NO. 88-277 

IN THE SIJPREME COURT OF THE STATE OF MONTANA 

1989 

IN THE MATTER OF THE ESTATE OF 

ROBERT E. STONE, deceased. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Madison, 

The Honorable Frank Davis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

David N. Niklas, Helena, Montana 

C. Bruce Loble, Hel.ena, Montana 

For Respondent: 

DavFd A. Grauman; Jardine and Grauman, Whitehall, 

Montana 

Submitted on Briefs: Dec. 9, 1988 

3 

LC 0 

If: 

Decided: January 27, 1989 
Mr. Justice R. C. McDonough delivered the Opinion of the 

Court. 

This appeal involves a dispute over fees awarded to the 

personal representative of an estate who was removed for 

cause. Petitioners Sherrie Schandelmeier and Sam Wonderly, 

successor co-personal representatives of the Estate of Robert 

Emerson Stone, appeal from an order of the District Court of 

the Fifth Judicial District, Madison County. On remand from 

a previous appeal to this Court, the District Court was 

instructed to remove R. Thomas Garrison as personal 

representative of the Estate and determine the fee due 

Garrison for his services. The court ordered: (1) Garrison 

is entitled to $20,000 for services rendered as personal 

representative and attorney for the Estate, and any amount 

previously paid to him in excess of that sum must be 

reimbursed; (2) Garrison is entitled to $3,814 to pay for the 

services of an attorney in resisting his removal as personal 

representative; and (3) Garrison must pay the Estate $15,000 

as his contribution to lost interest and tax penalties 

occasioned by his administration. We reverse and remand. 

Petitioners present four issues in this appeal: 

1. Whether the prior personal representative and 

attorney for the Robert Emerson Stone Estate was entitled to 

combined fees of $20,000, as allowed by the District Court? 

2. Whether it was proper for the District Court to allow 

payment of $3,814 in Estate funds to the attorney for the 

former personal representative for his services in the 

removal litigation? 

3. Whether the District Court, after hearing objections 

to the Accountinq of the prior personal representative, 

should have made a determination of damages to the Estate 
instead of merely ruling on the proper amount of attorney's 

fees and personal representative's fees? 

4. If the ruling on the issue of damages was within the 

scope of the hearing, whether the amount of damages awarded 

was sufficient? 

The facts of this case were discussed in our prior 

opinion, Matter of Estate of Stone (Mont. 1986), 727 P.2d 

508, 43 St.Rep. 1760. They will be reiterated here only 

where relevant. Our instructions on remand directed the 

District Court to remove Garrison and determine his fees. 

Once removed by the court, Garrison submitted his Final 

Account of all receipts and disbursements during his 

administration of the Estate. Petitioners filed an objection 

to the Final Account, objecting specifically to the fees 

Garrison paid himself as personal representative and attorney 

for the Estate, and to the fees paid to a law firm Garrison 

employed to defend him in the removal suit. 

Petitioners contended that Garrison was not entitled to 

a fee, because his administration was harmful to the Estate. 

They also contended that Garrison's decision to resist 

removal was not made in good faith, and he was therefore not 

entitled to pay his attorneys out of Estate funds. Garrison 

had paid himself a total of $26,515 for his services as 

personal representative and attorney for the Estate. After 

hearing was had on Petitioners' objections to the Final 

Account, the District Court reduced that fee to $20,000, and 

Petitioners appealed. 

The fees challenged by Petitioners are outlined by 

sections of the Uniform Probate Code as adopted in Montana. 

The personal representative's fee is covered in 5 72-3-631, 

MCA, which sets a maximum based on the size of the estate, 

and directs that in any case the fee shall he "reasonable." 
Section 72-3-633, MCA, states that the fee for an attorney 

engaged by the estate shall not exceed I+ times the 

compensation allowed the personal representative. Section 

72-3-632, MCA, deals more explicitly with litigation expenses 

incurred by the personal representative on behalf of the 

estate, and allows for a "reasonable" attorney's fee for 

actions maintained in good faith. 

Section 72-3-634, MCA, allows any person with an 

interest in the estate to petition for review of fees paid to 

a personal representative, attorney or other person rendering 

services to the estate. The comments to the Uniform Probate 

Code written by the Code Commission state that one important 

feature of the UPC is that a personal representative has 

initial control over fees paid for services to the estate, 

including his own fee. Formerly, fees were set by the 

probate court. Because the personal representative would 

control the "purse strings" of the estate and essentially pay 

himself, the drafters of the UPC Felt it important to allow 

for review of those fees. 

This Court has not yet had the opportunity to define a 

standard of review for cases of this type. However, because 

the UPC is a uniform act, we can look to decisions from other 

jurisdictions utilizing the same statutory scheme. 

The review of fees paid or taken by a personal 

representative is left to the sound discretion of the 

District Court. We will not overturn that decision absent a 

showing of abuse of discretion, and the court's findings of 

fact will be upheld unless clearly erroneous. Estate of 

Davis (Me. 1986), 509 A.2d 1175; Matter of Estate of Baird 

(Mich. 1984), 357 N.W.2d 912. 

Once review of a fee is sought by one with an interest 

in the estate, the personal representative has the burden of 
proving that the services rendered were necessary, and the 

fee charged was reasonable. Baird; Matter of Estate of 

Vertin (N.D. 1986), 381 N.W.2d 199. With regard to legal 

services, a reasonable fee should be ascertained by 

considering the time spent, the nature of the service, and 

the skill and experience required. Matter of Weaver's Estate 

(Mich. App. 1982), 327 N.W.2d 366. A crucial factor for 

determining the reasonableness of any challenged fee is 

whether the services rendered were beneficial to the estate. 

Matter of Kjorvstad's Estates (N.D. 1980), 287 N.W.2d 465. 

We agree with the view taken by the courts of the State of 

Michigan that when a personal representative's negligence 

causes harm to the estate, he or she may be deprived of all 

or part of their fee. Matter of Estate of Thacker (Mich. 

App. 1984), 358 N.W.2d 342. 

In the present case, petitioner Sherrie Schandelmeier is 

one of the devisees under the will, and therefore certainly 

has an interest in the Estate. Petitioners' objection to the 

Final Account challenged the fees taken by Garrison and those 

paid to his attorney, thereby requiring a review of those 

fees under 72-3-634, MCA. The burden was therefore upon 

Garrison to show that the fees paid to himself and to his 

attorney were reasonable, and were for the purpose of 

obtaining necessary services for the Estate. The record 

indicates that he failed to do so. 

Beyond submission of the Final Account, which merely 

lists the Estate ' s income and expenditures, Garrison adduced 

virtually no evidence concerning the reasonableness of the 

fees. While there is some evidence from the initial removal 

hearing showing Garrison's work product, he has made no 

attempt to show the value of those services to the Estate or 

their relation to the fees he took. Under cross-examination 
by counsel for Petitioners, Garrison testified that he kept 

no time logs of his activities as either personal. 

representative or attorney for the Estate, and was able to 

give only a very rough estimate of the time he devoted to 

these tasks. 

Garrison's argument for his entitlement to the fees he 

charged rests on the premise that they were "the standard 

amounts that are allowed." This is fundamentally incorrect. 

Sections 72-3-631 and 72-3-633, MCA, provide that fees for 

personal representatives or attorneys shall - not exceed 

certain amounts based on the size of the estate. Garrison 

took not a standard fee, but the maximum fee under each 

section. Given Garrison's removal for cause and his nearly 

complete failure to justify his fees when challenged, the 

record is patently insufficient to support the District 

Court's award. 

In our previous opinion, we held that Garrison should be 

removed as personal representative and attorney for the 

Estate because of shortcomings in the discharge of his 

duties: 

1. Failure to invest excess Estate monies in an 

interest-bearing account. &. -l Failure to pay any portion of Montana 

inheritance tax due when Estate monies were 

available to do so. 

3. Failure to file the Estate's inventorv and 

appraisement for over four years after his 

appointment as personal representative. 

4. Active misleading of a devisee concerning the 

disposition of the main Estate asset. 

The present record also demonstrates a remarkable failure by 

Garrison to complete his work properly, and a nearly complete 

failure to do so in a timely fashion. Simple arithmetic 

indicates that Garrison's failure to invest Estate monies 
resulted in lost interest, and his failure to pay taxes 

completely or in part resulted in the imposition of penalties 

and the accrual of interest on unpaid amounts. These 

failures alone brought calculable harm to the Estate, which 

calls for reduction or even elimination of Garrison's fee. 

As to the fees paid to Garrison's attorney, under 5 

72-3-632, MCA, such fees are to be reimbursed only if they 

were incurred in an action pursued in good faith. The 

District Court's ruling on these fees was based on Finding of 

Fact No. 7, which states that Garrison was obligated to 

resist removal under the decedent's will. We find no such 

language in the will, and hold this finding to be clearly 

erroneous. 

R.T. Garrison was sufficiently remiss in performing his 

duties as personal representative and attorney for the Estate 

of Robert E. Stone that he was removed for cause. He failed 

to present meaningful evidence to justify the fees he paid 

himself when those fees were challenged. The fees he claimed 

for the services of an attorney in resisting removal were 

allowed on the basis of a finding of fact that is clearly 

erroneous. On this record, the District Court's award of 

$20,000 was a manifest abuse of discretion. 

The award of $15,000 to the Estate as "reimbursement" 

for tax penalties and interest was also inappropriate. The 

objection filed by Petitioners sought review of Garrison's 

fee, but did not mention any liability that might be imposed 

for his actions. The court did not have issue jurisdiction 

on the question of Garrison's liability for his actions, 

because that issue was not placed before the court in the 

pleadings. The award of "reimbursement" was therefore error. 

See, In re Marriage of DiPasquale (Mont. 1986), 716 P.2d 223, 

43 St.Rep. 557. 
We reverse the decision of the District Court as clearly 

erroneous and an abuse of discretion, and remand for retrial 

of the fee dispute. 

Reversed and remand.&. 

We concur: A 

u 

Justice