No. 87-279 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

IN THE MATTER OF THE ESTATE OF 

GEORGE ROBBIN, Deceased. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Michael Keedy, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

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, 1987 
Mr. Justice John Conway Harrison 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 the position of personal representative of the estate of 

George Robbin. We reverse and remand. 

George Robbin died on January 23, 1975. His will 

appointed his daughter, appellant Sharon Herron (hereinafter, 

Sharon), as personal representative of the estate. With the 

exception of one dollar, the will directed that Sharon Herron 

receive one-half of the estate and that her former husband, 

respondent Paul Herron (hereinafter, Paul), receive the 

remaining one-half. 

A decree of distribution for the estate of George Robbin 

was entered January 31, 1977. Before the estate was totally 

distributed, Sharon and Paul became involved in a marital 

dispute which resulted in dissolution. The dissolution 

matter has appeared before this Court on two prior 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 

George Robbin. After failing to receive the amount which was 

allegedly owed, Paul petitioned the District Court to remove 

Sharon as the personal representative of the estate on June 

3, 1987. Paul based his petition on the grounds that Sharon 

was not properly distributing the estate and that Sharon may 

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 Personal Representative. 

The order provided that the District Court would choose a new 

personal representative if the parties could not agree to one 

within fifteen days. 

The sole issue presented on appeal is whether it was 

appropriate for the District Court to remove Sharon as the 

personal representative of the estate of George Robbin. 

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 to which he was entitled." 

There is some support for this position because the District 

Court, in response to a motion to amend the findings of fact 

and conclusions of law, issued an order September 4, 1986 

which noted that both parties to the dissolution had 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 certain real property to her. 

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 the distribution that he seeks to receive, but we will not 

do so. It would be difficult, if not impossible, to 

determine which calculations are correct without receiving 

the record of the dissolution. Although counsel has provided 

us with certain portions of the dissolution file, the entire 

record was not provided. Additionally, the sole question 

presented on appeal is whether Sharon was properly removed as 

personal representative. Therefore, we will focus our 

decision on this question 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 

unsupported by any evidence or testimony. The District Court 

heard oral arguments from counsel on June 18, 1987 and took 
judicial notice of the dissolution file, but no evidence was 

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 there was 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 she was appointed personal 

representative by her father's will, the order runs contrary 

to the desire 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 court may order . . 

(2) Cause for removal exists: 

(a) when removal would be in the best 

interests of the estate; or 

(b) if it is shown that a personal 

representative or the person seeking his 

appointment intentionally misrepresented 

material facts in the proceedings 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 in regard 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). See also, Matter of Estate of Lehner (Mont. 1986), 

714 P.2d 130, 131, 43 St.Rep. 231, 233 (a district court 

order removing a personal representative was affirmed where 

the record demonstrated the personal representative was 

unwilling "to cooperate fully and to make 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 

Hunt dissenting). 

Further, we have stated: 

An order of removal of (a personal 

representative) is harsh and severe; and 

irregularities not directly harmful in 
the 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 evidence was 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 still need 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 it was improper to dismiss Sharon as 

personal representative under the facts presented. 

For the foregoing reasons, we reverse and remand to the 

District Court for amendment of the order in accordance with 

this opinion. 
We concur: