No. 85-326 IN THE SUPREMECOURT OF THE STATEOF MONTANA 1986

INTHEMATTER OF THE ESTATE OF LOUIS S. LEHNER,Deceased.

APPEAL FROM: District court of theThirteenth JudicialDistrict, In and for the County of Stillwater, The Honorable G. Todd Baugh, Judgepresiding.

COUNSEL OF RECORD:

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

(JoanneLehner)

For Respondent: Heard Law Office; DouglasD. Howard, Columbus, Montana (Scott, Rrian & Michele Lehner)

Submitted on Briefs: Nov. 14, 1985 Decided:February 6,1986

ClerkMr. 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 domicilewas considered to be StillwaterCounty,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 thismarriage. His secondmarriage, toWanda, ended in divorce in 1983. He married Joanne June 22, 1984, just over a month beforehe was killed. The decedent's older son, Scott, indicated he wanted tobe appointed personal representa.tiveand 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 ofvarious letterswhichwere exchanged between the parties and because the appointmentand notice to creditorswaspublished 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 truckwas 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 sufficientmoney to pay off the lien to the bank and he took an assignmentof thebank's lien rights. The decedent's children were not given an opportunity tobuy the truck from the estate. Bank officialswere requested by Joanne's attorney not to divulge the fact of the repaymentsor themethod 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 fundswith 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 InsuranceCompany ofNew York. The policy issuedby 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 theproceeds of thepolicies. 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 thepersonal representative omitted certain items of personal property owned by the decedent, including an outboardmotor and a gold watch. The issue before the Court is whether the District Court abused its discretion in removing Joanne Lehner as personal representativeof the decedent's estate. The removal of a personal representative for cause is authorized "when removal would be in the best interestof 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 

### "[flindingsof fact shallnotbe 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. "ThisCourt 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 tomake full disclosure to the decedent's heirs of all the facts involving the estate. TheWooten case, supra,controls in these circumstances notwithstanding appellant's argument to the contrary. Despite factual differences between the transgressions in thecase 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 aprerequisite for distinguishingWooten. Thepetition for removal sets forthJoanne'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 aspersonal 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 itwas 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.