No. 80-293 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

THE STATE OF MONTANA ex re1 

JOANN PALMER, 

Plaintiff in Intervention and 

Relator, 

THE DISTRICT COURT OF THE 

NINTH JUDICIAL DISTRICT et al., 

Defendant and Respondent. 

ORIGINAL PROCEEDING: 

Counsel of Record: 

For Plaintiff: 

R. V. Bottomly, Great Falls, Montana 

For Respondent: 

Poore, Roth, Robischon and Robinson, Butte, Montana 

Nelson and Werner, Cut Bank, Montana 

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Submitted: September 4, 1980 

Decided: DEC - 4 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

Relator JoAnn Palmer applied to this Court on September 4, 

1980, for a writ of supervisory control, seeking review of the 

District Court's denial of her motion for intervention. We find 

that this issue is properly before this Court by 'writ, but we 

deny all re1 ief to relator. 

Relator and her sister Margaret Simonson are the primary 

heirs of their deceased mother, Emma Sauter. Prior to Emma's 

death, Emma's conservator, Dwaine Iverson, initiated proceedings 

against Margaret Simonson and her husband, on behalf of Emma 

Sauter. He alleged oppression, fraud, and malice in their 

leasing of farmland from Emma. The Simonsons retained the law 

firm of Werner & Nelson to defend the action, but Emma died 

testate prior to further proceedings in the lawsuit. 

Emma's will named Wilbur Werner of the Werner & Nelson law 

firm as personal representative of her estate. Shortly 

thereafter, Barney Reagan was substituted as counsel for defendants Simonsons in the previously-fil ed lawsuit. JoAnn Palmer 

then petitioned the court for the appointment of Dwaine Iverson 

as personal representative of the estate, or in the alternative 

for his appointment as a special administrator for the purpose of 

handling the lawsuit against the Simonsons. Palmer alleged that 

Werner should be di squal ified from acting as personal representative because of his conflict of interest in previously representing the defendants. In November 1979, the trial court denied 

the petition, finding that petitioner did not adequately show 

that Werner was biased and further that Palmer had an adequate 

remedy against Werner if he failed to prosecute the claim. 

Palmer appealed that ruling to this Court. In an opinion 

dated August 13, 1980, In the Matter of the Estate of Sauter 

(1980) , Mont. , 615 P.2d 875, 37 St.Rep. 1425, we determined that Werner should remain as personal representative, but 

that a special administrator should be appointed by the District 

Court solely for handling the claim against the Simonsons. The 
di strict judge appointed Dwaine Iverson, Palmer's personal 

choice. 

In February, 1980, while the appeal was pending, Palmer 

filed a motion to intervene in the law suit, alleging that Werner 

was not effectively pursuing the claim against the Simonsons, and 

that in order to protect her interest as beneficiary, she should 

become a party. The district judge denied her motion on June 20, 

1980. Palmer filed a notice of appeal from that ruling on July 

17, 1980. Prior to the hearing of the appeal, but subsequent to 

this Court's ruling of August 13 on the matter of the personal 

representative, Palmer petitioned this Court for a writ of supervisory control to review the denial of the motion to intervene. 

Rule 1, M.R.App.Civ.P, sets out those judgments or orders 

from which an appeal can be taken. A denial of a motion to 

intervene is not one of those orders. Thus, the June 20, 1980, 

ruling by the trial court is not appealable, but we find that it 

is properly before us on a writ. If we were not to review this 

decision immediately, and the pending lawsuit went to completion 

without the joinder of a proper intervenor, the intervenor would 

be left at the end of the suit without a proper remedy at law. 

However, we find that JoAnn Palmer is not a proper intervenor in 

the suit because her interest is adequately represented by the 

special admini strator, Dwaine Iverson. 

Relator petitioned to intervene pursuant to Rule 24(a) (2), 

M.R.Civ.P.: 

"Intervention of right. Upon timely application 

anyone shall bepermitted to intervene in an 

action: . . . (2) when the applicant claims an 

interest relating to the property or transaction 

which is the subject of the action and he is so 

situated that the disposition of the action may 

as a practical matter impair or impede his ability to protect that interest, unless the 

applicant's interest is adequately represented 

by existing parties." 

She argued that the personal representative (then Werner) 

could not adequately represent her interests in the lawsuit 

because of his conflict in having had an attorney-client 
relationship with defendants. She alleged that she was the only 

person interested in the outcome of this lawsuit, making her the 

sole person interested in prosecuting it to completion. We find 

this position to be untenable. 

At the outset, we note that throughout this litigation, 

JoAnn Palmer has argued that Werner as personal representative 

was an improper person to handle the lawsuit, and that it should 

be handled instead by Iverson, who filed the suit initially as 

conservator. Yet at this point in the litigation, she argues 

that she should intervene because the now-appointed special administrator Iverson cannot adequately represent her interests. It 

would appear that relator is hardly in a position to argue now 

against Iverson's ability to represent her. 

Additionally, the prosecution of claims for the benefit of 

the estate is a task delegated to the personal representative of 

an estate, section 72-3-613(22), MCA, 33 C.J.S., Executors & 

Administrators §loo, and an heir does not have the right to pursue the action himself unless the personal representative fails 

to act on the claim. Holland v. Kelly (1917), 177 Cal. 507, 171 

P. 421. There is certainly no evidence before this Court that 

Iverson has failed in his duty to prosecute. 

At this point, the lawsuit is being brought to protect the 

interest of the heirs, and Rule 17(a), M.R.Civ.P, demands that 

all actions be prosecuted in the name of the real party in 

interest. But it further provides that "[an] administrator . . . may sue in his own name without joining with him the party for 

whose benefit the action is brought." This Court has previously 

discussed the purpose of this rule, noting that any other rule 

would promote a multitude of suits by heirs, resulting in hopeless confusion with respect to the prosecution of an action. 

State ex rel. Carroll v. District Court (1961), 139 Mont. 367, 

371-72, 364 P.2d 739, 741. 

This same problem was addressed in the recent Colorado 

case of In the Matter of the Estate of Scott (1978) 40 Colo.App. 
343, 577 P.2d 311. There, heirs of the decedent attempted to 

intervene, in order to appeal from an adverse ruling on a claim 

defended by the administrator. In denying intervention, the 

Colorado Court said: 

"We noted . . . that there are substantial 

problems with basing the right to intervene upon 

various questions as to how or in what manner a 

law suit should be prosecuted. When the law 

created a mechanism whereby one person as a 

representative of a group could conduct 

litigation, the purpose was the efficient, 

speedy, and orderly determination of rights 

which were held in common. For the courts to 

grant intervention to any member of a represented class who disagrees with the decisions of 

the representative, solely on that basis, would 

in our view defeat the entire purpose of representative litigation. A personal representative, under such a rule, would always be in 

danger of losing the ability to represent and 

act for the estate and might we1 1 find himself 

relegated to a position of looking on as the 

affairs of the estate became hopelessly 

entangled. It seems hardly likely that the 

General Assembly when it clothed the personal 

representative with far reaching affirmative 

powers, could have intended for his position to 

be so fragile." Estate of Scott, supra, 577 P.2d at 

313. 

That court went on to say that in determining adequacy of 

representation under Rule 24(a), the court will look to see if 

"there is a party charged by law with representing [the absent 

party's] interest. [If so,] then a compelling showing would be 

required to show why this representation is not adequate." 

Estate of Scott, supra. 

There is no question about the duty of Iverson (special 

administrator) to represent the interests of JoAnn Palmer. By 

statute, he is deemed a fiduciary, and is charged with acting in 

the best interests of the successors to the estate. Sections 

72-3-610, 72-3-701-704, MCA. If he does not so act, he is liable 

to interested persons for damages. Sect ion 72-3-616, MCA. 

See also Estate of Graf (1968), 150 Mont. 577, 580, 437 P.2d 371, 

373. 

Based on the foregoing, we find that JoAnn Palmer's 

interests are being adequately represented by parties to the 

1 awsui t. Therefore, we determine that the tri a1 judge correctly 

denied her petition to intervene. 
Chief Justice 

Me concur: 

.............................. 

Justices 
Mr. Justice John C. Sheehy dissenting: 

The majority has reached the illogical result of saying 

to JoAnn Palmer: "This is your fight, but we won't let you 

fight it." 

The true protagonists in cause no. 9346, now entitled 

"Dwaine J. Iverson, as special administrator of the Estate 

of Emma Sauter, deceased, versus Margaret and Wayne Simonson" 

are JoAnn Palmer on the one hand and the Simonsons on the 

other. While Dwaine J. Iverson is the nominal plaintiff 

suing the Simonsons on behalf of the estate, the only beneficiary if he wins, and the only loser if he loses, is JoAnn 

Palmer. The suit exists because JoAnn Palmer, one of Emma 

Sauter's heirs, argues that Margaret Simonson, the only 

other of Emma Sauter's heirs, and Wayne Simonson, took 

advantage of Emma Sauter during her lifetime to their advantage 

and the disadvantage of JoAnn Palmer. Dwaine J. Iverson, as 

special administrator, is thus suing one heir for the benefit 

of the other. Margaret Simonson, one of the heirs, can 

personally defend herself to the fullest extent. JoAnn 

Palmer, says this Court, may not personally prosecute her 

action to her fullest extent, but must rely on the efforts 

of the special administrator, even though JoAnn is now the 

vested one-half owner of the subject matter of the suit. 

Simply to state the situation is to demonstrate the error of 

the majority, for it is precluding the one person vitally 

interested in the success of the suit from personally 

litigating the issues. 

While granting that JoAnn Palmer's petition to intervene 

was denied while Wilbur Werner was the sole personal representative 

of the Sauter estate, and also granting that Dwaine J. 

Iverson was JoAnn Palmer's choice both as conservator and as 

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special administrator, I would nevertheless hold her right 

to intervene is mandated by the intent and spirit of Rule 

24 (a) (2) , M. R. Civ.P. The applicable rule reads: 

"(a) Intervention of Right. Upon timely 

application anyone shall be permitted to 

intervene in an action: 

"(2) when the applicant claims an interest 

relating to the property or transaction which 

is the subject of the action and he is so 

situated that the disposition of the action 

may as a practical matter impair or impede his 

ability to protect that interest, unless the 

applicant's interest is adequately represented 

by existing parties." 

The foregoing rule is identical to its federal counterpart a£ ter the federal amendment of 1966. Rule 24 (a) (2) , 

Fed.R.Civ.P. In a case prior to the 1966 amendment, the 

United States Supreme Court held that federal Rule 24(a) was 

not a complete inventory of interventions allowable of 

right. Missouri-Kansas Pipe Line Co. v. U.S. (1941), 312 

U.S. 502, 61 S.Ct. 666, 85 L.Ed. 975. The U.S. Supreme 

Court hewed to the same line after the 1966 amendment in 

Cascade Nat. .Gas Corp. v. El Paso Nat. Gas Co. (1967) , 386 

U.S. 129, 87 S.Ct. 932, 17 L.Ed.2d 814. In the latter case, 

instead of a rigid rule, the Supreme Court found "elasticity" 

in its provisions. 

It is beyond cavil that JoAnn Palmer's ability to 

protect her interest in cause no. 9346 will be impaired or 

impeded by the disposition eventually to be made in that 

cause. The decision will be final as to her. The only 

remaining consideration is how this Court should treat the 

language of 24(a)(2), M.R.Civ.P., "unless the applicant's 

interest is adequately represented by existing parties." 

The federal Rule 24 (a) (2) pre-1966 granted the right to 

intervene if the applicant's interest "is or may be inadequate." 
After 1966, the federal Rule, and now our Rule, omit the 

phrase "or may be." Professor Moore states: 

"In making the language conversion from an 

affirmative requirement that the representation 

'is or may be inadequate' to the exception clause 

'unless the . . . interest is adequately represented,' 

the words 'may be' have been dropped. The resulting 

meaning should, nevertheless, remain the same. That 

is, if the applicant shows that the representation 

'may be inadequate' then this showing should preclude 

the court from finding that 'the interest is adequately 

represented.' See Note, 1968 Duke L.J. 117, 129." 

3B Moore's Federal Practice 24-316, 524.09-1[4]. 

The decision of the Colorado Appellate Court in Matter 

of Estate of Scott (1978), 40 Colo.App. 343, 577 P.2d 311, 

cited by the majority, requires a closer examination in the 

light of an earlier case. In Scott, the intestate mother 

was survived by three children, and several grandchildren 

who were all the descendant of a deceased daughter of the 

intestate mother. One of the sons filed a claim for $100,000 

against the mother's estate, for work he allegedly performed 

in her cattle-ranching operation prior to her death. His 

brother, as administrator, disallowed the claim and suit was 

brought by the claimant. At the conclusion of the hearing, 

the court allowed the claim to the extent of $60,000. The 

administrator did not appeal the decision. The grandchildren 

sought to intervene for the purpose of making an appeal. It 

appears that none of the children of the decedent were 

interested in appeal. The Colorado court decided not to 

allow the intervention on the basis that the "identity of 

interest" approach showed that the administrator as defendant, 

had an identical interest with all the other heirs in the 

suit brought by one of them, stood to suffer the same gain 

or loss from the result of the suit as all the other heirs, 

including the grandchildren, and therefore, the estate was 

adequately represented, which meant that the grandchildren 

were adequately represented. 

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In an earlier case, Howlett v. Greenberg (1974), 34 

Colo.App. 356, 530 P.2d 1285, the Colorado court allowed an 

heir to intervene in a wrongful death case where a mother, 

granted an exclusive right by statute to sue, refused to 

appeal an adverse decision. The Colorado court in Scott used 

the decision in Howlett as authority for its decision in the 

Scott case. Apparently then, the Colorado court did not 

move away from its position stated in Howlett, as follows: 

"Colorado follows the rule that an applicant 

for intervention of right under C.R.C.P. 24(a) 

(2) must show both, that the representation of 

his interest by existing is or might be 

inadequate and that the applicant is or might- -- 

be - bound by the judgment in action." (Emphasis 

in original. ) 

Therefore, whatever else may be derived from the Scott 

decision, it appears that Colorado is in agreement with the 

United States Supreme Court and the better authorities that 

Rule 24(a) (2) is not a complete inventory of interventions 

as of right; and further, that in considering whether the 

intervenor-applicant is adequately represented in the pending 

suit, his petition will be granted if his representation "is 

or may be" inadequate. 

Moreover, in Scott, the Colorado Court of Appeals had 

before it an heir who was suing the estate, not another 

heir. 

There cannot be an identity of interest between JoAnn 

Palmer and the special administrator. The special administrator 

represents the estate of Emma Sauter, and in effect, he is 

representing the only heirs, JoAnn Palmer and Margaret 

Simonson. If he has a fiduciary responsibility to protect 

JoAnn Palmer, as the majority implies, he likewise has a 

fiduciary responsibility not to injure Margaret Simonson. 

He has a conflicting duty and because of that, it cannot be 

said that JoAnn Palmer is adequately represented by him. 

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In Atlantis Development Corporation v. United States 

(5th Cir. 1967), 379 F.2d 818, it was held that the amended 

federal Rule 24(a)(2), should be given retroactive application 

to the maximum extent possible, so as to incorporate the 

pre-1966 interpretation, and the Court further noted that 

federal Rule 24(a)(2) ties into the related situations of 

joinder of parties and class actions, particularly in Rule 

19, Fed.R.Civ.P. 

Rule 19, M.R.Civ.P., is identical to Rule 19, Fed.R.Civ.P. 

Those rules contain language which is identical to Rule 

24(a)(2), in that the Court under Rule 19 will make a finding 

as to whether "as a practical matter [refusal of joinder will] 

impair or impede his ability to protect that interest." 

In an earlier case, State ex rel. Drum v. District Ct. of 

Thirteenth J. D. (1976), 169 Mont. 494, 548 P.2d 1377, this 

Court refused to dismiss an action where an out-of-state 

defendant could not be joined, though the out-of-state 

defendant was a usurer that had done business in this state. 

The holding in the Drum case was contra to the spirit of 

Rule 19, as expressed in Atlantis, that the real parties in 

interest should litigate the issues. To the extent that the 

majority is rigidly applying Rule 24 in JoAnn Palmer's case, 

it is at least consistent with its holding in Drum. 

It is useful to repeat what the United States Supreme 

Court and other authorities hold in connection with Rule 

24(a)(2), that it is not a complete inventory of interventions 

allowable of right. Justice is better served when the true 

adversaries are allowed to wage the war. I recall the story 

of the woman who showed her young son Michaelangelo's statue 

of David. When she explained to the boy that the artist had 

carved the magnificent figure out of a great block of stone, 

the incredulous boy asked how the artist knew that David was 

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in there. The time is in the future when this Court will 

cut through its granitic view of the Montana Rules, and 

release the soul imprisoned therein. 

I would grant the writ to permit the intervention of 

JoAnn Palmer.