No. 87-279

INTHE SUPREME COURT OF THE STATE OF MONTANA
1987

IN THEMATTER OF THE ESTATE OF GEORGE ROBBIN, Deceased.

APPEAL FROM: District Court of the Eleventh Judicial District, Inand for the County of Flathead, TheHonorable Michael Keedy, Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: Murphy, Robinson,Heckathorn & Phillips; Calvin S. Robinson, Kalispell,Montana

For Respondent:
M. Dean Jellison,Kalispell,Montana

Submitted on Briefs: Nov. 6,1987
Decided: December 31, 1987Mr. JusticeJohn ConwayHarrison delivered the Opinion of the Court.

This is an appeal from an order issued by the Eleventh Judicial District Court, County of Flathead. The order was issued June 25, 1987 and removes appellant, Sharon Herron, from theposition ofpersonal representative

### of the estate of George Robbin. We reverse and remand. George Robbin died on January 23, 1975. His will appointed hisdaughter,appellant Sharon Herron (hereinafter, Sharon), as personal representativeof the estate. With the exception of one dollar, thewill directed that SharonHerron receive one-half of the estate and that her former husband, respondent Paul Herron (hereinafter, Paul), receive the remaining one-half. A decree ofdistribution for the estate of GeorgeRobbin

was entered January 31, 1977. Before the estatewas totally distributed, Sharon and Paul became involved in a marital dispute which resulted in dissolution. The dissolution matter has appearedbefore this Courton twoprior occasions. In Re the Marriage of Herron (Mont. 1987), 736 P.2d 487, 44 St.Rep. 823; and, In Re the Marriage of Herron (1980), 186 Mont. 396, 608 P.2d 97. The estate matters were held in abeyance pending the dissolution proceedings. Following the final resolution of the dissolution, Paul contended he was entitled to a distribution of $52,250 from the estate of GeorgeRobbin. After failing to receive the amountwhich was allegedly owed, Paul petitioned the DistrictCourt to remove Sharon as the personal representative of the estate on June 3, 1987. Paulbased his petition on the grounds that Sharon

was not properly distributing the estate and that Sharonmay have spent the remaininq assets of the estate.The District Court heard oral arguments on the petition June 18, 1987. Although the District Court took judicial. notice of the court file containing the Herron dissolution proceeding, no evidence or testimony was received at the hearing. On June 25, 1987, the District Court entered an order removing Sharon from her position as personal. representative. The District Court found: [Tlhat a Decree of Distribution was entered in this proceeding more than ten years ago; that there is nothing in the Court file to indicate that such distribution has been accomplished; that there is no evidence before this Court that distribution has been made; that there is apparent conflict between the parties; that good cause exists for termination of the appointment of Sharon Herron as PersonalRepresentative.
The orderprovided that the District Courtwould choose anew personal representativeif the parties could not agree to one within fifteendays. The sole issue presented on appeal is whether it was appropriate for the District Court to remove Sharon as the personal representativeof the estate of GeorgeRobbin. In the Herron dissolution proceedings, the District Court divided the marital estate and a portion of the division received by Paul was an amount of $52,250 which represented one-half of the Robbin estate. The division of the marital estate was affirmed by this Court. In Re the Marriage of Herron (Mont. 1987), 736 P.2d 487, 44 St.Rep. 823. It is this award of $52,250 which Paul is now contending Sharon should distribute from the estate of George Robbin. Sharon's position is that Paul has already effectively received the distribution. Although it is not. entirely clear how this distribution has allegedly occurred,

### Sharon contends that during the process of dissolution she traced the remaining estate assets of the Robbin estate "to either Paul,herself, or their present form." Sharon states that when the District Court divided the marital estate it "took the method of disposal into account and held that she had transferred everything to Paul towhichhewas entitled." There is some support for this positionbecause the District Court, in response to amotion to amend the findings of fact and conclusions of law, issued an order September 4, 1986 

### which noted that both parties to the dissolutionhad received all of the assets to which they were entitled under the dissolution decree. Sharon alleges that the only thing remaining to be performed under the dissolution is that Paul is obligated to transfer certainrealproperty toher. Although this matter appears before us as an issue related to estates and probate, the real controversy is an extension of the Herron dissolution. It is tempting to end this matter and determine whether Paul is actually entitled to thedistribution thathe seeks to receive,butwewillnot do so. It would be difficult, if not impossible, to determine which calculations are correct without receiving the record of the dissolution. Although counselhasprovided

us with certain portions of the dissolution file, the entire record was not provided. Additionally, the sole question presented on appeal iswhether Sharonwasproperly removed as 

