No. 85-326 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

IN THE MATTER OF THE ESTATE OF 

LOUIS S. LEHNER, Deceased. 

APPEAL FROM: District court of the Thirteenth Judicial District, 

In and for the County of Stillwater, 

The Honorable G. Todd Baugh, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Morse Law Firm; Wm. R. Morse, Absarokee, Montana 

(Joanne Lehner) 

For Respondent: 

Heard Law Office; Douglas D. Howard, Columbus, 

Montana (Scott, Rrian & Michele Lehner) 

Submitted on Briefs: Nov. 14, 1985 

Decided: February 6, 1986 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from an order of the District Court 

of the Thirteenth Judicial District in and for the County of 

Stillwater, Montana, removing the personal representative of 

the estate of Louis S. Lehner, deceased. We affirm. 

Louis Lehner was killed in an industrial accident in 

Kansas in July, 1984, although his domicile was considered to 

be Stillwater County, Montana. He died intestate. His first 

marriage, to Donna, ended in divorce in 1975. Decedent's 

only children, Scott, Brian, and Michelle, now adults, were 

born of this marriage. His second marriage, to Wanda, ended 

in divorce in 1983. He married Joanne June 22, 1984, just 

over a month before he was killed. 

The decedent's older son, Scott, indicated he wanted 

to be appointed personal representa.tive and employed counsel. 

He then changed his mind and Joanne petitioned to he and was 

appointed in an informal proceeding August 31, 1984. 

Notwithstanding the provisions of S 72-3-603, MCA, Joanne 

failed to give notice to the heirs of the decedent within 

thirty days after her appointment. She contends they had 

actual notice because of various letters which were exchanged 

between the parties and because the appointment and notice to 

creditors was published in the county newspaper. 

Included in the estate's meager assets was a 1978 

pick-up truck and several life insurance policies. At the 

time of the decedent's death, the truck was subject to a lien 

in favor of the Yellowstone Bank of Absarokee, Montana, in 

the approximate amount of $3,100. Joanne arranged for a 

personal friend to loan her sufficient money to pay off the 

lien to the bank and he took an assignment of the bank's lien 

rights. The decedent's children were not given an 

opportunity to buy the truck from the estate. Bank officials 
were requested by Joanne's attorney not to divulge the fact 

of the repayments or the method by which it received payment. 

Lehner had a checking account at the Yellowstone Bank 

of Absarokee containing approximately $1,360. Joanne 

withdrew the money from this account after being appointed 

personal representative and deposited it in her account, 

claiming she did. so because her attorney had not advised her 

it was improper to co-mingle estate funds with her own funds. 

At the time of his death Lehner was the named insured 

in at least four different life insurance policies, one 

issued by Rushmore Mutual Life and three by Mutual Life 

Insurance Company of New York. The policy issued by Rushmore 

apparently designated the decedent's first wife, Donna, as 

beneficiary. The other policies designated his second wife, 

Wanda, as beneficiary of one-half of the proceeds and the 

decedent's three children as beneficiaries of the other 

one-half. 

Shortly after Lehner's d.eath, the attorney representing 

Joanne notified the Mutual of New York agent in Absarokee, 

Montana, that there had been some changes in the code whereby 

Joanne, the third wife and personal representative, would be 

entitled to the proceeds of the insurance policies, 

notwithstanding Lehner had designated others as 

beneficiaries. He made demand by letter to the Absarokee 

agent for the proceeds of the policies. He subsequently sent 

a letter to Mutual Life Insurance Company of New York 

advising them the letter constituted an adverse claim on the 

proceeds of the policies. He also commenced a suit against 

Rushmore Mutual Life Insurance Company to recover the 

proceeds of that policy. As a result, neither insurance 

company has paid the proceeds to the named beneficiaries or 

Joanne. 
Testimony indicates the inventory and appraisement 

filed by the personal representative omitted certain items of 

personal property owned by the decedent, including an 

outboard motor and a gold watch. 

The issue before the Court is whether the District 

Court abused its discretion in removing Joanne Lehner as 

personal representative of the decedent's estate. 

The removal of a personal representative for cause is 

authorized "when removal would be in the best interest of the 

estate." Section 72-3-526 (2) (a). 

The Court's role on review is not one of substituting 

. . . our judgment for that of the trial 

court. We are confined to determine 

whether there is substantial credible 

evidence to support the findings of fact 

and conclusions of law . . . Moreover, 

Rule 52(a.), M.R.Civ.P. provides, in part, 

that " [flindings of fact shall not be set 

aside unless clearly erroneous, and due 

regard shall he given to the trial court 

to judge the credibility of the 

witnesses." 

General Mills, Inc. v. Zerbe Bros., Inc. (~ont. 1983), 672 

P.2d 1109, 1111, 40 St.Rep. 1830, 1832-33. "This Court will 

not interfere with a District Court's decision unless it is 

clearly established that the District Court abused its 

discretion." Matter of Estate of Counts (Mont. 1985), 704 

P.2d 1052, 1055, 42 St.Rep. 1243, 1246. The discretion of 

the trial judge within the statute, S 72-3-526 (2) (a) , is 

wide, but the grounds must be valid and supported by the 

record. Matter of Estate of Wooten (1982), 198 Mont. 132, 

137, 643 P.2d 1196, 1199. The record before the Court 

indicates an unwillingness on Joanne's part to cooperate 

fully and to make full disclosure to the decedent's heirs of 

all the facts involving the estate. 

The Wooten case, supra, controls in these circumstances 

notwithstanding appellant's argument to the contrary. 

Despite factual differences between the transgressions in the 
case at bar and those in Wooten, so long as the District 

Court ' s grounds [for dismissal of the personal 

representative] are valid and sufficiently conform to the 

pleadings, we will not disturb its findings. 198 Mont. at 

137, 643 P.2d at 1199. Dissimilarity of transgressions is 

not a prerequisite for distinguishing Wooten. 

The petition for removal sets forth Joanne's refusal to 

account for numerous specific items of the decedent's 

personal property. She did. not notify any of the surviving 

heirs she had filed a lawsuit against an insurance company 

involving an insurance contract which is not part of the 

estate and under which neither she as personal representative 

nor the estate is a beneficiary. She asserted adverse claims 

in three other insurance contracts under which neither she as 

personal representative nor the estate is a named beneficiary 

and has no apparent interest. The facts clearly comport with 

these allegations in the petition for removal. The District 

Court concluded it was not in the best interest of the estate 

for Joanne to continue to be its personal representative. 

The record manifestly justifies this finding. We affirm the 

lower court's decision to remove Joanne Lehner as personal 

representative of the decedent's estate.