### No. 13239 IN

### THE SUPREME 

### COURT OF THE 

### STATE OF MONTANA 1976

INTHE 

### MATTER OF THE 

### ESTATE OF LAURA M. 

### DYGERT, 

### Deceased.

Appeal from: District Court of theFifthJudicialDistrict, Hon. Frank 

### E. Blair, Judge presiding. Counsel of Record: For Appellant: 

### Chester L. 

### Jones, County Attorney, Virginia City,

Montana For Respondent: Morrow, Nash and Sedivy, Bozeman, Montana Argument submitted on briefs.

Filed: .' 

### Submitted: April 20, 1976 Decided:

## $7,-

< 

### 1

### ,? r:qMr. Justice John Conway Harrison delivered the Opinion of the Court. This 

### is an appeal from an order of the districtcourt, Madison County, granting attorney fees and costs toan unsuccessful applicant for 

### letters of administration. Laura M. Dygert, an 87 year old resident of Madison County, died on May 9, 1975. She had been ina nursing home several years before her death and during that period 

### a guardianshiphad been established toprotect her 

### estate and care for her needs. By agreement of her relatives, Dan Vernon McLean had been appointed guardian of her estate. McLean 

### is the son-in-law of Marie Paugh, 

### a niece of Laura Dygert. On May 12, 1975, McLean applied tothe district court for appointment as special administrator for the probate of the willand for letters of administration. Marie Paugh, 

### a niece and legatee, filed a petition nominating McLean, alleging that Pershing Pankey, a California resident, joined in that nomination. Pershing Pankey 

### is a legatee and the residuary devisee and legatee under the 

### willof Laura M. Dygert. Three days later, on May 15, 1975, Pershing Pankey, acting through his attorney Chester Lloyd Jones, filed objections tothe appointment of McLean by reason of alleged misconduct inthe handling of the guardianship. On May 20, 1975, a petition for probate of 

### willand for 

### letters of administration was filedby Chester Jones, asnominee of Pershing Pankey. Shortly thereafter Marie Paugh filed 

### a withdrawal of petition,along with McLean, for the appointment of McLean asadministrator and on June 11, 1975, filed objections tothe appointment of Chester Lloyd Jones asadministrator. On that same date she filed her own petition tobe appointed. Hearing was held on the applications and objections and thereafter the court issued an order appointing Chester LloydJones to serve 

### as administrator with 

### willannexed and he proceeded toprobate the estate. On August 

### 1, 1975, 

### Marie Paugh, the unsuccessful petitioner, submitted a claim toChester Jones inthe amount of $466.34 for her costs of filing, publication and attorney fees. The claim was rejected and Marie Paugh filed 

### a petition for allowance of the claim under the provisions of section 91A-3-806, R.C.M. 1947, Montana Uniform Probate Code. Objections 

### were filed by the administrator. The districtcourt rendered a decision allowing costs in the amount of $32.20 and attorney fees in the amount of $300. This appeal followed. The sole issue 

### iswhether an unsuccessful applicant for 

### letters of administration 

### is entitled tobe paid attorney fees and costs outof the estateof the decedent? Weanswer inthe negative. There 

### is no direct authority inMontana on this point, so

### we look toother jurisdictions. As
a matter of public policy it would be unwise toallow the funding of litigation out of an estate residue. The courts 

### are not in agreement 

### as towhether attorney fees incurred inproceedings todetermine who should be appointed toadminister an 

### estate areallowable ascharges against the estate. The annotation at90 A.L.R. 101, (Pingree

### v. First Savings Bank of Ogden, 82 Utah 437, 25 P.2d 937) notes that a decedent's 

### estate may not be charged with expenses incident tolitigation between rival claimants of the right to

### letters of administration. Pingree was cited and discussed by this Court in In

### re Ruane's Estate, 125Mont. 204, 233 P.2d 400, where the administratrixof the estate appealed from a disallowance of certain expense 

### items after submitting her firstannual account and her attorney appealed the district court's failure toallow him travel expenses from his home to the probate court where the 

### estate wasbeing administered. This Court found the litigation that ensued in a contest toadminister the estatewas not inanywise beneficial tothe estate or the beneficiaries and the districtcourt properly rejected attorney fees and expenses for conducting that litigation. Wenote that sections 93-8601 and 91-3405, R.C.M. 1947, which 

### were ineffect atthe 

### timeof the hearing for 

### letters of administration should be considered. Section 93-8601, permits the determination and allowance of attorney fees for "administrators, executors, guardians, and trustees, and agents appointed by the court." Emphasis here should be made tothe words "appointed by the court." Under the language of the statute, there 

### is

no authority for payment of fees toan unsuccessful applicant. Section 91-3405, R.C.M. 1947, provides for determination of attorney fees by the court tobe allowed tothe executor or administrator, but not toany party applying for those positions. Montana's recently enacted probate code, section 91A-3- 713(21),allows the personal representative toemploy an attorney. Section 91A-3-721 provides for attorney fees toa personal representative for defending or prosecuting any proceeding, and grants protection tothe personal representative insofar 

### as attorney fees and costs areconcerned. However, even under the new probate code, 

### we can find no authority topay a contestant or an unsuccessful applicant costs and attorney fees. The order of the districtcourt allowing the claim 

### is reversed. Justlce We concur:

Chief Justice 

# u

/ Justices

### INTHE SUPREME COURT OF THE STATE OF MONTANA

No. 13239

IN 

### THE MATTER OF 

### THE ESTATE 

### OF LAURA 

## M. DYGERT, Deceased, 

## MAY

## 26

## 7976 

# -7LQInad

# $' xarneg 

### ORDER CLEWI( OF SUPREMECQURT STATEOF MONTANA 

### IT IS

### ORDERED that the above captioned opinion be amended inthe following manner: On page 

### 4, line 3 

### from the end of the opinion, which reads: "ful applicant costs and attorney fees.", please strike the words "costs and" so the line

### will read "ful applicant attorney fees." On the last lineof the opinion on the same page, strike the period after the word "reversed" and add "with each side to pay their own costs." DATED this 26th day of May, 1976.

Justice

Justices