NO. 89-510 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

IN RE THE ESTATE OF RUTH L. NELSON, Deceased 

MAE B. BROWN, 

petitioner and Respondent, 

v. 

\J Jtd 2 fJ 1990 

GUY ROBBINS, Personal ~epresentative of the $:; 

Estate, individually, and ROBBINS, INC., CcE -2~n2;;:~ i" e#i 

a Montana corporation, CL:; CF ;7up~;;.;~~ COURT 

STATE OF ~:i~;.j"~~p~~ 

Respondent and Appellant. 

APPEAL FROM: District Court of the Ninth Judicial District, 

In and for the County of Glacier, 

The Honorable R. D. Mc~hillips, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Walter S. Murfitt and Dale E. Reagor, Luxan and 

Murfitt, Helena, Montana 

For Respondent: 

David F. Stufft, Frisbee, Moore, Stufft & Olson, 

Cut Bank, Montana 

Filed: 

Submitted on Briefs: April 26, 1990 

Decided: June 26, 1990 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

Guy L. Robbins appeals the order of the Ninth Judicial 

District Court, Glacier County, removing him for cause as the 

personal representative of the estate of Ruth L. Nelson. We 

affirm. 

The appellant raises four issues: 

1. Did the District Court err in removing the personal 

representative for cause after receiving his letter of resignation? 

2. Did the appellant receive sufficient notice of the removal 

hearing when the notice did not specify the grounds for removal? 

3. Was the District Court's order removing the personal 

representative for cause barred by the automatic stay under 11 

U.S.C. 5 362(1) after the appellant declared bankruptcy? 

4. Does the record contain sufficient evidence to support the 

District Court's conclusion that removal of the personal representative was in the best interest of the estate? 

Ruth L. Nelson died on January 11, 1986. Nelson's will named 

as heirs her sisters, Fern L. Caskey and Mae B. Brown, whom Nelson 

had not seen in over fifty years. The will appointed Guy L. 

Robbins, Nelson's financial adviser of thirty years, as personal 

representative. 

After Robbins settled the estate and submitted his final 

accounting, Brown filed an objection to several claims made by 

Robbins against the estate. She later charged Robbins with a 
number of counts of self-dealing and filed a separate cause of 

action against him, Brown v. Robbins, Cause No. DV-87-081. Brown 

twice petitioned the District Court to remove Robbins, but the 

court delayed acting on the petitions as the parties exchanged 

procedural and discovery motions in the probate proceeding. The 

court finally concluded that discovery would best proceed in a 

separate action against Robbins. 

Robbins subsequently moved to Arizona, filed bankruptcy, and 

filed a letter of resignation as personal representative. Brown 

then filed a third petition for removal. The District Court held 

a show cause hearing which neither Robbins nor his counsel 

attended. The court ordered Robbins' removal and replacement by 

Brown. Robbins now appeals that order. 

Robbins first argues that the District Court should not have 

removed him for cause after he entered his letter of resignation 

because it is an idle act not required by the law. See 5 1-3-223, 

MCA. Removal of a personal representative for cause is within the 

sound discretion of the district court. In re Estate of Stone 

(1986), 223 Mont. 327, 330, 727 P.2d 508, 511. We can find no 

principle of law or reason which would compel a district court to 

accept a personal representative's voluntary resignation over three 

petitions for removal. A voluntary resignation by a personal 

representative "is effective only upon the appointment and 

qualification of a successor representative and delivery of the 
assets to him." Section 72-3-525, MCA. Robbins's resignation had 

no effect since the District Court did not appoint a successor 

until it ordered his removal for cause. The District Court did not 

abuse its discretion in removing Robbins for cause rather than 

accepting his resignation. 

Robbins next argues that the notice of the removal hearing was 

insufficient because it did not specify Brown's reasons for seeking 

removal. He cites In re Estate of Counts for the proposition that 

the notice must state the specific grounds of removal. Robbins 

misreads the case. Counts held that the law did not require the 

district court to convene a hearing on a petition for removal when 

the court had twice before approved the personal representative's 

actions and the petition stated no new grounds for removal. Counts 

(1985), 217 Mont. 350, 354, 704 P.2d 1052, 1055. Even if some 

particularity were required, Brown's two previous petitions 

contained detailed allegations of misconduct. Those, along with 

the separate cause of action filed against Robbins, provided 

Robbins with actual notice of the grounds for the third petition. 

Robbins next argues that his filing in bankruptcy automatically stayed any finding of misconduct including the District Court's 

order of removal. We disagree. Only proceedings against the 

debtor or his property are stayed by a bankruptcy petition. See 

11 U. S. C. 5 362. Here the proceeding is the probate of the Nelson 

estate. It is not an action against Robbins or his property even 
though the removal order may help to preserve and determine Brown's 

cause of action against Robbins following the bankruptcy proceedings. See 11 U.S.C. § 523(4); § 26-3-201, MCA. 

Finally, Robbins argues that the evidence does not support the 

District Court's findings of fact and conclusions of law. For the 

most part, we agree. The court's order includes numerous findings 

supporting its conclusion that Robbins I1intentionally misrepresented facts in [the probate] proceedings1' and engaged in I1conduct 

amounting to fraud, bad faith, collusion, or breach of trust 

. . . .I1 Most of those findings are not supported by the record 

of In re Estate of Nelson, Cause No. DP 86-04, the only record 

presently before this Court. In making its determination, the 

District Court had before it both the record of this case and had 

jurisdiction of the record of Brown's separate cause of action, 

Brown v. Robbins, Cause No. DV 87-081. Had the latter record been 

filed with this Court, we could have taken judicial notice of it. 

See Rules 201 and 202(b)(6), M.R.Evid.; but see DIAgostino v. 

Schaap (1988), 230 Mont. 59, 62, 748 P.2d 466, 468. Without the 

record of the companion case, the question remains whether the 

present record contains sufficient evidence to find that the 

District Court did not abuse its discretion in removing Robbins for 

cause. We conclude that it does on at least one point. 

The record contains strong evidence that Robbins misappropriated estate funds for his personal benefit. The record 
contains photocopies of three checks totaling $60,648.60 paid to 

the Ruth Nelson Trust, a joint checking account in the names of the 

decedent, Ruth L. Nelson, and the appellant, Guy L. Robbins. The 

checks bear the date of January 10, 1986, and the signature of the 

decedent. The record also contains photocopies of medical records 

showing that on January 10, the decedent was comatose and incapable 

of signing checks. The doctor's summary states, '!She became 

disoriented and restless . . . on the evening of 01-09-86. On 01- 

10-86 she was not responsive, would not take anything orally and 

showed further deterioration . . . .I9 A nurse's note states that 

the decedent was unable to sign an admittance form on January 7 and 

that on January 10 she did not respond to verbal commands. She 

passed away sometime before 2:45 a.m. on January 11. There is no 

direct evidence that Robbins forged the decedent's signature on 

the checks, but the circumstantial evidence is strong. The checks 

transferred the $60,648.60 from the estate into an account 

accessible onlytothe decedent and Robbins, thereby making Robbins 

the direct beneficiary of the transfer. 

The District Court has an obligation to oversee the probate 

of the estate to prevent this type of abuse by the personal 

representative. We will not overturn the court's orders protecting 

the estate unless there is a clear abuse of discretion. Cause for 

removal of a personal representative exists "when removal would be 

in the best interests of the estate . . . . Section 72-3- 
526(2) (a), MCA. We hold that the District Court did not abuse its 

discretion in determining that Robbins's removal for cause was in 

the best interests of the Nelson estate. 

Affirmed. 

We concur: