### No. 13087 INTHE 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 SeventeenthJudicial 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:

# QCP1-7igd~

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### Filed: i 

### f d:L

### No. 13088 IN

### THE SUPREME COURT OF THE 

### STATE OF MONTANA 1975

STATE OF MONTANA ex re1LOUIS HERDEGEN, 

### Relator,

DISTRICT COURT OF 

### THE SEVENTEENTH JUDICIAL DISTRICT OF THE 

### STATE OF MONTANA, INAND 

### 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:
.ktPER CURIAM: We arehere considering two cases, both concerning ehe probate of the estate of Arthur N. Fender, deceased. No. 13087 isentitled "Louis Herdegen, Appellant v. Willis EJIcI<eon, Executor, ~espondent" which 

### is an appeal from the district court of Phillips County. No. 13088 isentitled "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 thewilltorequire the district judge tohonor 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 toboth 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 isnecessary 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 forbriefing and argument."4. Willis M. IYlcI<eon, as executor, isnamed and made a respondent in this proceeding. "5. The district court isdirected 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 shallbe limited to conservation of the estateuntil final disposition of the appeal. 

### "7. SinceWillisM. FfcKeon was named executor in the

### willadmitted 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 toname him special administratorwith limited powers. "8. To expedite the appeal, since transcripts of the evidence presented atthe hearing on admission of the alleged 

### wills are available the time forbriefing 

### is shortened as follows: a) Appellant's brief tobe served and filed within 20 days from date of this order. b) ~espondent's brief tobe served and filed within 20 days from service of appellant's brief. c) Appellant's reply brief to then be served and filedwithin 

### 7 days. d) The cause

### willbe set for argument on the September Calendar of this Court. " The matter involved here isa determination of whether the first

### willof Arthur N. Fender, executed on October 12, 1972 and naming Willis McKeon as executor, or the second willexecuted 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 willexecuted by his uncle on March 18, 1975, requesting that he be named executor. This willwas filed in the district court of the seventeenthjudicial district, Phillips County and given cause No. 2759.On the following day, March 28, 1975, WillisMcKeon,
an attorney inMalta, filed inthe same court 

### a petition for probate of willof 

### A. N. Fender, executed on October 12, 1972, and requesting that he be appointed executor. That petition

### was given cause No. 2790. The two willswere identical as to the dispositiveprovisions, the only difference being the executor named. Louis Herdegen filed objections tothe probate of the 

### willofferedby FJillis McKeon on the grounds that it was not the decedent's lastwill, decedent having executed a 

### willsubsequent tothe one offered by I4cKeon. McKeon filed objections to the probate of the

### willoffered by Herdegen on the grounds that decedent acted under duress, menace, fraud orundue influence at the time of the execution of thewilland 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 todismiss the pur

### was ported contest of the willwhich 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 setboth petitions for a hearing on May 12, 1975. Testimony was taken and briefs were filed. IslcKeon was allowed to attack the validity of thewillofferedby Herdegen. Atthe hearing testimony was taken from fivewitnesses, includingMcKeon, which
was reduced towriting and made part of the court record. On June 19, 1975, the district courtjudge issued an order denying the probate of the Last Willand Testament of Arthur N. Fender, offered by Herdegen and admitted thewilloffered by McKeon, dated October 12, 1972. The trialcourt, afterHerdegen appealed to this Court filed 

### a memorandum directed tothis Court for consideration in deciding the cause. The memorandum does not amount to findings and willnot be considered. -4-Notices of appeal were filed June 

### 23, 1975 of the order denying probate of the

### willoffered by Herdegen, and the order admitting thewillof 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 tobe the failure of the district court to rule
on the Ilerdegen motion to dismiss on the basis of the factWillis NcKeon had no standing to appear and contest the willoffered by Herdegen.This issuewas decided by this Court inHillv. District Court, 126 Mont. 

### 1,4, 

### 5, 242 P.2d 

### 850. In Hilla willwas executed naming Hillthe executor. A second codicil named him executor, but under 

### a third codicil to the 

### willhe was removed as executor and one J. 

### W. Rees was named sole executor. Hillobjected to and opposed ~ees' petition for probate of the

### willand the third codicil, claiming that the testatrixwa,s incompetent when she made the third codicilnaming Rees executor. Rees demurred to Hill's objections and the demurrer was sustained for the reason that Hillwas not a "person interested" in the estatehaving legal capacity to contest or oppose the probate. Hillappealed. This Court in 

# - Hillcitedwith approval 57 Am.Jur., Wills, !j 798, pp. 541, 542:
l'Under statutes which permit the contest of willsby persons interested or claiming tobe 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 tomaintain a 

### willcontest 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 thewillof some interest of pecuniary value, worth, advantage, oruse in the estate. The mere circumstance that a person may be interested in the administration, distribution, or partition of an estate isnot sufficient ifhe willnot suffer any detriment from the 

### will. As stated, an interest in the property of the estate detrimentally affectedby the

### willis the foundation of the right to contest it."Further inHill, the Court cited In Re ~'~rien's Etate,

111Sometimes it happens that a later

### willmakes no change atallin the disposition of the testator's estate, but merely nominates a different executor. In such a case, why should the estatebe burdened by 

### willcontest 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 (Emphasis supplied). prior will."' In conclusion the Court in -7 Hill stated:

IISince if there were no 

### will, Hillwould not succeed in some degree to the decedent's estate, he isnot a person who may appear and contest thewill. "The lower court, therefore, properly sustained ~ees's demurrer. II The issuewas raised again in Estate of Maricich, 140 Mont. 319, 321, 371 P.2d 354. The Court stated:

I1The appellant initiallyraised two questions: (1) Can a named executor in a prior 

### willmaintain a willcontest of a subsequently executed will? As tothis point he concedes that this question has previously been before this court and decided adversely tohis position in State ex rel. Hillv. District Court, 126 Mont. 

### 1, 242 P. 2d 850, 31 A.L.R.2d 749, and the matter 

### isnow stare decisis 9: :; +c*tr See also Estate of French, 137 Mont. 228, 351 P.2d 548. It isclear that 1.fcICeon had no standing to appear and contest the Herdegen 

### willand Herdegen's motion to dismiss should have been granted. I.ZcKeon, in hisbrief, argues that he did not appear and contest thewilloffered by Herdegen but merely offered the earlier 

### willfor the court's consideration. We find no merit to this argument. The record clearly indicates: 1) There was a contest of the Herdegen willfiled pursuant to section 91-901, R.C.M. 1947, inwhich a trialjury was demanded.

### 2) Questiorsof factwere raised regarding the attestation of the Herdegen willby the contest. 

### 3) A properly filed motion to dismiss, together with supporting memorandums was filed, and not acted on. 

### 4) McKeon was allowed toparticipate in the proceedings. Regardless of what the May 12, 1975 hearing was called, it
was inreality a willcontest without proper procedures being followed. Herdegen 

### was denied the right tohave the issues raised by i4cKeon triedbefore a jury. The order of the district court admitting toprobate the Last Willand Testament of Arthur N. Fender, dated October 12, 1972, and appointingWillis14. TMcKeon, executor, 

### is set aside and vacated, together with the memorandum of the district court covering reasons fornot admitting the second 

### will. It 

### is ordered that the Last Willand Testament of Arthur 1iS. Fender, dated ?.larch 18, 1975, appointing Lrxlis Herdegen, executor, be admitted toprobate. It 

### is further ordered that the district court 

### willhold
a hearing to determine proper and reasonable charges for costs and fees.

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