### personal representative. Therefore, we will focus our decision on thisquestion only,despite the fact that further litigation will result in a case which probably should have concluded long ago. Sharon contends that the District Court order is unsupportedby any evidence or testimony. The DistrictCourt heard oral arguments from counsel on June 18, 1987 

### and took

### judicial notice of the dissolution file,but no evidencewas received. Sharon states that despite the lack of evidence presented, the District Court erroneously concluded that there was no evidence that the proper distributions were made, that therewas a conflict between the parties, and that good cause existed to terminate her position as personal representative. Sharon alleges there is no evidence to support the order, and that since shewas appointed personal representativeby her father'swill, the order runs contrary to thedesire of the testator. The statute governing the removal of a personal representative for cause is § 

### 72-3-526,MCA,which states in part: 

### (1) 

### A person interested in the estate may petition for removal of a personal representative for cause at any time. Upon filing of the petition, the court shall fix a time and place for hearing. Notice shall be given by the petitioner to the personal representative and to other persons as the courtmay order

# . .

(2) Cause forremovalexists: (a) when removal would be in the best interestsof the estate; or (b) if it is shown that a 

### personal representative or the person seeking his appointment intentionally misrepresented material facts in theproceedings leading to his appointment or that the personal representative has disregarded an order of the court, has become incapable of discharging the duties of his office,or has mismanaged the estate or failed to perform any duty pertaining to the office.We have construed the above statute inregard to similar issues in several past decisions. We have held that a trial judge should be given broad discretion as to when a personal representative is to be removed "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 removal of a personal representative was affirmed on the grounds that there were a number of expenditures of questionable legitimacy, including an expenditure to finance

a defense for the personal representative on criminal charges). Seealso,Matter ofEstate ofLehner (Mont. 1986), 714 P.2d 130, 131, 43 St.Rep. 231, 233 (a district court order removing a personal representativewas affirmed where the record demonstrated the personal representative was unwilling "to cooperate fully and tomake full disclosure to the decedent's heirs of all the facts involving the estate"). The District Court has broad discretion in probate matters, but the grounds for removing a personal representative are

narrow. Matter of Estate of Counts (Mont. 1985)

## , 704 P.2d 1052, 1055, 42 St.Rep. 1243, 1246. An underlying purpose and policy of Montana's probate code is to "make effective the intent of a decedent in [the] distribution of his property." Section 72-1-102 (2)(b)

## ,MCA. George Robbin clearly intended that his daughter Sharon serve

as personal representative. The appointment of a personal representative should not be annulled except under the most extreme circumstances. Matter of Estate of Stone (Mont. 1986), 727 P.2d 508, 511-512, 43 St.Rep. 1760, 1764 (Justice Huntdissenting). Further,we have stated: An order of removal of (a personal representative) is harsh and severe; and irregularities not directly harmful inthe management of the estate will be overlooked. If the court can readily remedy a matter of the complaint, no removal will be ordered.

Matter of Estate of Tice (1962), 140 Mont. 28, 35, 367 P.2d 771, 774-775 (citing,2 Bancroft's Probate Practice, 2d ed, 5 294, 1960 Pocket Supplements, p. 22). Since Paul petitioned for Sharon's removal, he assumed the burden of proving some valid grounds for removal pursuant to 5 72-3-526, MCA. See, In the Matter of the Estate of Deschamps (1922), 65 Mont. 207, 215, 212 P. 512, 514. However, Paul failed to set forth any substantive proof or evidence at the hearing. Indeed, no evidencewas received at the hearing. It was improper to remove Sharon without evidence demonstrating grounds for removal under 5 72-3-526, MCA

# .This is not to say that either party is correct in whether or not distributions stillneed to be made. As noted at the outset of this opinion, the determination of whether further distributions are required must be made from a more thorough review of the evidence. Instead, this opinion is limited to holding that itwas improper to dismiss Sharon as personal representative under the factspresented. For the foregoing reasons,we reverse and remand to the District Court for amendment of the order in accordancewith this opinion.We concur: