No. 85-130 INTHE SUPREME COURT OF THE STATE OF MONTANA 1985

IN THE MATTER OF THE ESTATE OF GARLAND S. COUNTS, Deceased.

APPEAL FROPI: DistrictCourtof the SixthJudicialDistrict, Inand for the Countyof Park, TheHonorableByronRobb, Judge presiding.

COUNSEL OF RECORD:

ForAppellant: RobertJ. Jovick, Livingston, Montana

For Respondent: DavidW. DePuy, Livingston, Montana

Submittedon Briefs: June 6, 1985 Decided: August 20, 1985

--- ClerkMr. Justice John C. Sheehy delivered the Opinion of the Court.

This is an appeal from an order of the Sixth Judicial District,Park County,dismissingMarie Kingrey's petition to

remove the co-personal representatives of the estate of Garland Counts. The order of the District Court is affirmed. Garland Counts died intestate on March 7, 1980. Henry and Goo1 Countswere appointed co-personal representativeson April 15, 1980 after an intestacy hearing determiningheirs. There were 38 original heirs, six of whom have died, their descendants increasing the heirs to at least 50. The estate held interest in 37 unpatented and 3 patented mining claims. Some heirs independently own interests in mining claims near the estate's interests. On April 27, 198% the co-personal representatives filed their first accounting, which was approved July 27, 1982. On October 9, 1982 the co-personal representati.ves filed a second accounting. Notice was given and a hearing was held before each accounting was approved by the District Court. On November 19, 1984, one of the heirs, Marie Kingrey, petitioned the District Court for removal of the personal representatives for failure to use reasonable efforts to sell the mining claims, for conflict of interest, excessive expenditures on mining claims, a.ndfailure to file receipts with the court. Kingrey also filed interrogatories relating to her petition to remove the co-personal representatives. The co-personal representativesmoved the court to issue

a protective order that they need not answer the following interrogatory: "INTERROGATORY NO. 1: List all persons, their names, addresses and telephone numbers who were

### contacted by the personal representatives with regard to sale of the mining claim assets in the estate of Garland S. 

### Counts, and as to each such person identify: "(a) Thedate the contactwasmade. "(b) Where the contactwasmade. "(c) The persons present when the contact was made. "(d) The specific claimsdiscussed. "(e) Describe any offersreceived." The District Court heard the interrogatory motion but did not hold a hearing on removing the personal representatives. The court, after examining evidence 

### - j.n camera, granted the co-personal representatives' motion not to answer the interrogatory. The courtdenied themotion to remove the co-personal representatives, concluding that the co-personal representativesshould continue to administer the estate and filea third accounting. The court stated that if the heirs were then dissatisfied they could renew their request for an answer to the interrogatory and for removal of the co-personalrepresentatives. Kingrey raises 4 

### issues: I. 

### Does S 72-3-526, MCA, 

### require 

### a hearing on every petition forremoval of apersonal representative? 11. 

### Did dismissing the petition for removal of personal representatives without a hearing deny Kingrey due process and access to the courts? 111. 

### Should Kingrey have been granted access to information on the personal representatives' efforts to sell state mining claims?
IV. 

### Should Kingrey be awarded attorney fees upon the

common fund conceptand.upon equitable grounds?

### Issue #1 - 

### Section 72-3-526

### (1)

### , MCA, the statute Kingrey cites, states: "Aperson interested in the estatemay 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 

# . . . l1 

### Kingrey argues that this statute makes a hearing mandatory when a petition for removal is filed. We agree that the statute mandates a hearing if thepetition states a cause for removal. In this case, however, the petition for removal stated no grounds upon which removal could be granted. The District Court had recently held a hearing and approved the second accounting. The contentions made in the petition for removalwerebased.onmatters previously settled. The second paragraph of S 

### 72-3-526, MCA, gives the statutory causes forremoval. 

### "(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 theperson seekinghis 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.

