No. 85-130 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

IN THE MATTER OF THE ESTATE 

OF GARLAND S. COUNTS, Deceased. 

APPEAL FROPI: District Court of the Sixth Judicial District, 

In and for the County of Park, 

The Honorable Byron Robb, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Robert J. Jovick, Livingston, Montana 

For Respondent : 

David W. DePuy, Livingston, Montana 

Submitted on Briefs: June 6, 1985 

Decided: August 20, 1985 

--- Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

This is an appeal from an order of the Sixth Judicial 

District, Park County, dismissing Marie 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 Counts were appointed co-personal representatives on 

April 15, 1980 after an intestacy hearing determining heirs. 

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.nd failure to file receipts 

with the court. Kingrey also filed interrogatories relating 

to her petition to remove the co-personal representatives. 

The co-personal representatives moved 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) The date the contact was made. 

"(b) Where the contact was made. 

"(c) The persons present when the contact was 

made. 

"(d) The specific claims discussed. 

"(e) Describe any offers received." 

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 court denied the motion to 

remove the co-personal representatives, concluding that the 

co-personal representatives should continue to administer the 

estate and file a 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-personal representatives. 

Kingrey raises 4 issues: 

I. Does S 72-3-526, MCA, require a hearing on every 

petition for removal of a personal 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 concept and. upon equitable grounds? 
Issue - #1 

Section 72-3-526 (1) , MCA, the statute Kingrey cites, 

states: 

"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 . . . 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 the petition 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 

removal were based. on matters previously settled. 

The second paragraph of S 72-3-526, MCA, gives the 

statutory causes for removal. 

" (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. " 

The District Court 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 on November 5, 

1984, thereby confirming the personal 

representatives actions and administration up to 

that time, and -- that the petition for their removal 

-- so soon thereafter -- does not establish any new 

grounds or constitute good cause for review or 

reconsideration --- at this time." (Emphasis ad.ded.7 
We agree with this conclusion. 

The grounds for removing personal representatives ?.re 

narrow and the District Court's discretion in probate matters 

is broad. This Court will not interfere with a District 

Court decision unless it is clearly established that the 

District Court abused its discretion. There has been no such 

showing here. 

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 accounts had become final. The time for 

objecting to most matters of misconduct or malfeasance on the 

part of personal representatives is upon hearing for 

settlement of their accounts. See C. Hillyer, Bancroft's 

Probate Practice (2d ed. 1950) (Banc Pro. 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. In Re Astibia's Estate (1935), 100 Mont. 224, 46 

P.2d 712; In Re McClure's Estate (1931), 90 Mont. 502, 3 P.2d 

1056. And see In Re Sullivan's Estate (Ariz. 1938), 51 Ariz. 

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 District Court'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 court before 

the approval of the first and second accountings. There was 

also a hearing on the interrogatory issue discussed below. 

Kingrey had several opportunities to be heard. 

Due process d.oes not 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 the District Court could have issued such an order 

but we do not agree that this esta,blishes the 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 those held 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 is within the Court's 

powers granted by the Montana 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 not be 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 applies here. 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 active beneficiary 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 for her to expect to do so. In Re 

Baxter's Estate (1933), 94 Mont. 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 the part 

of other heirs or legatees or the estate. 

The order of the District Court is affirmed. 
We Concur: