No. 86-68 

and 

86-78 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN THE MATTER OF THE ESTATE OF 

DOROTHY FARNUM, Deceased. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Nat Allen, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Roschert & Boschert; Ernest F. Roschert, Billings, 

Montana 

For Respondent: 

Terry Trieweiler, Whitefish, Montana 

Submitted on Briefs: Oct. 2, 1986 

Decided: December 12, 1986 

Filed: DEC 12 1986 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

These cases arise from the death of 12-year-old Dorothy 

Farnum (Dorothy) in an automobile/bicycle collision. The 

District Court for Flathead County, acting as a probate 

court, appointed Alice Farnum, Dorothy's mother, as personal 

representative. It also authorized her to prosecute any 

wrongful death action and approved her settlement of wrongful 

death and survival claims for $100,000. In a separate action, the same court approved allocation of the proceeds of 

the wrongful death claim hetween Dorothy's mother and father. 

We affirm. 

We restate the issues as follows: 

1. Did the Probate Court in the Eleventh Judicial 

District err in finding that Alice Farnum was a proper person 

to be personal representative of the estate of Dorothy 

Farnum? 

2. Did the Probate Court in the Eleventh Judicial 

District have jurisdiction to approve a settlement covering 

both the survival and the wrongful death causes of acti-on, 

even though the father's wrongful death action was then 

pending in the Thirteenth Judicial. District? 

3. Did the Probate Court in the Eleventh Judicial 

District err in authorizing Alice Farnum to settle both the 

survival and wrongful death causes of action and in approvinq 

the allocation of the proceeds of the settlement between the 

two actions? 

4. Did the Probate Court in the Eleventh Judicial 

District err by denying the father's motion for a new hearing 

or to amend the probate order? 
5. Did the Eleventh Judicial District Court err in 

denying the father's motion to strike and dismiss the petition for allocation of the wrongful death proceeds? 

Dorothy Farnum was 12 years old when she was killed in 

an automobile/bicycle collision in July 1983. Alice Farnum, 

Dorothy's mother ar,d her custodial parent, was informally 

appointed as personal representative (P.R.) of Dorothy's 

estate in August 1983. Alice Farnum retained an attorney who 

hegan pursuing wrongful death and survival claims against the 

driver of the car which hit Dorothy. They filed a survival 

action in federal district court. In August 1985, Dorothy's 

father, Vernon Farnum, filed a demand for notice of all 

actions taken with regard to the estate. A week later, Alice 

Farnum petitioned the Probate Court for authority to enter 

into a compromise settlement of claims against the driver of 

the car involved in the collision, noticing Vernon Farnum 

with a copy of the petition. Vernon Farnum filed his objection to the petition, stating that he had commenced his own 

wrongful death action. 

A hearing was held on Alice Farnum's petition in October 

1985. She appeared with her attorney. Vernon Farnum did not 

appear, but was represented by his attorney. Testimony was 

presented by Alice Farnum and her attorney, and by Kenneth 

Farnum, Dorothy's older brother. Alice and Kenneth Farnum 

testified that Dorothy's parents were divorced when she was 3 

years old and that Dorothy was very close to her mother but 

that she'd had virtually no contact with her father. Alice 

Farnum's attorney testified that the $100,000 settlement 

amount was the insurance limit of the driver of the car, and 

that a reasonable allocation of the amount, in light of the 

circumstances, would be $5,000 to the survival action and 
$95,000 to the wrongful death action. He also testified that 

Vernon Farnum had not been consulted during settlement discussions because he had expressed a lack of interest to 

various family members. His consent to the settlement agreement was sought because it was technically required, and that 

was when Vernon Farnum filed his demand for notice. Vernon 

Farnum's attorney called no witnesses at the hearing, but 

offered into evidence a copy of his wrongful death complaint 

filed in the District Court for Yellowstone County. 

In November 1985, the Probate Court entered its findings, conclusions, and order formally appointing Alice Farnum 

as P.R. of the estate. It also authorized Alice Farnum to 

prosecute any wrongful death action which arose as a result 

of Dorothy's death, approved settlement of the wrongful death 

and survivor actions for $100,000, and approved allocation of 

$5,000 of that amount to the survival action brought on 

behalf of the estate. The court stated that the allocation 

of proceeds from the wrongful death action between the competing claims of Alice Farnum and Vernon Farnum would have to 

be dealt with in a separate proceeding. 

Vernon Farnum moved for a new hearing on the basis of 

newly discovered evidence. In support he filed affidavits by 

himself and his former attorney. The affidavits stated that 

Mr. Farnum was unable to attend the hearing because he had 

just started a new job over 1,000 miles away, and that he had 

been a good dad to Dorothy. The court denied his motion. He 

appeals. 