### " The DistrictCourt concluded that: "[Tlhe court has approved the first and second accounts of the personal representatives after hearing in open court following due notice to all heirs, the most recent of which was onNovember 5, 

### 1984, thereby confirming the personal representatives actions and administration up to that time, and 

### -- that thepetition for their removal so soon thereafter does not establish 

### any new 

### -- 

## -- grounds or constitute good cause for review or reconsideration 

### --- at this time." (Emphasisad.ded.7We agree with this conclusion. The grounds for removing personal representatives ?.re

narrow and theDistrictCourt's discretion inprobatematters is broad. This Court will not interfere with a District Court decision unless it is clearly established that the DistrictCourt abused its discretion. There has been no such showinghere. The District Court properly concluded that the petition for removal was based on subjects covered in the first and second accountings of the personal representatives. No objections were made by the heirs to the accounts, and the orders settling the accountshad become final. The time for objecting tomost matters ofmisconduct ormalfeasance on the part of personal representatives is upon hearing for settlement of their accounts. See C. Hillyer, Bancroft's Probate Practice (2d ed. 1950) (BancPro. Prac. 2d), S 297. The settlement and allowance of accounts in the courts of administration of estates is conclusive upon all persons interested in the estate, except those laborinq under some disability. InRe Astibia's Estate (1935),100Mont. 224, 46 P.2d 712; InReMcClure's Estate (1931),90Mont. 502, 3 P.2d 1056. And see InRe Sullivan's Estate (Ariz. 1938), 51Ariz. 483, 78 P.2d 132, and In Re Barreiro? Estate (Cal. App. 1932), 125 Cal.App. 153, 13 P.2d 1017. Issue #I1 Kingrey argues that the DistrictCourt's refusal to hear the evidence supporting her petition for removal denied her her right to present her cause and receive due process. The procedural history facts of this case do not support her contention.that she was denied an opportunity to be heard.

### As the District Court stated in its finding of fact, issues relating to this estate were heard on several occasions. There had been two hearings in open courtbefore the approval of the first and second accountings. Therewas also a hearing on the interrogatory issue discussed below. Kingrey had several opportunitiestobe heard. Due process d.oesnot require a new hearing on matters that are res judicata. At the hearings on the first and second accountings Kingrey had an opportunity t.o be heard concerning the causes for removal of the personal representative. Kingrey's relief from the approval of the accounts wa.s to appeal the order approving the accounting, not to start a new action to remove the personal representatives. Issue #I11 

### Kingrey argues it was error to determine that the co-personal representatives did not have to respond to the interrogatory because the District Court could.have kept the information confidential by issuing a protective order restricting disclosure to the parties and their counsel. We 

### agree that theDistrict Court could have issued such an order but we donot agree that this esta,blishesthe District Court erred in allowing the co-personal representative not to respond. As stated above, various heirs to this estate also own mining interests near thoseheld by the estate. The District Court examined 

### - in camera information concerning prospective purchases and issues of the mining claims and granted the estate's motion to limit inquiry. This iswithin the Court's powers granted by theMontana Rules of Civil Procedure. Rule 26

### (c)states:"Upon motion by a party 

# . . . and for good cause shown, the court in which the action is pending

# . . . may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including 

# . . 

# . that the discovery notbe had;

# . .."

It was within the District Court's discretion to limit discovery. Kingrey has shown no abuse of that discretion. Issue 

### #IV Kingrey argues that she should be awarded attorney fees from the estate because she attempted to protect a common fund that would benefit all heirs. She argues that equity favors an award of attorney fees. We do not agree that the

common fund doctrine applieshere. In Means v. Montana Power Co. (Mont. 1981), 625 P.2d 32, 37, this Court stated: "The 'common fund' concept provides that when a party through active litigation creates, reserves or increases a fund, others sharing in the fund must bear a portion of the litigation costs including reasonable attorney fees. The doctrine is employed to spread the cost of litigation among all beneficiaries so that the activebeneficiary is not forced to bear the burden alone and the

'stranger' e.,passive) beneficiaries do not receive their benefits at no cost to themselves." The common fund doctrine does not apply here because Kingrey did not create, reserve or increase a fund and there

was not reasonable grounds forher to expect to do so. InRe Baxter's Estate (1933),94Mont. 257, 270, 22 P.2d 182, 188, this Court held that the employment of counsel by an heir or legatee does not automatically create a liability on thepart 

### of other heirs or legateesor the estate. The order of theDistrictCourt is affirmed.We 

### Concur: