In Re the Estate of Townsend , 243 Mont. 185 ( 1990 )

No. 89-623
IN THE SUPREME COURT OF THE STATE OF MONTANA--: c;
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0 C.
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IN THE MATTER OF THE ESTATE OF
ELEANOR T. TOWNSEND,
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:
Robert L. Johnson, ~ewistown,Montana
For Respondent:
Leonard H. McKinney, Lewistown, Montana
submitted on ~riefs: May 3, 1990
Decided: May 30, 1990
Filed:
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Justice Fred J. Weber delivered the Opinion of the Court.
In the Tenth Judicial District, Fergus County, William
Townsend was appointed personal representative of his wife's estate
as directed by her will. Based upon claimed inadequacies in the
inventory and appraisal, Robert Townsend, son of the deceased
petitioned for removal of William as personal representative. The
petition was granted and William Townsend appeals that decision.
We affirm.
The sole issue for our consideration is whether the District
Court erred in removing William Townsend as personal representative
of his wife's estate?
Eleanor Townsend died testate on February 4, 1988, in Fergus
County. Her will provided in part:
SECOND: If my husband, WILLIAM F. TOWNSEND,
survives me by at least 90 days, I devise my property as
follows:
To my said husband, all property that we own
jointly, whether in joint tenancy with right of
survivorship or not.
To my son, ROBERT L. TOWNSEND, all the rest, residue
and remainder of my property. This includes my
household furniture, goods and equipment and my
personal effects.
If my said husband fails to so survive me, then I
devise all my property to my said son.
FOURTH: I designate my said husband, WILLIAM F.
TOWNSEND, or if he declines or is unable to so act then
my said son, ROBERT L. TOWNSEND, as personal
representative of my estate, either to act without bond
and with all the powers granted in the Montana Probate
Code.
Pursuant to his duties as appointed personal representative,
William Townsend (William) petitioned for formal probate of the
will and published a Notice of Hearing. Subsequently, Robert
Townsend (Robert) signed a Waiver of Notice requestingthe District
Court to admit the will to probate, determine testacy and heirs,
and appoint ~illiampersonal representative. The District Court
granted formal probate and appointed William as personal
representative of his wife's estate.
William proceeded with the administration of the estate. He
sent a draft Inventory to Robert, showing a total value of
$262,640.66. Robert returned it with comments written on it
indicating it was not complete. William noted Robert correctly
pointed out that two individual banking accounts were omitted and
sent an apology to Robert. Then, on September 2, 1988, William
filed an Inventory and Appraisement (hereinafter "I & A") showing
a total value of $237,975.85; a Receipt; and a Petition for
Elective Share. The proposed receipt showed the delivery to
William of all of the property listed in Schedule F as jointly
owned property and as exempt property, which essentially included
the entire residual estate.
Robert appeared at the hearing on the Petition for Elective
Share and objected to the computation of the augmented estate,
suggesting that the I & A was incorrect in that: (1) it did not
include certain bank accounts to which decedent had access; (2)
the value of the 1963 Studebaker should be $2,000, not $100 as it
was listed in the inventory; (3) the inventory incorrectly
reflected the value of certain jewelry and did not list others;
(4) the silver and gold plated utensils were not separately
appraised; and (5) certain items of furniture were not separately
appraised.
The District Court concluded that the I & A did not meet the
requirements of § 72-3-607, MCA, and did not serve as a basis for
the computation of the augmented estate, the elective share and the
attorney's fee. In an order dated February 8, 1989, the District
Court denied William's petition for elective share, and required
that a "properw I & A be completed.
On May 3, 1989, Robert filed a Petition for Removal of William
as personal representative, pursuant to § 72-3-526, MCA. He based
the petition on William's failure to comply with 5 72-3-607, MCA.
As of the date of the filing of the petition, William had not yet
filed an Amended I & A.
On June 14, 1989, prior to the hearing on the Petition for
Removal, William filed an Amended I & A showing a total value of
$227,080.72. A hearing was held and the Petition for Removal was
denied. The District Court noted that although there were general
statements in the I & A to the effect that John C. Lewis was
employed to aid in the appraisal of jewelry, 572-3-607, MCA,
requires that the personal representative " a ~ ~ o i npersons to
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assist him in ascertaining the fair market value of the decedent's
property. It further noted that form INH-1 has spaces for the
signatures and names and addresses of such persons and a
designation of the items appraised by them by using the appropriate
letter. As a result, the District Court ordered that William
prepare and file within twenty days a Second Amended I & A in
strict compliance with the provisions of 5 72-3-607, MCA, and with
the INH-1 form provided by the Montana Department of Revenue.
William timely filed a Second Amended I & A identical with
the prior one except that it was signed by John C. Lewis as the
Appraiser with the language ItNot certified gemologist and items
not scientifically testedtt
written by his name. Robert renewed his
Petition for Removal of the personal representative contending that
William had failed to file an inventory listing all property of the
decedent, and that it was in the best interest of the estate that
the personal representative be removed. This time the District
Court granted the Petition for Removal, concluding that there were
genuine issues about the values of certain items; that all items
belonging to the decedent were not listed and valued or were not
listed with sufficient value; that William had failed to prepare
and file an I & A as required by the statute, and the property was
not sufficiently detailed to permit the computation of the
surviving spouse's elective share and the residuary value; and,
that approximately 18 months had passed since the appointment of
William as personal representative and an acceptable I & A had not
been filed. It further noted that the will named Robert as the
alternate personal representative. Concluding that it would be in
the best interests of the estate, the District Court removed
William as personal representative and appointed Robert as
successor personal representative. From that decision, William
appeals.
William contends the District Court abused its discretion in
removing him as personal representative for failing to file an I
& A satisfactory to one of the legatees. He maintains he made a
good faith effort to fulfill his obligations as personal
representative. He urges that omissions from his inventories, not
attributable to bad faith, do not warrant his removal and any
misconduct must be willful to justify removal of a personal
representative. He contends that the requirement in 872-3-607,
MCA, to fllistn
all property means to catalog it, not to "itemize1'
each and every particular item.
Robert maintains that Williamls I & A, filed simultaneously
with a Receipt and Petition for Elective Share, would have denied
him any share in decedent's estate. Robert maintains that the
values in the I & A are incorrect and that the I & A does not
comply with legal requirements.
Section 72-3-526, MCA, in substance states that cause for
removal of a personal representative exists "when removal would be
in the best interests of the estatew or that the personal
representative has disregarded an order of the court, or has
mismanaged the estate or failed to perform any duty pertaining to
the office. The applicable standard so far as this Court is
concerned is whether the District Court has abused its discretion.
Matter of Estate of Stone (1986), 223 Mont. 327, 330, 727 P.2d 508,
511. In our review of the removal of the personal representative,
we have in mind the holding of this Court in Matter of Estate of
Robbin (1987), 230 Mont. 30, 747 P.2d 869, where this Court pointed
out that an order of removal is considered harsh and severe and
that irregularities not directly harmful will be overlooked, with
the further limitation that if the court can remedy a matter
readily, no removal will be ordered.
Pursuant to 8 72-3-607 (I), MCA, a personal representative must
timely file an inventory which shall include listing of all
property which:
(a) the decedent owned, had an interest in or
control over, individually, in common, or jointly, or
otherwise had at the time of his death;
(b) the decedent had possessory or dispository
rights over at the time of his death or had disposed of
for less than its fair market value within 3 years of
his death; or
(c) was affected by the decedent's death for the
purpose of inheritance or estate taxes.
(2) The inventory shall include a statement of the
full and true value of the decedent's interest in every
item listed in such inventory. In this connection the
personal representative shall appoint one or more
qualified and disinterested persons to assist him in
ascertaining the fair market value as of the date of the
decedent's death of all assets included in the estate.
Different persons may be employed to appraise different
kinds of assets included in the estate. The names and
addresses of any appraiser shall be indicated on the
inventory with the item or items he appraised.
Our review of the record reveals that there is substantial evidence
to demonstrate that several items were not listed in the inventory;
that certain values were subject to question; that Mr. Lewis, the
appraiser, testified he was not a certified gemologist and that he
did not scientifically test the jewelry, and it would not surprise
him if his values were substantially different than those of a
certified gemologist. Section 72-3-607(2), MCA, requires that the
I & A include the full and true value of each item. There is
substantial evidence to show that removal was in the best interest
of the estate.
We conclude that the District Court did not abuse its
discretion in removing William Townsend as personal representative.
We affirm the District Court.
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We Concur:
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