of dissolution she
traced the remaining estate assets of the Robbin estate "to
either Paul, herself, or their present form." Sharon states
that when the District Court divided the marital estate it
"took the method of disposal into account and held that she
had transferred everything to Paul to which he was entitled."
There is some support for this position because the District
Court, in response to a motion to amend the findings of fact
and conclusions of law, issued an order September 4, 1 9 8 6
which noted that both parties to the dissolution had received
all of the assets to which they were entitled under the
dissolution decree. Sharon alleges that the only thing
remaining to be performed under the dissolution is that Paul
is obligated to transfer certain real property to her.
Although this matter appears before us as an issue
related to estates and probate, the real controversy is an
extension of the Herron dissolution. It is tempting to end
this matter and determine whether Paul is actually entitled
to the distribution that he seeks to receive, but we will not
do so. It would be difficult, if not impossible, to
determine which calculations are correct without receiving
the record of the dissolution. Although counsel has provided
us with certain portions of the dissolution file, the entire
record was not provided. Additionally, the sole question
presented on appeal is whether Sharon was properly removed as
personal representative. Therefore, we will focus our
decision on this question only, despite the fact that further
litigation will result in a case which probably should have
concluded long ago.
Sharon contends that the District Court order is
unsupported by any evidence or testimony. The District Court
heard oral arguments from counsel on June 1 8 , 1 9 8 7 and took
judicial notice of the dissolution file, but no evidence was
received. Sharon states that despite the lack of evidence
presented, the District Court erroneously concluded that
there was no evidence that the proper distributions were
made, that there was a conflict between the parties, and that
good cause existed to terminate her position as personal
representative. Sharon alleges there is no evidence to
support the order, and that since she was appointed personal
representative by her father's will, the order runs contrary
to the desire of the testator.
The statute governing the removal of a personal
representative for cause is § 72-3-526, MCA, which states in
part :
(1) 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.
Notice shall be given by the petitioner
to the personal representative and to
other persons as the court may order ..
(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.
We have construed the above statute in regard to similar
issues in several past decisions. We have held that a trial
judge should be given broad discretion as to when a personal
representative is to be removed "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
removal of a personal representative was affirmed on the
grounds that there were a number of expenditures of
questionable legitimacy, including an expenditure to finance
a defense for the personal representative on criminal
charges). See also, Matter of Estate of Lehner (Mont. 1986),
714 P.2d 130, 131, 43 St.Rep. 231, 233 (a district court
order removing a personal representative was affirmed where
the record demonstrated the personal representative was
unwilling "to cooperate fully and to make full disclosure to
the decedent's heirs of all the facts involving the estate").
The District Court has broad discretion in probate matters,
but the grounds for removing a personal representative are
narrow. Matter of Estate of Counts (Mont. 1985) , 704 P.2d
1052, 1055, 42 St.Rep. 1243, 1246.
An underlying purpose and policy of Montana's probate
code is to "make effective the intent of a decedent in [the]
distribution of his property." Section 72-1-102 (2)(b), MCA.
George Robbin clearly intended that his daughter Sharon serve
as personal representative. The appointment of a personal
representative should not be annulled except under the most
extreme circumstances. Matter of Estate of Stone (Mont.
1986), 727 P.2d 508, 511-512, 43 St.Rep. 1760, 1764 (Justice
Hunt dissenting).
Further, we have stated:
An order of removal of (a personal
representative) is harsh and severe; and
irregularities not directly harmful in
the management of the estate will be
overlooked. If the court can readily
remedy a matter of the complaint, no
removal will be ordered.
Matter of Estate of Tice (1962), 140 Mont. 28, 35, 367 P.2d
771, 774-775 (citing, 2 Bancroft's Probate Practice, 2d ed,
5 294, 1960 Pocket Supplements, p. 22). Since Paul
petitioned for Sharon's removal, he assumed the burden of
proving some valid grounds for removal pursuant to
5 72-3-526, MCA. See, In the Matter of the Estate of
Deschamps (1922), 65 Mont. 207, 215, 212 P. 512, 514.
However, Paul failed to set forth any substantive proof or
evidence at the hearing. Indeed, no evidence was received at
the hearing. It was improper to remove Sharon without
evidence demonstrating grounds for removal under 5 72-3-526,
MCA.
This is not to say that either party is correct in
whether or not distributions still need to be made. As noted
at the outset of this opinion, the determination of whether
further distributions are required must be made from a more
thorough review of the evidence. Instead, this opinion is
limited to holding that it was improper to dismiss Sharon as
personal representative under the facts presented.
For the foregoing reasons, we reverse and remand to the
District Court for amendment of the order in accordance with
this opinion.
We concur: