NO. 89-084 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

IN THE MATTER OF THE ESTATE OF 

GERALD W. BARBER, Deceased. 

-- . 

APPEAL FROM: District Court of the Tenth ~udicial ~istrict, 

In and for the County of Fergus, 

The Honorable Peter Rapkoch, Judge presiding. 

COUNSEL OF RECORD: 

Filed: 

For Appellant: 

~hillip R. McGimpsey, Billings, Montana 

For Respondent: 

Donald E. ~onish, ~ewistown, Montana 

submitted on briefs: June 8, 1989 

Decided: September 14, 1989 

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

Court. 

Jerry F. Barber, Barbara A. Snooks and Ted L. Barber, 

the children of the decedent, Gerald W. Barber, appeal from 

an order of the ~istrict Court, Tenth ~udicial ~istrict, 

Fergus County, approving and settling the final account of 

the personal representative, Margaret A. Barber, and 

directing distribution of the estate of the decedent. 

The personal representative, Margaret A. Barber, appeals 

from the same order of the District Court denying further 

attorney fees for extraordinary services rendered in the 

administration of the estate. 

We affirm the order of the District Court insofar as it 

approves the final account of the personal representative and 

orders distribution of the estate; and reverse the portion of 

the order denying attorneys fees for extraordinary services 

for the reasons hereafter stated. 

The three appellants here (for want of a better term, 

hereafter "Objectors") are children of the decedent Gerald W. 

Barber by a former marriage. The personal representative, 

Margaret Barber, is the widow of the decedent. 

-- The Will 

Gerald W. Barber was a long-time farmer in the Denton 

area. He died testate on December 4, 1982. At the time of 

his execution of the will he was competent. 

On September 16, 1982, the decedent conveyed to his 

wife, Margaret Barber, 640 acres of his farm, which he 

considered and treated as one-fourth of his farm holdings. 

On the same day but after the conveyance to his wife, he 

executed his last will and testament. His will directed that 
if his other rural property, which included his interest in 

the farm, should be sold during his life or during probate of 

his estate, the payments thereof would be divided among his 

heirs as follows: 

One-fourth to his wife for the 640 acres he had 

deeded to her that day; three-eighths to his 

children; three-eighths to his wife for life or 

until she remarried, and the remainder to his 

children. 

However, because of matters which occurred during the 

probate of the estate, hereafter detailed, at the tine of the 

petition for distribution of the estate, except for joint 

tenancies, and specifically devised property, the residue of 

the estate was to be distributed one-half to the widow, and 

one-half to the surviving children. 

--- The Farm Sale 

Pertinent to the disposition of this case is an 

understanding of the sale of the decedent's farm lands, and 

what occurred respecting the sale contract in the 

administration of the estate. 

On October 18, 1982, the decedent and his wife, Margaret 

Barber, entered into a contract for deed to sell the farm 

holdings to Russell E. Senef and ~hyliss L. Senef, for 

$1,100,000.00. The real property to be transferred under the 

sale included the 640 acre parcel which decedent had earlier 

deeded to Margaret A. Barber. The down payment by the Senefs 

to Barber for the farm property included cash in the net 

amount of $71,215.00 and 560 acres of land transferred from 

Senef to the decedent Barber. The decedent deposited the 

down payment in a joint bank account with his wife, Margaret 

Barber, and used some of the proceeds to purchase a single 

premium annuity of which his wife was the owner. 
When the decedent died on December 4, 1982, the balance 

due on the contract became an asset of the estate, and 

subject to the terms of the will. 

On November 25, 1986, while the estate was in progress, 

Margaret Barber, as personal representative of the estate, 

petitioned the District Court for approval of an offer from 

the buyers under the contract for a full and final payment by 

the purchasers of $745,794.56. The principal balance on the 

contract then was $836,960.49. The 1985 payment had been 

deferred, and accrued interest to the time of the petition 

for approval brought the total due to $994,392.75. Over the 

stiff opposition of the objectors, the District Court on 

December 29, 1986, approved the acceptance of the offer. The 

factors which led the court to approval will be discussed 

later in this opinion. 

The Final Account(s) and petition for ~istribution 

On January 20, 1987, the personal representative filed 

her first and final account, petition to fix attorneys fees, 

and for distribution, and a hearing thereon was duly noticed 

by the court. On February 18, 1987, the personal 

representative filed a supplemental account, to report an 

additional $589.64 in interest. On July 9, 1987, the 

personal representative filed a further supplemental account 

to report interest accrued since the date of the first 

account. In the meantime, the objectors had requested and 

obtained discovery and eventually the District Court held its 

hearing on the accounts on July 9 and 10, 1987. 

On January 12, 1988, the court issued an order settling 

and approving the first and final account as supplemented by 

the personal representative. That order also included 

provisions for distribution of the decedent's estate. This 

order was appealed by the objectors to the Montana Supreme 
Court under its Cause. No. 88-230 which appeal was dismissed 

by this Court on January 10, 1989. 

On August 8, 1988, the personal representative filed a 

"Current Account and Petition to Fix Fees" which reported 

changes in the financial status of the estate after July 8, 

1987. Included in the disbursements were three items, a 

payment to Margaret A. Barber as personal representative of 

$7,500.00 as part of her fee for representing the estate; 

further payment to Margaret A. Barber in the sum of $12,000 

as part of the principal on loans she had made to the estate; 

and a payment of $12,000.00 to Donald E. ~onish, as part of 

his attorney fee in the estate. A hearing was held on August 

30, 1988, on the opposition of the Objectors to the account 

as supplemented and on December 14, 1988, the ~istrict Court 

issued its order approving "the current account, and actions, 

proceedings done and conducted in this estate by the personal 

representative, attorney and accountants." The Court also 

denied additional attorney fees for legal services and 

ordered the personal representative to distribute the balance 

of the estate to the heirs and beneficiaries as petitioned in 

the final account. 

The notice of appeal filed by the Objectors which brings 

the case to this Court recites that it is an appeal from the 

order of December 14, 1988, of the District Court. 

Jurisdiction 

Before we proceed to a discussion of the other issues 

raised in the case, we will first regard the issue of 

jurisdiction raised by the personal representative, Margaret 

Barber. 

The personal representative first contends that this 

Court has no jurisdiction to consider matters handled during 

the administration of the estate that are not included in the 

order of December 14, 1988, issued by the ~istrict Court. 
The contention of the personal representative is that the 

order of the ~istrict Court on January 12, 1988, settling and 

approving the first and final account was itself an 

appealable order, and since no appeal was made by the 

Objectors from that order, the issues that relate to that 

order cannot be considered on this appeal. The District 

Court had considered this issue and decided that the matters 

involving the prior accounting were merged in the final 

account and that the court had jurisdiction. 

The District Court is given broad jurisdictional powers 

in the handling of probates. It has exclusive jurisdiction 

of all probate matters. section 72-3-111, MCA. In any 

supervised administration (by order of the District Court 

this particular estate was a supervised administration), the 

court is given "continuing authority" in a single in rem 

proceeding to secure complete administration until the entry 

of an order approving distribution of the estate and 

discharging the personal representative. Section 72-3-401, 

MCA. Moreover, the several accountings filed in the estate 

proceedings by the personal representative in this case were 

a continuing report to the court as a first and final 

accounting for the purpose of obtaining authority for 

distribution under $ 72-3-101, MCA. A final accounting is 

required to close an estate, whether it be supervised or not. 

Section 72-3-1005, MCA. Unless otherwise ordered by the 

court, a supervised administration may only be terminated by 

an order of the court with the time restrictions, notices and 

contents of orders as for other probates set forth in S; 

72-3-406, MCA. We therefore hold that all of the matters 

contested by the Objectors are merged, so that the order of 

the District Court of January 12, 1988, settling and 

approving the account, and the order of December 14, 1988 
also approving the final account are to be treated as one 

order for the purpose of determining the right to appeal. 

A second jurisdictional argument raised by the personal 

representative is that there was no issue jurisdiction before 

the District Court and before us, because no written 

objections were filed by the Objectors to any of the 

accountings made by the personal representative. Without 

pleadings, the personal representative argues, no issues were 

defined, and without issues there is nothing on which an 

appeal can be based. 

The provisions of the Uniform Probate Code as adopted in 

Montana do not provide for the filing of written objections 

by Objectors to an accounting by a personal representative. 

Section 72-3-1001, MCA, provides that in a formal proceedings 

(which includes supervised administration under 5 72-3-406) 

the petition may request the court to consider the final 

accounting and approve the same. section 72-3-1001, MCA, 

also provides that after notice to all interested persons and 

hearing, the court may enter appropriate orders. Section 

72-3-1005, MCA, requires a final accounting before an estate 

may be finally closed. When notice is required under the 

Uniform Probate Code, it must be given in conformity with 5 

72-1-301, MCA, which notice makes the subject of the order 

binding as to all persons given notice of the proceedings. 

Section 72-3-111, MCA. 

with respect to the accountings here, the ~bjectors, 

after due notice given, appeared at the times of the hearings 

(but only by counsel at the August 30, 1988 hearing) and 

examined witnesses produced by the personal representative, 

and by themselves. In subsequent briefs provided to the 

District Court, the Objectors set forth their contentions 

with respect to the proposed accountings and distribution. 

Thus the situation relating to issues raised by Objectors in 
a probate proceeding is much the same as issues raised by any 

appellants in this Court. The notice of appeal in the 

appellate case simply vests this Court with jurisdiction. 

Thereafter, the issues are defined by those stated in the 

appellant's brief, provided that the issues were also 

presented to the District Court. Since we have no other 

statutory authority in the matter, and it appears otherwise 

proper, we will consider the issues raised by the Objectors 

in their various briefs before the District Court as the 

issues for consideration by us. In like manner, as to issues 

not raised before the District Court and now raised on appeal 

(there are some) we will follow the usual appellate rule that 

unless the issue is raised and considered before the District 

Court, it cannot be considered by us on appeal. We hold 

therefore that there is issue jurisdiction both before the 

District Court and before us. 

Objectors' Issues 

Having said the foregoing, we find that the issues 

raised by the Objectors here are somewhat difficult to 

define. The issues on appeal are stated generally by the 

Objectors as follows: 

1. id the District Court err and abuse its 

discretion by allowing the August 5, 1988 final 

account of the personal representative, Margaret A. 

Barber, to be settled, allowed and approved? 

2. considering the nature and the scope of the 

August 30, 1988, hearing, together with the 

multitude of unresolved estate tax and income tax 

issues, did the ~istrict Court err and abuse its 

discretion by confirming and approving as correct 

and proper all of the actions and proceedings done 

and conducted in the estate of Gerald W. Barber by 

the personal representative, the estate's attorney, 

and the estate's accountants? 

The general statements of issues foregoing do little to 

inform the Court with specificity of the contentions of the 
Objectors. We are committed, however, by § 3-2-204(5), MCA, 

in all equity cases or proceedings of an equitable nature to 

review all questions of fact arising upon the evidence 

presented in the record, and to determine the same as well as 

to questions of law. With that statute in mind, we proceed 

to consider the issues we find raised in the record. 

Abatement Proportions 

In its order of January 12, 1988, the District Court 

concluded that interest earned during the probate be 

apportioned one-half to the widow and one-half to the 

Objectors. (Note: This proportion does not offend the 

provisions of the will; it will be explained in the 

discussion below of the payoff on the contract for sale.) 

The ~istrict Court at the same time concluded that the 

proportional value of the specific devises for abatement 

purposes would be 55.387 percent for the children (Objectors) 

and 44.613 percent to the widow (personal representative). 

Objectors contend on appeal that the latter ruling 

constituted an "accounting virus" and carried through to the 

rest of the accountings. They contend that the accountings 

failed to conform to the statutory requirements of §§ 

72-25-403, 72-25-404, 72-25-497, and 72-25-411, MCA. Thus, 

the appellants' brief reads, "The personal representative and 

her legion of professional advisers have failed to take all 

steps reasonably necessary for the management, protection and 

preservation of the estate in their possession." What the 

Objectors' appellate brief does not reveal is how the 

accountings do not conform to statutory requirements or how 

they abuse the personal representative's duty of management, 

protection and preservation of the estate. 

The District Court found that the abatement statute, § 

72-3-901, MCA, applied because the residue of the estate and 

the interest accrued was insufficient to pay all expenses and 
disbursements. The District Court utilized the values of 

specifically devised property as between the widow on one 

hand and the Objectors on the other to determine those 

proportions to be 55.387 percent for the children, and 44.613 

percent for the widow. 

Section 72-3-901(2), MCA, provides that abatement within 

these classifications "is in proportion to the amounts of 

property each of the beneficiaries would have received if 

full distribution of the property had been made in accordance 

with the terms of the will." It appears that the ~istrict 

Court followed this statute in determining the proportions 

for abatement. The Objectors do not show us in any 

particular that the proportions were wrongly computed. 

We are unable to fathom how the accountings do not 

conform to the statutory requirements of §§ 72-25-403, -404, 

-407, and -411, MCA. These statutes are part of the Revised 

Uniform Principal and Income Act, applying to estates, 

trusts, and fiduciary relationships. Section 72-25-404, MCA, 

provides that in estates, as far as specific legatees are 

concerned they shall receive the income from the property 

bequeathed or devised to them respectively, less taxes and 

ordinary expenses of the estate; and as to all other legatees 

and devisees, the balance of the income, less taxes and 

ordinary expenses of management in proportion to their 

respective interests in the undistributed assets. In this 

case, the District Court, by providing that all interest 

shall be divided one-half to the widow and one-half to the 

children, determined that the interest earned from estate 

bank accounts should be distributed in accordance with the 

proportional interest in the residue estate, one-half to the 

widow, and one-half to the children. The apportionment of 

income is therefore in accordance with 5 72-25-404, MCA. The 

apportionment of abatement is in accordance with 5 72-3-901, 
MCA. These statutes relate to two different subjects and, as 

in this case, do not necessarily coincide. We uphold the 

proportions decided by the District Court. 

The testimony in the case showed that the estate 

computed the interest earned during the probate based on the 

money that came in from specific bequests, property and the 

interest earned thereon. The money from the property 

specifically devised for the widow exceeded by some $7,000.00 

the money which came from the property specifically devised 

to the Objectors. There were no countervailing computations 

made by the Objectors. 

As an aside, we note that the provisions of the revised 

uniform Interest and Income Act were not raised in the 

District Court and are raised for the first time on appeal. 

Payment -- of Fees; Repayment of Loans - 

On December 30, 1987, the personal representative paid 

out of funds of the estate $7,500.00 to herself as part of 

her personal representative fee; $12,000.00 to herself as 

part of the principal of loans she had made to the estate; 

and $12,000.00 to Donald E. ~onish as a part of his claimed 

attorneys fee. 

At the July 9-10, 1987 hearing, the Objectors challenged 

the subject of undocumented loans by Margaret Barber to the 

estate, and challenged the appropriateness of fees and 

expenses charged by both the personal representative and the 

estate's attorney. The District Court did not enter its 

first order approving the final report of the personal 

representative until January 12, 1988. Thus, the objectors 

now contend that the payments were improper without the prior 

approval of the court, and that the payments constituted a 

distribution of the estate to Margaret Barber, which 

represented a conflict of interest, self-dealing, and "just 

plain selfishness," and a violation of the estate attorney's 
duty to avoid self-serving conduct. The appellants' brief 

points to the admission of the estate attorney that he had 

procured the payment to himself in order to accomplish his 

personal income tax plan for 1987. 

In the District Court's order of December 14, 1988, it 

held that the payments to the estate's attorney and the 

personal representative of the respected fees were merely 

payments to creditors of the estate and were approved. 

There isn't any doubt in this case that the personal 

representative, the widow of the decedent, made loans to the 

estate. The loans were necessary because the payments on the 

farm contract were not coming in, federal and state taxes had 

to be paid, and other expenses made the loans necessary. The 

District Court eventually found that she had made loans 

totalling $14,633.00 to the estate, and that she was entitled 

on those loans to receive interest of $4,730.15 to February 

1, 1987, plus $4.01 per day thereafter until paid. 

Objectors contend that because this was a supervised 

administration, such payments should not have been made 

without a prior order from the ~istrict Court. The personal 

representative, however, in a supervised administration is 

not so restricted. Section 72-3-404, MCA, provides that a 

supervised personal representative has, without interim 

orders approving the exercise of a power, all powers of 

personal representatives under the code, except that a 

personal representative may not make a distribution of the 

estate without the prior order of the court. As the personal 

representative in brief points out, under S 72-3-613 (18) , 

MCA, the personal representative has the power to pay her own 

compensation and other expenses incident to the 

administration of the estate; under subsection (26) of the 

same statute, the personal representative has the power to 

satisfy and sett1.e claims. Section 72-1-103(4), MCA, states 
that "claims" include liabilities of the estate and "expenses 

of the administration." The loans were liabilities of the 

estate which arose after the death of the decedent, and the 

personal representative fees and attorney fees are expenses 

of administration. The personal representative has statutory 

power to pay these amounts without a prior order of the 

court. Without burdening this opinion with figures, we 

determine that the compensation of the personal 

representative eventually allowed by the court was well 

within the limits prescribed in S 72-3-631, MCA, and that the 

compensation of the attorney so approved, was within the 

limits set out in 5 72-3-633, MCA. The part payment of those 

fees on December 30, 1987, was not improper in this case. 

We do not find any conflict of interest or violation of 

ethics by either the personal representative or the attorney. 

In each case the partial payments were far less than the 

amounts that they were eventually entitled to, the payments 

did not affect in any way adversely the administration of the 

estate, and were just claims against the estate for which 

there was a right of eventual payment in full. In fact, such 

expenses of administration enjoy a first priority to the 

assets of the estate. Section 72-3-807, MCA. 

The appellants' brief characterizes the payments to the 

personal representative and to the estate's attorney as 

"knowing, flagrant acts of conflict of interest, self-dealing 

and arrogant selfishness," but there is absolutely no 

substance to such charges. 

Settling the Personal Representative's Final Accounts 

The next contention of the Objectors is that the 

District Court erred in concluding that "all acts and 

proceedings done or conducted in this estate by the personal 

representative, the attorney and accountants were correct and 

proper in the same are hereby confirmed and approved." 
Objectors also contend that the District Court should not 

have approved the final accounts of the personal 

representative before ascertaining that the Federal Internal 

Revenue Code was complied with. 

The Objectors shotgunned twelve claimed issues under 

this caption, which we will take up separately: 

(1) Whether the estate erred and violated the Federal 

Internal Revenue Code by reporting that the estate was 

terminated as of December 31, 1986, when there were still 

monies to be distributed to the estate's beneficiaries. 

When the Senef contract was paid off during the probate 

of the estate, the personal representative had on hand 

$745,794.56 of which $660,000.00 was allocated to principal, 

and the balance to interest income. The contract was a 

principal asset of the estate and when the payoff was 

received, distribution of part of the major assets was 

possible. 

The money received on the Senef contract represented an 

85.8 percent capital gain to the estate. The federal tax 

laws were substantially changed with respect to capital 

gains, taking effect in 1987. By distributing the proceeds 

of the Senef sale before December 31, 1986, the estate was 

able to take advantage of the 60 percent deduction allowed 

for capital gains up to December 31, 1986 with the balance 

taxable at 20 percent. The attorney for the estate estimated 

that if the distribution occurred after December 31, 1986, 

under the change relating to capital gains in tax laws, an 

additional substantial amount in federal taxes would be owed 

by the estate. 

In addition, it was the intention of the personal 

representative and the estate attorney to distribute the 

remaining 15 percent of the estate assets within 65 days from 

December 31, 1986, which under federal regulations could be 
construed as having been distributed before December 31, 

1986. The objections of the Objectors made use of the 65 day 

rule impossible. 

Federal regulations prohibit unduly prolonging estate 

proceedings for federal income tax purposes and the estate 

will be deemed closed for that purpose after expiration of a 

reasonable time for completion of administration and when all 

property is distributed except a reasonable amount set aside 

in good faith for payment of unascertained or contingent 

liabilities and expenses. I. R. S. Regulations, section 1. 

641 (b) -3 (a) . Under Montana law, an estate shall be closed within two 

years of the date of the appointment of the personal 

representative. Section 72-3-1015, MCA. At the time when 

this estate was closed for income tax purposes, the estate 

had been in probate for more than four years. By the end of 

1986, all income producing property had been distributed and 

the amount held back by the personal representative was that 

amount adjudged necessary to pay the remaining expenses of 

the estate. 

Counsel for the Objectors contends that after December 

29, 1986, there was money in the estate that was ultimately 

distributed to the estate's beneficiaries. It contends 

therefore the estate was not terminated for tax purposes as 

of December 31, 1986, which would result in a shift of 

$660,000.00 of taxable income from 1986 to 1987. This 

contention is completely unexplained or supported by any 

authority from counsel for the Objectors. 

(2) Whether the Internal Revenue service form 1041s 

filed on behalf of the estate of Gerald W. Barber "trust" for 

the years 1987 and 1988 was a false and fraudulent income tax 

return? 
In completing reports for income tax purposes after 

December 31, 1986, the estate utilized form 1041s which is 

normally used by trusts and fiduciaries but which had a blank 

for "estate" which was checked in each of these cases. 

Objectors contend that no trust had been established under 

the will or otherwise and therefore the forms were false and 

fraudulent. 

This purported issue is nothing more than picayunish 

nitpicking. The accountant testified that he utilized the 

forms for the purpose of making required reports of income 

taxes to the federal government and that these were the forms 

which were available. 

(3) Whether all of the assets of the estate of Gerald 

W. Barber have been properly probated. Specifically, the 

estate's share of the contractual net down payment in the 

amount of $71,215.00 received from Rusty Senef on October, 

1982, which was not properly classified on the estate's 

Internal Revenue Service form 706. 

The use of the term "not properly classified" is not 

otherwise explained in the Objectors' brief. Before the 

District Court, the Objectors contended that the $71,215.00 

received by the testator during his lifetime was actually a 

part of the estate, and subject to distribution through the 

estate. The answer, of course, is that the down payment, 

received by him during his lifetime, belonged to the decedent 

to do with it as he wished. This was the item, as reported 

earlier, that the decedent used before his death, to purchase 

an annuity in joint tenancy with his wife. No probate court 

has the power to reverse that transaction or to classify the 

payment as anything but a payment received by the decedent 

during his lifetime to be spent at his entire discretion. 

(4) Whether the failure of the personal representative 

to design, implement and maintain a fair and accurate 

accounting system violated generally accepted accounting 

principles for the matching of income and expense to the 
proper beneficiary. By failing to do so, the personal 

representative did not properly segregate the assets, income 

and expenses relating to each beneficiary's individual share 

of the estate based on each person's specific bequest and/or 

devise. 

There is no statutory or other requirement that a 

personal representative maintain a separate account for each 

heir devisee named in a will or entitled to succeed by right 

of succession. Entirely lacking from appellants' brief is 

any indication that any devisee received more or less under 

the general accounting system used by the personal 

representative than that person deserved. 

(5) Whether the 1982 Federal and State income taxes for 

the decedent and his wife, the personal representative 

herein, were properly allocated between the personal 

representative and the estate. The 1982 farm income, in the 

amount of $62,134.00 should have been allocated to Margaret 

Barber on the basis of her 25 percent ownership in the Senef 

farm land. 

