No. 13239 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1976 

IN THE MATTER OF THE ESTATE OF 

LAURA M. DYGERT, Deceased. 

Appeal from: District Court of the Fifth Judicial District, 

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:q 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

This is an appeal from an order of the district court, 

Madison County, granting attorney fees and costs to an 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 in a nursing home 

several years before her death and during that period a guardianship had been established to protect 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 to the district court 

for appointment as special administrator for the probate of the 

will and 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 will of Laura M. Dygert. 

Three days later, on May 15, 1975, Pershing Pankey, acting 

through his attorney Chester Lloyd Jones, filed objections to the 

appointment of McLean by reason of alleged misconduct in the 

handling of the guardianship. On May 20, 1975, a petition for 

probate of will and for letters of administration was filed by 

Chester Jones, as nominee of Pershing Pankey. 

Shortly thereafter Marie Paugh filed a withdrawal of 

petition,along with McLean, for the appointment of McLean as administrator and on June 11, 1975, filed objections to the appointment of Chester Lloyd Jones as administrator. On that same date 

she filed her own petition to be appointed. 

Hearing was held on the applications and objections and 

thereafter the court issued an order appointing Chester Lloyd 
Jones to serve as administrator with will annexed and he proceeded to probate the estate. 

On August 1, 1975, Marie Paugh, the unsuccessful petitioner, submitted a claim to Chester Jones in the 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 district court 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 is whether an unsuccessful applicant for 

letters of administration is entitled to be paid attorney fees 

and costs out of the estate of the decedent? 

We answer in the negative. There is no direct authority 

in Montana on this point, so we look to other jurisdictions. As 

a matter of public policy it would be unwise to allow the funding 

of litigation out of an estate residue. 

The courts are not in agreement as to whether attorney 

fees incurred in proceedings to determine who should be appointed 

to administer an estate are allowable as charges against the estate. 

The annotation at 90 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 to litigation between rival claimants of the right to letters of administration. 

Pingree was cited and discussed by this Court in In re 

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

expense items after submitting her first annual account and her 

attorney appealed the district court's failure to allow him travel 

expenses from his home to the probate court where the estate was 
being administered. This Court found the litigation that ensued 

in a contest to administer the estate was not in anywise beneficial to the estate or the beneficiaries and the district court 

properly rejected attorney fees and expenses for conducting that 

litigation. 

We note that sections 93-8601 and 91-3405, R.C.M. 1947, 

which were in effect at the time of 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 to the words "appointed by the court." Under the language of the statute, there is 

no authority for payment of fees to an unsuccessful applicant. 

Section 91-3405, R.C.M. 1947, provides for determination 

of attorney fees by the court to be allowed to the executor or 

administrator, but not to any party applying for those positions. 

Montana's recently enacted probate code, section 91A-3- 

713(21), allows the personal representative to employ an attorney. 

Section 91A-3-721 provides for attorney fees to a personal representative for defending or prosecuting any proceeding, and grants 

protection to the personal representative insofar as attorney fees 

and costs are concerned. However, even under the new probate 

code, we can find no authority to pay a contestant or an unsuccessful applicant costs and attorney fees. 

The order of the district court allowing the claim is 

reversed. 

Justlce 

We concur: 

Chief Justice u 

/ Justices 
IN THE SUPREME COURT OF THE STATE OF MONTANA 

No. 13239 

IN THE MATTER OF THE ESTATE OF LAURA M. DYGERT, 

Deceased, 

MAY 2 6 7976 

-7LQInad $' xarneg 

ORDER CLEWI( OF SUPREME CQURT 

STATE OF MONTANA 

IT IS ORDERED that the above captioned opinion be 

amended in the 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 line of 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