No. 80-88 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

IN THE MATTER OF THE ESTATE 

OF EMMA SAUTER, 

Deceased. 

leal from: District Court of the Ninth Judicial District, 

In and for the County of Glacier 

Honorable B. W. Thomas, Judge presiding. 

Counsel of Record: 

For Appellant: 

R. V. Bottomly, Great Falls, Montana 

For Respondent : 

Wilbur P. Werner, Cut Bank, Montana 

Barney Reagan, Cut Bank, Montana 

Submitted on briefs: July 11, 1980 

Filed: ~~13 %@J - 
Mr. Justice John C. Sheehy delivered the Opinion of the Court. 

 he appeal is by JoAnn Palmer, the daughter of Emma 

Sauter, deceased, from an order of the District Court, Ninth 

~udicial District, Glacier County, denying JoAnn Palmer's 

petition to remove Wilbur Werner as personal representative 

of her mother's estate, or in the alternative to appoint a 

special administrator to administer the estate. 

The single issue to be resolved is whether Wilbur 

Werner, an attorney, may properly act as personal representative of the estate when a potential asset of the estate is 

a claim against decedent's other daughter and her husband, 

Margaret and Wayne Simonson, and where Werner's law partner, 

James Nelson, was representing the Simonsons in opposing the 

claim at the time of Werner's appointment as personal representative. 

JoAnn Palmer contends that the District Court should 

either have required Werner's removal or else appointed a 

special administrator for the estate. We determine that the 

appointment of a special administrator is necessary under 

the circumstances of this case. 

The facts gleaned from the District Court records 

showed that on July 28, 1978, during the lifetime of Emma 

Sauter, a petition for the appointment of a conservator of 

her assets was filed by her daughter, JoAnn Palmer, seeking 

the appointment of Dwaine Iverson. The only other next of 

kin of Emma Sauter was another daughter, Margaret Simonson. 

On September 20, 1978, Dwaine Iverson was appointed 

conservator of the estate of Emma Sauter, and thereafter 

letters of conservatorship were issued to ~waine Iverson. 

On October 4, 1978, Dwaine J. Iverson, as conservator, 

entered into a contingent fee arrangement with R. V. ~ottomly, 
a Great Falls attorney, concerning alleged claims of the 

estate of Emma Sauter against Margaret Simonson and Wayne 

Simonson, her husband. It is unnecessary to detail the factors of the alleged claim here, except to state that the 

conservator sought $300,000 in actual damages and $50,000 

in exemplary damages from the Simonsons. 

On November 18, 1978, Emma Sauter died. Her last Will 

and Testament, executed April 17, 1962, nominated Wilbur P. 

Werner, attorney, of Cut Bank, Montana, as her personal representative, and except for two small devises, distributed her 

estate to her daughters, Margaret Simonson and JoAnn Palmer 

as equal devisees and legatees. 

The Last Will and Testament was offered for probate in 

informal proceedings on November 24, 1978, and Wilbur P. 

Werner was appointed personal representative of the decedent's estate. 

On December 8, 1978, Dwaine J. Iverson, as conservator, 

filed his petition for formal probate of the Will, determination of heirs and testacy, and appointment of personal 

representative. That petition sought the removal of Wilbur 

Werner as personal representative and the appointment of 

Dwaine J. Iverson as personal representative. The petition 

was based on the contention that Werner was unable to act 

as personal representative because of a conflict of interest. 

In the civil suit filed by Iverson, as conservator, 

against the Simonsons, the Simonsons had retained as their 

attorney to represent them in the matter, James Nelson, a 

law partner of Wilbur Werner. 

Margaret Simonson and Wilbur Werner each filed objections to the petition of Dwaine J. Iverson to be appointed 

as personal representative. Eventually, the District Court 
dismissed Iverson's petition for formal probate and his appointment as personal representative because of his lack 

of pecuniary interest in the estate of Emma Sauter. 

On July 11, 1979, JoAnn Palmer filed her petition for 

formal probate of the Will, for the removal of Werner as 

personal representative, and for the appointment of a special administrator to handle all of the affairs of the 

estate. She nominated Dwaine J. Iverson as such special 

administrator . 

Wilbur Werner, as personal representative, and 

Margaret Simonson, as the other heir of the estate, objected 

to this petition. After a hearing, the District Court judge 

denied JoAnn Palmer's petition. It is from that order of 

denial, dated November 5, 1979, that JoAnn Palmer appeals. 

With respect to the suit commenced by the conservator 

against the Simonsons, it appears that on October 25, 1979, 

James Nelson, Werner's law partner, appeared on behalf of 

the Simonsons and moved to dismiss the claim. The motion 

was overruled on November 8, 1978. Emma Sauter's death, as 

we have said, occurred on November 18, 1978. On November 

24, 1978, James Nelson, on behalf of the Simonsons, filed 

a motion for extension of time to file an answer, in the 

civil action. On December 12, 1978, after the filing of the 

petition by Iverson in the estate proceedings, the law firm 

of Werner and Nelson withdrew from defense of the civil 

action brought by the conservator. Barney Reagan was substituted as counsel of record for the Simonsons. 

Attorney James Nelson has appeared in the estate proceedings representing the personal representative in briefs 

filed in opposition to JoAnn Palmer's petition and as 

Werner's attorney in the hearing before the court. 
In the meantime, the business of the estate is suffering. Beyond the appointment of the personal representative 

and the publication of the notice to creditors, nothing 

further has been done. The estate will require a federal 

estate tax return and there are bills to be paid, and substantial assets to be accounted for. Werner has posted a 

bond as personal representative. He testified that he 

realized acting as the personal representative he was "stepping into something," and advised the Simonsons that he and 

Nelson could not continue to represent them in the civil 

action if the Will was offered for probate and he was personal representative. However, Werner has no reservations 

about his neutrality in handling the pending civil claim 

against the Simonsons as an asset of the estate. 

The conservator has filed an inventory in the conservatorship proceedings acknowledging receipt of certain items 

of personal property, outlining the real property held by 

the deceased at the time of her death, and listing also as 

an asset to be accounted for by him, the claim against the 

Simonsons. 

The order of the District Court denying JoAnn Palmer's 

petition for the removal of Werner is not without logic. 

The court pointed out that Werner was designated by the Will 

of Emma Sauter as personal representative and that he was 

a longtime counselor and friend of the Sauter family. 

There is no question about the validity of the Will nor 

the qualifications of Werner except for the possible bias 

or conflict that might exist in his handling of the claim 

against the Simonsons, said the court. The court further 

stated that there was no conflict which was so antagonistic 

to the interests of the estate that Werner would be 
unable to do justice, and further said that if JoAnn Palmer 

was dissatisfied with the personal representative's efforts, 

her remedy was to commence an action against the Simonsons 

and the personal representative, citing In Re Estate of 

Graf (1968), 150 Mont. 577, 437 P.2d 371. 

The factors which lead us to overrule the November 5, 

1979 order of the District Court are these: Letters were 

issued to Wilbur Werner as personal representative of the 

estate on November 24, 1978. On that date, and until December 

12, 1978, Werner's law partner, James Nelson, was the attorney 

of record in the civil action defending the Simonsons against 

a claim which is now purported to be an asset of the estate. 

Werner, if no special administrator is appointed, will be 

called upon as personal representative to determine what 

disposition should be made of the claim of the Simonsons 

and whether the litigation should be continued. The competing interests of JoAnn Palmer, who would be the beneficiary 

if the claim resulted in a judgment against the Simonsons 

and the Simonsons, whose interest is to defeat the civil 

litigation, are at stake. The situation is covered by the 

Canons of Professional Ethics, adopted by this Court on 

May 1, 1973, and appearing in Vol. 160 of the Montana Reports, in Section DR 5-105. In pertinent part, that section 

provides : 

"(B) A lawyer shall not continue multiple 

employment if the exercise of his independent 

professional judgment in behalf of a client 

will be or is likely to be adversely affected 

by his representation of another client, except to the extent permitted under DR 5-105(C). 

"(C) In the situation covered by DR 5-105 

. . . (B), a lawyer may represent multiple 

clients if it is obvious that he can adequately 

represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent 

professional judgment on behalf of each. 
"(D) If a lawyer is required to decline 

employment or to withdraw from employment 

under DR 5-105, no partner or associate of 

his or his firm may accept or continue such 

employment. " 

From the facts foregoing, it is clear that James Nelson, 

at the time of the appointment of the personal representative, 

could not have been appointed because of a conflict of interest that would arise out of his representation of Margaret 

Simonson against the claimed interest of the estate in the 

civil litigation. Under DR 5-105(D) above, if one lawyer 

is required to decline employment because of such possible 

conflict, no partner or associate may accept or continue 

such employment. Accordingly, Werner is within the rule 

and cannot himself act as personal representative, except 

upon full disclosure and consent of all interested parties 

as the Rule provides. It makes no difference that here 

Werner is acting as a personal representative rather than 

as an attorney. Even as a personal representative, his 

attorney is James Nelson, and the problem persists unabated. 

Nothing we say here impugns the integrity of Wilbur P. 

Werner. The intent of the Canons of Professional Ethics 

is not only to avoid impropriety, but even the appearance 

of impropriety. Lawyers in the conduct of their business, 

or matters relating to their legal business must, like 

Mrs. Caesar, be beyond suspicion. 

This is not to say that Werner may not continue in 

all other matters except with respect to the claim against 

the Simonsons to act as personal representative of the 

estate, and to take care of its business. That obviously 

was the intent of his deceased client. But it is proper 

here that the District Court appoint a special administrator for the purpose of handling the disposition of the 
claim against the Simonsons. No reason appears why Dwaine 

J. Iverson could not act in that circumscribed capacity, but 

who will be appointed special administrator is a matter for 

the discretion of the District Court. 

The situation presented here is contemplated by the 

provisions of the Uniform Probate Code. Section 72-3-701, 

MCA, provides for the appointment by the clerk in an informal 

proceeding of a special administrator or by the court in a 

. formal proceeding where the appointment is necessary to preserve the estate or to secure its proper administration, 

particularly where the general personal representative 

cannot or should not act. 

The matter of the fee for the attorney of the special 

administrator would be a subject for negotiation between 

the special administrator's attorney and JoAnn Palmer, the 

beneficiary of the alleged claim. If, however, the estate 

is benefited, and claim for attorney's fees is made against 

the estate, then the subject of the special administrator's 

attorney's fees would be a matter for determination by the 

District Court in accordance with section 72-3-631(5), MCA, 

and subject to the District Court's discretion. 

With the appointment of a special administrator, whose 

duties would be limited to the eventual disposition of the 

suit against the Simonsons, there is no reason why Wilbur 

Werner may not continue as the general personal representative of the estate. Since his law firm has withdrawn from 

the representation of the Simonsons, there is no reason why 

James Nelson may not serve as attorney representing Werner 

in matters pertaining to the general handling of the estate, 

exclusive of the claim against the Simonsons. The attorney 

who will represent the special administrator is a matter 
to be decided by the special administrator when he or she 

is appointed. 

The cause is therefore remanded to the District Court 

with the following instructions: 

1. Wilbur P. Werner may continue as the general personal 

representative of the estate, with the exception of the claim 

against the Simonsons, and may enter upon the performance of 

his duties otherwise as such personal representative. 

2. The District Court shall reconsider its order 

denying JoAnn Palmer's petition for formal proceedings in 

this estate. 

3. The District Court shall appoint a special administrator, whose duties shall be circumscribed to the eventual 

disposition of the alleged claim of the estate against the 

Simonsons. 

4. Each party shall bear his or her own costs with 

respect to this litigation relating to the appointment of 

the special administrator and this appeal, except that the 

personal representative, if the District Court determines 

that he is proceeding in good faith, shall be entitled to 

receive his necessary expenses and disbursements, including 

reasonable attorney's fees as provided under section 72-3- 

632, MCA. 

Reversed and remanded with instructions. 

We concur: (J 

YAd&u& 

Chief Justice