NO. 83-142 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

IN THE MATTER OF THE ESTATE OF 

WALTER L. PEGG, Deceased. 

Appeal from: District Court of the Fou~teenth Judicial District, 

In and for the County of Musselshell 

Honorable Nat Allen presiding. 

Counsel of Record: 

For Appellant: 

Jock B. West argued, Billings, Montana 

For Respondent: 

Elmer J. Dolve and Russell K. Fillner, Billinas, Montana 

Russell K. Fillner argued, Billings, Montana 

Submitted: December 8. 198g 

Decided: April 3, 1984 

Filed: $3 ( ;j&q 
Mr. Justice L.C. Gulbrandson delivered the Opinion of the 

Court. 

This appeal stems from orders of the District Court of 

the Fourteenth Judicial Circuit, Musselshell County, denying 

a motion to remove the personal representative of the estate 

of Walter L. Pegg and granting a motion to approve 

settlement of a wrongful death action pursued by the same 

personal representative. For the reasons stated below, we 

affirm in part, reverse in part, and remand the case to the 

District Court of the Thirteenth Judicial District, 

Yellowstone County, for further proceedings. 

Walter L. Pegg was killed in a helicopter crash 

approximately twenty miles southeast of Williston, North 

Dakota, on May 1, 1981. According to the death certificate 

filed with the North Dakota Department of Health, the 

interval between the crash and Walter Pegg's death was 

seconds. There were no survivors among the other 

passengers, including the pilot. 

At the time of his death, Walter Pegg was domiciled in 

Montana and was married to his third wife, Virginia Fidel 

Pegg In addition to Virginia, Walter was survived by 

children from his previous marriages: Sean and Tom, the 

issue of Walter and his first wife, Karen Pegg Symonds, and 

Ian, the issue of Walter and his second wife, Carol Pegg. 

Tom resided with his father and Virginia briefly in 1979, 

but now lives with his mother and other brother in Florida. 

Ian and his mother reside in Oregon. 

Walter died intestate. Virginia sought appointment as 

the personal representative of his estate, and an order to 

that effect was granted on April 28, 1982, by the District 
Court of the Fourteenth Judicial District, Musselshell 

County. Notice of her appointment was sent to all potential 

heirs. At approximately the same time, Virginia was 

involved in negotiations with the insurance company of Blain 

Helicopters, the owner of the aircraft in which her husband 

was killed. She also filed a wrongful death action against 

Blain in April of 1982, in the District Court of the 

Thirteenth Judicial District, Yellowstone County. Although 

negotiations with the insurance company were proceeding 

successfully, the complaint was filed within the two-year 

statute of limitations to protect the interests of Walter ' s 

heirs in the event negotiations proved fruitless. 

By late 1982, Virginia received an offer from the 

company to settle the wrongful death claim for $450,000, 

under the conditions that a court approve the settlement and 

that the wrongful death action be dismissed. Virginia filed 

a petition with the District Court of the Fourteenth 

Judicial District to have the settlement approved and the 

other action dismissed. In the petition, Virginia proposed 

that $100,000 of the settlement be distributed among the 

children in equal shares undiminished by attorney's fees, 

court costs and expenses. The remaining $350,000 would be 

allocated to Virginia, and she would be responsible for her 

own attorney's fees, court costs and expenses. During the 

negotiations, the ex-wives, as guardians and next friends of 

their children, were represented by attorney Jock West. 

Virginia was represented by attorneys Russell Fillner and 

Elmer Dolve. 

The ex-wives were dissatisfied with the proposed 

distribution, and decided to contest it. The hearing on the 
proposed settlement had been set for December 28th, but one 

day before the hearing, the attorney for the ex-wives filed 

other petitions with the court requesting that Virginia be 

removed as personal representative. One petition was filed 

on behalf of Karen's children, and the other on behalf of 

Carol's child. In the petitions, the ex-wives maintained 

that Virginia had intentionally misrepresented material 

facts and had engaged in fraudulent acts with respect to 

settlement of the wrongful death claim. Specifically, the 

ex-wives contended that Virginia (1) had never married 

Walter, and therefore could not serve as personal 

representative; (2) had assisted in a fraudulent divorce 

action filed by Walter against his first wife, Karen, in 

1979; and (3) had deceitfully refused to file a survivorship 

claim against Blain Helicopters because she allegedly had 

more to gain financially from a wrongful death suit. On the 

same day these petitions were filed, the ex-wives' attorney 

filed a wrongful death action against Blain Helicopters on 

behalf of the children. This suit was filed in the 

Thirteenth Judicial District, Yellowstone County. 

A hearing on the petitions to remove was held on 

December 30, 1982. Counsel for Virginia waived notice 

requirements, and the ex-wives' attorney was allowed to 

press arguments for Virginia's removal. The first 

contention--that Virginia had never married Walter--proved 

false, as Virginia's counsel produced a marriage 

certificate indicating that the couple had been married in 

Las Vegas in February of 1980. Counsel for the ex-wives 

then concentrated his attention on the remaining grounds. 

Counsel insisted that, in a 1979 divorce action filed by 
Walter against Karen, Walter claimed that no children had 

been born of the marriage. Of course, the couple had two 

children, and the ex-wives contended that Virginia was aware 

of Walter's apparent misrepresentation to the court. The 

only witness to testify about these matters was Virginia. 

She testified that she knew that Tom and Sean were Walter's 

children by a former marriage, and that Tom had lived with 

them in Montana for a time, but that she did not know they 

were the children of Karen. In fact, she testified that she 

knew nothing about Karen Pegg or the divorce action filed by 

Walter against Karen in 1979. 

Counsel for the ex-wives also attempted to impute 

fraud on Virginia for failing to file a survivorship claim 

against the helicopter company. Any recovery from a 

survivorship action or related settlement would become part 

of the decedent's estate, and therefore pass to Virginia and 

the minor children under the intestacy statutes, with 

Virginia receiving one third of the settlement and the 

children the remainder. See Section 72-2-202(2), MCA. 

Because the proceeds of a wrongful death recovery would not 

become part of the estate, and could therefore he allocated 

differently, Virginia was allegedly in a position to 

increase unfairly her portion of any settlement from the 

insurance company. There was no evidence produced in 

support of this claim other than the coincidence that 

Virginia could, by law, benefit more from a wrongful death 

recovery. Counsel for Virginia responded that a 

survivorship action had been contemplated, but had not been 

pursued for fear that Walter's instantaneous death would 

prohibit recovery. The wrongful death theory of relief was 
deemed a more effective course of action. 

The District Court concluded that there was no 

evidence to support removal of Virginia as personal 

representative, and denied the ex-wives' petitions. Orders 

to that effect were signed on the day of the hearing, 

December 30, 1982, and notices of entry of order were 

entered and served that same day. The hearing on the 

proposed settlement offer was reset for January 10, 1983. 

At the January 10th hearing, the attorney for the 

ex-wives again filed a petition for removal of Virginia as 

the personal representative. This petition alleged that 

another pleading had been simultaneously filed in the court 

that had entertained Walter's divorce action in 1979. This 

petition alleged that service upon Karen Pegg Symonds had 

been improper, and that the final decree in that action was 

void. If the marriage of Karen and Walter was not 

dissolved, then the marriage of Virginia and Walter was 

void. Thus, Virginia could not serve as personal 

representative. 

The District Court orally denied the ex-wives 

petitions. In a memorandum issued after the hearing, the 

court indicated that the petitions were "frivolous [and] 

brought for purpose of delay and as an impermissible 

collateral attack on a final decree in another court." In 

the court's view, the ex-wives and their counsel were aware 

of all the facts necessary to support the latest petition 

during the first hearing; the doctrine of res judicata thus 

barred any consideration of these grounds. Moreover, the 

divorce decree could not be shown to be void on its face. 

Thus, collateral attack was impermissible. 
After the petition was denied, the court proceeded to 

hear testimony concerning the proposed settlement. Counsel 

for the ex-wives refused to participate in this portion of 

the hearing. His position was that the court, acting as a 

court of probate, had no jurisdiction over settlement of a 

wrongful death claim. To take part in the hearings would 

have been, in counsel's view, recognition that the court had 

jurisdiction over the parties and the subject matter. The 

hearing proceeded without involvement of the ex-wives or 

their attorney. The court adopted the proposed distribution 

of the wrongful death recovery and issued an order to that 

effect. Counsel for the ex-wives renewed his objection to 

jurisdiction for the record. 

