No. 13087 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

In the Matter of the Estate of 

ARTHUR N. FENDER 

LOUIS HERDEGEN, 

Appellant, 

WILLIS McKEON, Executor, 

Respondent. 

Appeal from: District Court of the Seventeenth Judicial District, 

Honorable Thomas Dignan, Judge presiding. 

Counsel of Record : 

For Appellant : 

Burns, Solem and Mackenzie, Chinook, Montana 

William Solem argued, and Stuart C. Mackenzie 

appeared, Chinook, Montana 

For Respondent: 

Granat and Cole, Malta, Montana 

Stephen Granat argued, Malta, Montana 

Submitted: September 24, 1975 

~ecided: QCP 1-7 igd~ 

P Filed: i f d:L 
No. 13088 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

STATE OF MONTANA ex re1 LOUIS HERDEGEN, 

Relator, 

DISTRICT COURT OF THE SEVENTEENTH JUDICIAL 

DISTRICT OF THE STATE OF MONTANA, IN AND 

FOR THE COUNTY OF PHILLIPS AND THE HONORABLE 

THOMAS DIGNAN, PRESIDING JUDGE THEREOF, 

Respondents. 

ORIGINAL PROCEEDING: 

Counsel of Record : 

For Relator : 

Burns, Solem & Mackenzie, Chinook, Montana 

William M. Solem argued and Stuart C. Mackenzie 

appeared, Chinook, Montana 

For Respondents: 

Granat and Cole, Malta, Montana 

Stephen Granat argued, Malta, Montana 

Submitted: September 24, 1975 

Decided :~CTI 7 .- * -q ( 2 7 I,, , 

Filed : . kt 
PER CURIAM: 

We are here considering two cases, both concerning 

ehe probate of the estate of Arthur N. Fender, deceased. No. 

13087 is entitled "Louis Herdegen, Appellant v. Willis EJIcI<eon, 

Executor, ~espondent" which is an appeal from the district court 

of Phillips County. No. 13088 is entitled "State of Montana ex 

rel. Louis Herdegen, Relator, vs. District Court of the Seventeenth 

Judicial District of the State of Montana, In and For the County 

of Phillips and the Honorable Thomas Dignan, Presiding Judge 

Thereof, Respondent", an original proceeding in mandamus concerning 

the probate of the will to require the district judge to honor an 

affidavit of disqualification and call in another judge and to 

stay the proceedings in district court cause No. 2790, Phillips 

County, pending in that court. This Court in Cause No. 13088 on 

July 18, 1975, issued this ord.er: 

11 Counsel was heard ex parte and thereafter an 

order was issued for an adversary hearing. At 

the hearing Executor McKeon appeared by brief and 

his counsel argued. Such hearing has been had, 

briefs filed by respective counsel who also argued, 

the district judge has filed a memorandum, the 

district court files examined, and the matter taken 

under advisement. 

If There are two estate proceedings entitled alike, 

one being cause 2789, the other 2790; we apply 

this order to both cases. 

11 Having now considered the matters involved it 

appears that no purpose would be served by a 

recitation of the facts, the matter is on appeal 

and for now it is necessary to preserve the status 

quo as best that can be done and expedite the appeal 

proceedings so a final decision can be had. To this 

end the Court ORDERS: 

"I. The Court declines to issue a writ of mandate. 

I1 2. The affidavits of disqualification are ordered 

stricken. (Relator filed a notice of appeal and thereafter filed the affidavits of disqualification. Without 

extended discussion here this practice cannot be 

approved.) 

"3. Both cases heretofore referred to are consolidated on appeal for briefing and argument. 
"4. Willis M. IYlcI<eon, as executor, is named 

and made a respondent in this proceeding. 

"5. The district court is directed to enter an 

order suspending the executor's powers until the 

further order of the court. 

"6. The district court, under the emergency power 

given in section 91A-3-614, R.C.M. 1947, shall appoint 

a special administrator whose powers shall be limited to 

conservation of the estate until final disposition of the 

appeal. 

"7. Since Willis M. FfcKeon was named executor 

in the will admitted to probate but now under appeal, 

in accord with the intent of section 91A-3-615, R.C.M. 

1947, the district court is directed to name him 

special administrator with limited powers. 

"8. To expedite the appeal, since transcripts of 

the evidence presented at the hearing on admission of 

the alleged wills are available the time for briefing is 

shortened as follows: 

a) Appellant's brief to be served and filed 

within 20 days from date of this order. 

b) ~espondent's brief to be served and filed 

within 20 days from service of appellant's brief. 

c) Appellant's reply brief to then be served 

and filed within 7 days. 

d) The cause will be set for argument on the 

September Calendar of this Court. " 

The matter involved here is a determination of whether 

the first will of Arthur N. Fender, executed on October 12, 1972 

and naming Willis McKeon as executor, or the second will executed 

March 18, 1975, naming Louis Herdegen as executor, be admitted to 

probate. The record reveals these facts: 

On March 25, 1975, Arthur N. Fender died at the ranch of 

his nephew Louis Herdegen. Herdegen is the only heir living in 

Montana and had helped loolc after his uncle during his last illness. 

On March 27, 1975, Herdegen filed a petition for the probate of 

a will executed by his uncle on March 18, 1975, requesting that he 

be named executor. This will was filed in the district court of 

the seventeenth judicial district, Phillips County and given cause 

No. 2759. 
On the following day, March 28, 1975, Willis McKeon, 

an attorney in Malta, filed in the same court a petition for 

probate of will of A. N. Fender, executed on October 12, 1972, 

and requesting that he be appointed executor. That petition was 

given cause No. 2790. The two wills were identical as to the 

dispositive provisions, the only difference being the executor 

named. 

Louis Herdegen filed objections to the probate of the 

will offered by FJillis McKeon on the grounds that it was not the 

decedent's last will, decedent having executed a will subsequent 

to the one offered by I4cKeon. McKeon filed objections to the 

probate of the will offered by Herdegen on the grounds that decedent acted under duress, menace, fraud or undue influence at 

the time of the execution of the will and further upon the grounds 

that the instrument was not duly or properly executed and attested as 

required by the laws of Montana. 

Thereafter Herdegen filed a motion to dismiss the purwas 

ported contest of the will which heloffering for probate on the 

11 grounds that McKeon was not a person interested" within the meaning 

of section 91-810, R.C.M. 1947, and therefore lacked standing to 

contest such will. The district court never ruled on this motion, 

but proceeded to set both petitions for a hearing on May 12, 1975. 

Testimony was taken and briefs were filed. IslcKeon was allowed to 

attack the validity of the will offered by Herdegen. At the hearing 

testimony was taken from five witnesses, including McKeon, which 

was reduced to writing and made part of the court record. 

On June 19, 1975, the district court judge issued an 

order denying the probate of the Last Will and Testament of Arthur 

N. Fender, offered by Herdegen and admitted the will offered by 

McKeon, dated October 12, 1972. 

The trial court, after Herdegen appealed to this Court 

filed a memorandum directed to this Court for consideration in 

deciding the cause. The memorandum does not amount to findings and 

will not be considered. 

-4- 
Notices of appeal were filed June 23, 1975 of the order 

denying probate of the will offered by Herdegen, and the order admitting the will of October 12, 1972, to probate and appointment of 

Willis McKeon as executor. 

Several issues were set forth and argued but we find the 

controlling issue to be the failure of the district court to rule 

on the Ilerdegen motion to dismiss on the basis of the fact Willis 

NcKeon had no standing to appear and contest the will offered by 

Herdegen. 

This issue was decided by this Court in Hill v. District 

Court, 126 Mont. 1, 4, 5, 242 P.2d 850. In Hill a will was 

executed naming Hill the executor. A second codicil named him 

executor, but under a third codicil to the will he was removed as 

executor and one J. W. Rees was named sole executor. Hill objected 

to and opposed ~ees' petition for probate of the will and the 

third codicil, claiming that the testatrix wa,s incompetent when 

she made the third codicil naming Rees executor. Rees demurred to 

Hill's objections and the demurrer was sustained for the reason 

that Hill was not a "person interested" in the estate having legal 

capacity to contest or oppose the probate. Hill appealed. 

This Court in - Hill cited with approval 57 Am.Jur., Wills, 

!j 798, pp. 541, 542: 

l' Under statutes which permit the contest of wills by 

persons interested or claiming to be interested in the 

decedent's estate, the general rule is that a contestant 

must have some pecuniary or beneficial interest in the 

estate of the decedent that is detrimentally affected by 

the will. Although the right to maintain a will contest 

does not depend upon the extent or proportion of the 

contestant's share in the decedent's estate, or the 

amount of the detriment suffered by the contestant, it 

does depend upon the fact that the contestant may be 

deprived by the will of some interest of pecuniary value, 

worth, advantage, or use in the estate. The mere circumstance that a person may be interested in the administration, distribution, or partition of an estate is not 

sufficient if he will not suffer any detriment from the 

will. As stated, an interest in the property of the 

estate detrimentally affected by the will is the foundation of the right to contest it." 
Further in Hill, the Court cited In Re ~'~rien's Etate, 

11 1 Sometimes it happens that a later will makes no 

change at all in the disposition of the testator's 

estate, but merely nominates a different executor. 

In such a case, why should the estate be burdened 

by will contest proceedings for the sole purpose of 

determining which of the two rival claimants should 

be permitted to act as executor? 

"'1t is our conclusion -. that - ;k 9; " - the weight of authority ..... and the better reasoning ... favor ., the rule that a 

contest cannot T - .. be initiated by an execu~or named in a 

prior will. "' (Emphasis supplied). 

In conclusion the Court in -7 Hill stated: 

I I Since if there were no will, Hill would not succeed 

in some degree to the decedent's estate, he is not a 

person who may appear and contest the will. 

"The lower court, therefore, properly sustained ~ees's 

demurrer. I I 

The issue was raised again in Estate of Maricich, 140 Mont. 

319, 321, 371 P.2d 354. The Court stated: 

I 1 The appellant initially raised two questions: 

(1) Can a named executor in a prior will maintain 

a will contest of a subsequently executed will? 

As to this point he concedes that this question has 

previously been before this court and decided adversely to his position in State ex rel. Hill v. 

District Court, 126 Mont. 1, 242 P. 2d 850, 31 

A.L.R.2d 749, and the matter is now stare decisis 

9: :; +c*tr 

See also Estate of French, 137 Mont. 228, 351 P.2d 548. 

It is clear that 1.fcICeon had no standing to appear and 

contest the Herdegen will and Herdegen's motion to dismiss should 

have been granted. 

I.ZcKeon, in his brief, argues that he did not appear and 

contest the will offered by Herdegen but merely offered the earlier 

will for the court's consideration. We find no merit to this 

argument. The record clearly indicates: 

1) There was a contest of the Herdegen will filed 

pursuant to section 91-901, R.C.M. 1947, in which a trial jury was 

demanded. 
2) Questiors of fact were raised regarding the attestation of the Herdegen will by the contest. 

3) A properly filed motion to dismiss, together with 

supporting memorandums was filed, and not acted on. 

4) McKeon was allowed to participate in the proceedings. 

Regardless of what the May 12, 1975 hearing was called, it 

was in reality a will contest without proper procedures being 

followed. Herdegen was denied the right to have the issues raised 

by i4cKeon tried before a jury. 

The order of the district court admitting to probate the 

Last Will and Testament of Arthur N. Fender, dated October 12, 1972, 

and appointing Willis 14. TMcKeon, executor, is set aside and vacated, 

together with the memorandum of the district court covering reasons 

for not admitting the second will. 

It is ordered that the Last Will and Testament of Arthur 

1iS. Fender, dated ?.larch 18, 1975, appointing Lrxlis Herdegen, executor, 

be admitted to probate. 

It is further ordered that the district court will hold 

a hearing to determine proper and reasonable charges for costs 

and fees. 

Mr. Chief Justice James T. Harrison took no part in 

this opinion.