Four days after the entry of the probate order, Alice 

Farnum filed a petition entitled "In the Matter of Dorothy 

Farnum, Deceased." She sent notice of this petition to 

Vernon Farnum through his attorney. In this action, she 
petitioned the court to allocate the wrongful death proceeds. 

Vernon Farnum moved to strike and dismiss the petition because he had not personally been served with process, there 

was no document entitled llcomplaint" filed in the action, and 

the court had no subject matter jurisdiction. That motion 

was denied. Taking judicial notice of the hearing and evidence in the probate matter, the court ordered that all 

$95,000 of the proceeds be allocated to Alice Farnum and none 

of the proceeds be allocated to Vernon Farnum. Vernon Farnum 

appeals that order. 

On appeal, Alice Farnum filed a motion with this Court 

requesting that the statements of fact in Vernon Farnum's 

briefs be stricken, because they are not based upon the 

record but primarily upon the affidavits filed by Vernon 

Farnum and his attorney after the October 1985 hearing. We 

do not find it necessary to strike the statements of fact. 

The matters set forth in th.e affidavits submitted by Vernon 

Farnum will be considered only for purposes of reviewing the 

denial of the motion for a new hearing, where the affidavits 

were properly before the court. 

Did the Probate Court in the Eleventh Judicial District 

err in finding that Alice Farnum was a proper person to be 

personal representative of the estate of Dorothy Farnum? 

The father argues that since he and the mother did not 

agree on who should be P.R., the court should have appointed 

another qualified person. He says that Alice Farnum did not 

act properly as P.R. because she failed to hold the wrongful 

death proceeds in trust for all heirs, violating her fiduciary duty. He maintains her appointment as P.R. should have 

been terminated. 
The Probate Court found that Alice Farnum and Vernon 

Farnum, as Dorothy's heirs, shared priority for appointment 

as P.R. under 5 72-3-502(5), MCA. Based on the evidence 

presented, it found Vernon Farnum unsuitable for appointment 

as P.R., and concluded that this left Alice Farnum as the 

only suitable person with priority for appointment. The 

witnesses at the hearing testified that Dorothy was very 

close to her mother but had virtually no relationship with 

her father, and that her father had not shown an interest in 

helping pay for Dorothy's support while she was alive or for 

her final medical and funeral expenses. We conclude that 

substantial credible evidence supports the finding that 

Vernon Farnum was unsuitable for appointment as P.R. of 

Dorothy's estate. We hold that the Probate Court was correct 

in finding that Alice Farnum had priority for appointment as 

P.R. and that she was a proper person to be P.R. of the 

estate. We further hold that there is nothing in the record 

to support termination of Alice Farnum's appointment as P.R. 

I1 

Did the Probate Court in the Eleventh Judicial District 

have jurisdiction to approve a settlement covering both the 

survival and the wrongful death causes of action, even though 

the father's wrongful death action was then pending in the 

Thirteenth Judicial District? 

Vernon Farnum says that the Probate Court acted in 

excess of its jurisdiction, under this Court's opinion in 

Matter of Estate of Pegg (Mont. 1984), 680 P.2d 316, 41 

St.Rep. 558. In that case, this Court held that a district 

court acting in probate exceeded its jurisdiction when it 

assumed authority over a settlement offer, approved it, and 
then ordered dismissal of the personal representative's 

wrongful death action filed in another judicial district. 

Alice Farnum had been informally appointed as P.R. of 

Dorothy's estate in August 1983, before she filed her survival action against the driver of the car. Vernon Farnum was 

never appointed P.R. of the estate. Our opinion in Pegg does 

not control on this issue, because in Pegg the P.R. had filed 

her action in another district than the one in which the 

court assumed jurisdiction over the settlement offer. 

In the present case, the Probate Court of the Eleventh 

Zudicial District was the only court which could approve a 

settlement in the survival action, since it had jurisdiction 

over the estate. The wrongful death settlement was inextricably linked to the survival settlement. We conclude that 

the Probate Court acted within its jurisdiction. 

Did the Probate Court in the Eleventh Judicial District 

err in authorizing Alice Farnum to settle both the survival 

and wrongful death causes of action and in approving the 

allocation of the proceeds of the settlement between the two 

actions? 

Any cause of action for Dorothy's wrongful death must he 

brought pursuant to 5 27-1-512, MCA, which provides: 

Either parent may maintain an action for the injury 

or death of a minor child and a guardian for injury 

or death of a ward when such injury or death is 

caused by the wrongful act or neglect of another. . 

This section parallels the statute for injury or wrongful 

death of an adult, found at 5 27-1-513, MCA. Under that 

statute this Court has held that there can be but one action 

for wronqful death, anl! that action must be brought by the 
personal representative. State ex rel. Carroll v. District 

Court (1961), 139 Mont. 367, 370, 364 P.2d 739, 741. The 

one-action rule is intended to avoid a multiplicity of lawsuits and all the confusion that would ensue therefrom. 

Alice Farnum argues that these reasons are equally applicable 

to wrongful death suits involving a minor, and that permitting only one action by the P.R. is the fairest approach. 

We tend to agree with the above policy arguments, but 

the language of S 27-1-512, MCA, does not support the conclusion that the P.R. must bring any action for the wrongful 

death of a child. However, Alice Farnum was properly appointed as P.R. shortly after Dorothy's death. Vernon Farnum 

apparently brought his wrongful death action only after being 

asked to approve the $100,000 settlement negotiated by Alice 

Farnum's attorney. That settlement involved not only the 

wrongful death claim, but also the survivorship claim, which 

only the P.R. could settle. The court heard testimony from 

Alice Farnum's attorney on an appropriate division of the 

proceeds between the two causes of action. Vernon Farnum 

neither offered evidence on this issue nor objected to the 

manner in which the proceeds were allocated hetween the two 

causes of action. We affirm the Probate Court's authorization to Alice Farnum to settle both actions and its allocation of the proceeds between the two actions. 

IV 

Did the Probate Court in the Eleventh Judicial District 

err by denying the father's motion for a new hearing or to 

amend the probate order? 

The Probate Court did not distribute the wrongful death 

proceeds. Instead, it very carefully ruled that it had no 

jurisdiction there. It held separate proceedings in its 
capacity as a district court to rule on the distribution of 

the wrongful death proceeds. The District Court for Flathead 

County was the proper court to approve of the wrongful death 

settlement, because Flathead County was the county of Dorothy's residence and the county in which she died. 

The motion for a new hearing was based upon a claim of 

newly discovered evidence. The affidavits submitted with the 

motion allege facts about Vernon Farnum's relationship with 

Dorothy in the years preceding her death and say that he 

failed to appear at the hearing hecause he had just bequn a 

new job. No reason was given for Mr. Farnum's failure to 

submit these affidavits earlier. We conclude that the affidavits do not present any newly discovered evidence, and that 

the court properly denied the motion for a new hearinq or to 

amend the order. 

v 

Did the Eleventh Judicial District Court err in denying 

the father's motion to strike and dismiss the petition for 

allocation of the wrongful death proceeds? 

Vernon Farnum maintains that the second proceeding, in 

which the District Court divided the proceeds of the wrongful 

death settlement, was flawed because he was not personally 

served with a summons and complaint. He argues the court. had 

no subject matter jurisdiction over the wrongful death action, and the petition was wrongly based on the probate 

order, on which the time for appeal had not yet expired. 

A proceeding to allocate the proceeds of a wrongful 

death suit involves the disposition of property, title to 

which has not been established. In Montana, the right to 

bring a wrongful death action for the death of a minor child 

is vested in either parent under S 27-1-512, MCA. The 
dismissed with prejudice. It should be noted that there is 

enough uncertainty in the statutes regarding the wrongfill 

death of minors that the legislature should clarify the 

procedures with regard to surviving parents who are separated 

and with reqard to whether such an action should be brouqht 

by a personal representative, as in S 27-1-513, MCA. 

We Concur: 
district courts1 jurisdiction over such actions is sufficiently broad to allow them to allocate the proceeds of such 

an action. Pegg, 680 P.2d at 323. Here, Alice Farnum invoked that jurisdiction by her petition to allocate the 

wrongful death settlement. Following the practice used in 

Montana- for many years, the petition was filed in lieu of the 

formality of filing a complaint and summons against the 

driver of the automobile. The latter procedure was unnecessary since a settlement agreement had already been reached. 

Notice of the petition was served upon Vernon Farnumls attorney prior to the hearing. We conclude that proper notice of 

the proceeding was provided to Vernon Farnum. 

The father has not shown any reason why consideration of 

this matter must wait until the time for appeal expired on 

the probate order. He has not shown that he was prejudiced 

by the court taking notice of the probate action, and he did 

not lose his right to appeal either order. 

The father further argues that both parents should share 

any award for the wrongful death of a minor child. That is 

generally true. However, here the evidence before the court 

demonstrated that only the mother could reasonably be expected to suffer damages including loss of consortium, mental 

anguish, and loss of future support. We conclude that the 

District Court's allocation of the proceeds between the 

parents is supported by substantial evidence. 

We affirm the orders entered by the Eleventh Judicial 

District Probate and District Courts. In view of our conclusions here, and because there can be but one wrongful death 

action arising out of Dorothy Farnum's death, we order that 

the wrongful death action denominated cause no. 85-1984 in 

the Thirteenth Judicia.1 District of Yellowsto~e County, be