On February 7, 1983, counsel for the ex-wives filed a 

notice of appeal "from the final orders entered by the 

[trial court] on the 10th of January, 1983 . . .", 

including the denial of the petitions to remove Virginia as 

personal representative. For the purposes of this opinion, 

the ex-wives will be referred to as appellants, and Virginia 

as the respondent. 

The issues presented for review are: 

(1) Whether the District Court erred by denying the 

motions to remove the personal representative? 

(2) Whether the District Court, acting as a court of 

probate, lacked jurisdiction to approve settlement of a 

wrongful death claim filed by the personal representative in 

another Montana judicial district? 

Before proceeding to these issues, we note and dispose 

of another argument, first raised in appellants' reply 

brief, that all of the trial court's orders of January 10 
are void because the trial judge, who officially retired 

before that date, could not under Section 19-5-103, MCA, 

issue any final orders or judgments. This jurisdictional 

matter has been addressed in a recent decision, State ex 

rel. Wilcox and Bradley v. District Court, No. 83-391. 

Following that decision here, we conclude that the trial 

judge had authority to perform all functions of an active 

district judge, including the issuance of final orders and 

judgments. 

THE MOTION TO REMOVE THE PERSONAL REPRESENTATIVE 

Section 72-1-209, MCA, provides that appellate review 

of all probate matters "is governed by the statutes and 

rules applicable to the appeals to the supreme court." Rule 

l(c), M.R.App.Civ.P. provides that a party may appeal from 

"a judgment or order granting or refusing to grant, revoking 

or refusing to revoke, letters testamentary, or of 

administration . . ." In issuing the December 30th orders, 

the District Court effectively refused to revoke 

respondent's status as administrator of Walter Pegg's estate 

and letters testamentary granted to her. The orders were 

final and therefore appealable. This conclusion is 

consistent with In re Davis' Estate (1891), 11 Mont. 196, 28 

P. 645, wherein this Court held that an order denying a 

petition to vacate an order appointing an administrator of 

an estate is appealable. 

The conclusion that the District Court 's December 

30th orders were final and appealable can also be deduced 

from reference to the laws of sister states. The language 

of Rule l(c), M.R.App.Civ.P., is virtually identical to that 

used in Cal.Prob.Code Section 1240(a) (West 1981), which 
provides that "[aln appeal may be taken from an order or the 

refusal to make an order . . .[g]ranting or revoking letters 

testamentary or of administration." An order refusing to 

revoke letters testamentary is in effect an order denying a 

petition to remove an executor or personal representative. 

In re Cuneols Estate (1963), 214 Cal.App.2d 381, 29 

Cal.Rptr. 497. Such an order is deemed final and conclusive 

and is therefore appealable. In re Extersteinls Estate 

(1934), 2 Cal.2d 13, 38 P.2d 151. Even those states like 

Colorado, which hold that orders of a probate court are 

normally interlocutory and therefore not appealable, 

recognize that, where the petitioner is attempting to 

disqualify the personal representative, an order of the 

court granting or denying the petition is considered final 

and appealable. See, e.g., OINeill v. Irwin (1966), 160 

Colo. 99, 414 P.2d 122. 

Because the December 30th orders were final and 

appealable, appellants had thirty days from the notice of 

entry of the orders to file an appeal. Rule 5, 

P4.R.App.Civ.P. Appellants did not follow this procedure. 

Instead, they simply filed another petition for removal 

immediately before the January 10th hearing scheduled for 

arguments on the proposed settlement of the wrongful death 

claim and apportionment of the proceeds thereof. As 

indicated earlier, the District Court summarily denied this 

petition, concluding that any further consideration of 

appellants1 arguments was barred by, among other things, the 

doctrine of res judicata. Appellants1 notice of appeal of 

all of the orders made on January loth, including the one 

denying the new petition, was entered on February 2, 1983, 
thirty-four days after the December 30th orders were issued, 

or four days beyond the period prescribed by the rules for 

filing notice of appeal. 

Appellants apparantly believed that by raising "new 

grounds" for removal on January loth, i.e., that Walter's 

marriage to Virginia was void because of an improper divorce 

action involving Walter and his second wife, they could 

somehow perfect an appeal from an adverse ruling by the 

trial court regardless of any failure to file a timely 

appeal from the December 30th orders. As the court noted, 

however, appellants were in possession of all the facts 

which possibly would have supported the Janua,ry 10th 

petition at the time the earlier petitions were considered 

and denied. It is well settled that a judgment or order is 

conclusive as to all matters which could have been litigated 

under the issues raised by the original pleadings. See 

Mondakota v. Reed (D.Mont. 1965), 244 F.Supp. 327, 330; 

Sherlock v. Greaves (1938), 106 Mont. 206, 214, 76 P.2d 

87,90. Appellants did not even offer an argument that the 

failure to raise the marital status question could be 

excused for reasons of inadvertance, excusable neglect, or 

newly discovered evidence. Under these circumstances, the 

appellants' new petition had all the appearances of an 

unjustified delaying tactic. Appellants should have pressed 

their appeal immediately after the issuance of the December 

30th orders. Because they did not, we cannot, under these 

facts, reach the merits of appellants' arguments in support 

of removal of the personal representative. 

THE DISTRICT COURT'S JURISDICTION OVER THE WRONGFUL DEATH 

CLAIM 
There is no question that this portion of the appeal 

is properly before this Court, as appellants' notice of 

appeal unquestionably protects review of the settlement 

issue. We therefore consider the merits of appellants' 

argument. 

The personal representative of the decedent clearly 

has a prior right to pursue a wrongful death action on 

behalf of the heirs, in order to avoid the diseconomies and 

confusion caused by a plethora of lawsuits. State ex rel. 

Carroll v. District Court (1961), 139 Mont. 367, 364 P.2d 

739. This rule was recently reaffirmed in State ex rel. 

Palmer v. District Court (Mont. 1980), 619 P.2d 1201, 38 

St.Rep. 1876. Thus, respondent was within her rights to 

pursue the wrongful death action against Blain Helicopters. 

At stake, however, is the disposition of the settlement of 

that claim. In Swanson v. Champion International Corp., 

(Mont. 1982), 646 P.2d 1166, 1169, 39 St.Rep. 639, 642, we 

emphasized that, while the proceeds of any survivorship 

recovery or settlement belong to the decedent's estate, the 

proceeds of any wrongful death recovery or settlement are 

personal to the heirs and are not part of the decedent's 

estate. From this, appellants infer that the trial court in 

which the claim was filed, and not the court considering the 

probate of the decedent's estate, has jurisdiction over 

approval of any proposed distribution of the recovery or 

settlement. Appellant notes references in Swanson, supra, 

to the "trial court" allocating the money damages resulting 

from a wrongful death award, 646 P.2d at 1171, 39 St.Rep. at 

644. Carroll, supra, can also be fairly read to support 

appellants' inference. 139 Mont. at 372, 364 P.2d at 741-2 
(reference to district court hearing the wrongful death 

action and that court's duty to allocate amount of 

recovery). Notwithstanding the reasonableness of these 

observations, more is required to support appellantst 

position than dicta and inferences arising therefrom. 

A proper resolution of this portion of the appeal 

requires a historical analysis of the wrongful death cause 

of action and its subsequent construction by the courts. 

Most wrongful death statutes are patterned after the 

original English law, Lord Campbell's Act, 1846, 9 & 10 

Vict., ch. 93. The Act created a claim for relief for the 

heirs of an individual whose death was the result of 

wrong£ ul action or neglect, with any damages obtained being 

personal to those heirs. Montana adopted the Act in 1871 

with only minor changes in wording. 1871 Mont.Terr.Laws 61. 

A streamlined version of the Act, patterned after 

Cal.Civ.Proc.Code Section 377, replaced the original version 

six years later. 1877 Mont.Terr.Laws, Code of Civil 

Procedure, Section 14 at 42. The streamlined statute, which 

has remained virtually unchanged since 1877, and is now 

enumerated Section 27-1-513, MCA, does not specify whether 

the estate or the heirs directly benefit from any recovery. 

Any uncertainty as to whether the proceeds of any 

recovery or settlement are personal to the heirs has been 

settled by courts in other jurisdictions. In In re 

Riccomits Estate (1921), 185 Cal. 458, 197 P. 97, the 

California Supreme Court construed Cal. Civ.Proc.Code, 

Section 377, which then contained the same language as now 

appears in Section 27-1-513, MCA. The California court held 

that: 
"It is well settled that the action 

authorized by the section is one solely 

for the benefit of the heirs by which 

they may be compensated for the pecuniary 

loss suffered by them by reason of the 

loss of their relatives. The money 

recovered constitutes no part of the 

estate of the deceased, and where the 

action is brought or the money recovered 

by the personal representative of the 

deceased, such personal representative is 

acting solely as a statutory trustee for 

the benefit of the heirs on account of 

whom the recovery is had." (Emphasis 

added.) 185 Cal. at 460-61, 197 P. at 98. 

Furthermore, because the proceeds were not part of the 

estate, a lower court, sitting in its capacity as a court of 

probate, had no jurisdiction over those proceeds of their 

distribution. 185 Cal. at 463-64, 197 P. at 99. 

Courts in other states having some version of Lord 

Campbell's act on their books have adhered to the same 

course of reasoning and have concluded that separate probate 

courts or district courts acting as probate courts lack 

jurisdiction to approve settlement of, or allocate the 

proceeds of, wrongful death claims. See, e.g., In re 

Estate (1965), 2 Ariz.App. 155, 406 P.2d 873, 

fii il' 'marl $3 

reaff'd as modified, 2 Ariz.App. 338, 409 P.2d 54; In re 

Mayer's Estate (1909), 106 Minn. 484, 119 N.W. 217; Aho v. 

Republic Iron & Steel Co. (1908), 104 Minn. 322, 116 N.W. 

590; Ellen v. Arthur (1936), 178 S.C. 490, 183 S.E. 306. 

reached the opposite conclusion, but these 

decisions are distinguishable, as the wrongful death 

statutes construed in those cases contain express provisions 

requiring that the proceeds of any recovery or settlement be 

allocated directly to the decedents estate, e.g., .&eeqh v. 

I K-& 

City of Bridgeport (1982), Conn. , 444 A.2d 225, or 

according to intestacy statutes, e.g., Holmes v. Price 
(1960), 186 Kan. 623, 352 P.2d 5. Washington has construed 

its wrongful death statute, which is essentially similar to 

Montana's, as requiring apportionment of proceeds by a 

probate court. HansRn v. Stimson Mill. Co (1936), 195 Wash. 

e 

621, 81 P.2d 855. This opinion, however, is of dubious 

value. It is not clear what authority the Washington court 

relies on for its holding. Strangely enough, that portion 

of the opinion contains a reference to Riccomi's Estate, 

supra, which held otherwise. See Hansen, 195 Wash. 621, 81 

P.2d at 856. And, the Hanson opinion has been criticized 

recently by some members of the Washington high court as an 

improper holding. See, e.g., Wood v. Dunlop (1974), 83 

Wash.2d. 719, 521 P.2d 1177, 1180-81 (Finley, J., 

concurring). 

On the basis of the analysis above, it would appear 

that the district court in the immediate case exceeded the 

bounds of its jurisdiction and should be reversed. It would 

be inappropriate, however, to draw that conclusion 

immediately. None of the cases which support appellants' 

position clearly articulate an unambiguous rationale for 

denying a probate court the authority to apportion proceeds 

of a wrongful death recovery. Possibly, the rationale may 

lie in preserving some distinct jurisdictional differences 

between separate courts. If so, it is unclear whether this 

distinction has been carried over into modern courts. 

Respondent makes a reasoned argument that the provisions of 

the Uniform Probate Code, as adopted in Montana, contemplate 

allowing a district court, sitting in probate, to assume 

jurisdiction of the settlement of a wrongful death claim for 

reasons of judicial economy. Specifically, respondent 
relies upon Section 72-1-202(2), MCA, (Unif. Probate Code 

Section 1-302), which gives the court authority "to make 

orders, judgments, and decrees and take all other action 

necessary and proper to administer justice in the matters 

which come before it." (Emphasis added.) Respondent also 

cites Section 72-3-605, MCA (Unif. Probate Code Section 

3-704), which allows the personal representative to "invoke 

the jurisdiction of the court, in proceedings authorized by 

this code, to resolve questions concerning the estate or its 

administration." Finally, respondent notes that Section 

72-1-102, MCA (Unif. Probate Code Section 1-102) requires a 

liberal construction of all provisions of the probate law. 

From these, respondent argues that she was acting within her 

authority to submit her proposed settlement to the District 

Court supervising her administration of the estate, and that 

the court was in turn authorized to consider the settlement 

offer and apportion the proceeds among the heirs. 

Respondent's construction of the probate laws 

admittedly possesses a certain logic. Yet no other state 

that has adopted these provisions of the Uniform Probate 

Code has construed them in the direction urged by respondent 

and followed by the district court. See Annot., Unif. Prob. 

Code Sections 1-102, 1-302, 3-704, 8 U.L.A. 24, 38, 321 

(1983) (annotations of cases construing code sections in 

uniform code states). Moreover, the code was not designed 

to replace all principles of probate law in effect prior to 

adoption of the code. Indeed, Section 72-1-104, MCA, 

provides that " [u] nless displaced by the particular 

provisions of this code, the principles of law and equity 

supplement its provisions." There is no provision in the 
code specifically authorizing a probate court to treat the 

proceeds of a wrongful death settlement or recovery as part 

of a decedent's estate and hence authorizing the court to 

allocate the proceeds. Arguably, then, the traditional rule 

enunciated by the California court and other state courts 

still applies notwithstanding the provisions of Sections 

72-1-202(2) and 72-3-605. 

Similarly, a fair reading of the previously cited code 

sections in light of the traditional rule suggests that they 

cannot be construed to reach a wrongful death award. 

Section 72-1-202(2) is preceeded by language that a probate 

court has subject matter jurisdiction over estates of 

decedents. See Section 72-1-202(1)(a), MCA. Section 

72-3-605 only authorizes the personal representative to 

invoke the probate court's jurisdiction to resolve matters 

pertaining to the decedent's estate. Because the proceeds 

of the wrongful death recovery or settlement are not 

considered part of the estate under the traditional rule, 

these sections of the probate code cannot be relied upon to 

vest the court with jurisdiction. 

In summary, it is possible that the drafters of the 

uniform code never contemplated superseding the traditional 

rule in the way suggested by respondent. The law of 

wrongful death and the law of probate have developed 

separately through the years, and while the reasons for 

requiring separate treatment of the damages obtained in a 

wrongful death action have not always been clearly 

expressed, it is still uncertain whether this separate 

treatment should be abolished. Obviously, if both the 

probate and wrongful death actions had been filed in the 
same judicial district, the court would have had no legal 

difficulty in asserting jurisdiction over both proceedings, 

although the court in Riccomi's Estate, supra, also held 

that, while one court could assume jurisdiction over both 

actions, it would have to handle them separately. 185 Cal. 

at 464, 197 P. at 99. See also 55 Cal.Jur 2d Wrongful Death 

Section 31, at 428. Here, where the two actions were filed 

in different judicial districts, the district court acting 

in probate undoubtedly exercised jurisdiction not intended 

by the traditional rule when it assumed authority over the 

settlement offer, approved it, and then ordered dismissal of 

the personal representative's wrongful death action filed in 

the other judicial district. 

In concluding that the district court exceeded its 

jurisdiction, we are not ignoring the potential economies of 

allowing a district court acting in probate to assume the 

task of settling a related matter such as a wrongful death 

claim filed in another judicial district. As noted earlier, 

however, the decision to grant district courts that 

authority is one made by legislatures. See , supra; 

Holmes, supra. We leave it to the Montana legislature to 

decide whether district courts, acting in their probate 

jurisdiction, should have some kind of authority over 

wrongful death claims filed in other judicial districts. 

JUDGMENT 

The order of the District Court denying appellants' 

motion to remove the personal representative is affirmed. 

The order of the same court, dated January 10, 1983, 

approving settlement of the claim and apportioning the 

proceeds, is vacated. The orders of the same court, dated 
February 2, 1983, authorizing the personal representative to 

dismiss appellants' wrongful death action and to sign 

releases on behalf of the natural mothers and/or guardians 

of the minor children are likewise vacated. Civil Action 

DV-82-858, the wrongful death action filed by the personal 

representative in Yellowstone County, is reinstated. Civil 

Action DV-82-2287, the wrongful death action filed by 

appellants in Yellowstone County, is dismissed. The cause 

now on appeal is remanded to the District Court of the 

Thirteenth Judicial District, Yellowstone County, for 

proceedings on the wrongful death settlement. 

We concur: 

Mr. Justice Daniel J. Shea dissents in part and will file 

a written dissent in part later.