When Gerald Barber, the decedent, deeded 640 acres of 

his farm property to his wife, which was construed to be a 25 

percent ownership of Barber's farm holdings, the crops had 

already been harvested. There was no other income in 1982 

accruing to the farm properties after the deed given to 

Margaret Barber. She was not entitled to any of the income 

on the crops harvested before her deed, and the estate was 

not bound to allocate any of that income to her. 

(6) Whether the undocumented loan by Margaret A. Barber 

in the amount of $9,983 and the interest charged thereon was 

an ordinary and necessary expense of the estate if the loan 

was based on the improper allocation of the 1982 Federal and 

State estate income taxes. 

As discussed under paragraph (5) above, the allocation 

of the 1982 Federal and State income taxes was not improper. 

The ~istrict Court found a valid loan necessary for the 
payment of income taxes and that the same was a proper burden 

of the estate. There is no basis for this contention. 

(7) Whether the failure of the personal representative 

to properly consider the 1982 crop insurance proceeds due to 

her 25 percent ownership in the Senef farm land was a 

distortion of income and expense. 

The Objectors fail to show any pertinence to this paragraph. 

(8) Whether the personal representative failed to 

properly allocate 1982 Federal self-employment taxes and the 

recapture taxes between the decedent and herself, resulting 

in the estate paying part of her personal income tax 

obligation. 

The Objectors here are simply ringing the changes on an 

old theme. 

(9) Whether the interest paid by the estate on the 

personal representative's undocumented loans to the estate 

was an ordinary necessary tax deduction considering that the 

estate paid an above-market rate of interest when they had 

the clear and unequivocal cash resources to pay off such 

advances. 

The District Court found that the loans were indeed 

proper, had been made to the estate when it was necessary for 

the estate to borrow money to pay necessary taxes and 

expenses and it awarded interest based on statutory amounts. 

Again, this purported issue has no substance. 

(10) Whether the estate can take an ordinary, necessary 

tax deduction for a personal representative's fee and 

expenses which have not been documented in accordance with 

Internal Revenue Code 5 274(d). By failing to keep a diary, 

or submit any other written documentation or reference in 

this estate, the personal representative's fee and expenses 

can be questioned as improper, ordinary and necessary 

expense. 

We doubt it. 

(11) Whether the attorney fees paid to Donald E. ~onish 

is a proper deduction for the following reasons: 

(a) Because the entire amount of Mr. Ronish's fee 

was allocated to the estate, even though he served 
the personal representative in her individual 

capacity throughout this probate. 

(b) Because part of the fee could be classified as 

excessive, and thus nondeductible, considering the 

relevant factors involved with "reasonable 

compensation" issues. 

In this complicated and large estate made more complex 

by counsel for the Objectors, the District Court approved an 

attorney fee for services rendered to the estate which was 

less than the amount that could have been awarded by statute. 

The ~istrict Court found that the personal 

representative and the attorney, at the outset of the 

administration of the estate, entered into an oral agreement 

for an attorney fee based on the following: 

On the sum of $120,482.39 of life insurance 

proceeds, no fee would be charged; 

On the decedent's one-half of the joint tenancy 

property, a fee of 2 percent thereof would be 

charged; 

On the rest of the estate the statutory schedule 

set forth in S 72-3-633, MCA, would be charged, 

namely 45 percent on the first $40,000.00, and 3 

percent on the remaining. 

The District Court found that the fee as computed was 

less than the statutory fee that could be awarded. 

We find the fee to be a proper deduction from the assets 

of the estate. 

(12) Whether the estate properly calculated its 

"distributable net income" deduction for its short period tax 

year ending December 31, 1986. By failing to make a 

distribution of specifically bequested monies to Jerry F. 

Barber, Barbara A. Snooks and Ted L. Barber in the amount of 

$4,000.00 from the Twin Butte Ranch which was received by the 

estate on December 29, 1986, when the aforementioned persons 

were by operation of a Personal ~epresentative's Deed, the 

clear and lawful owners of the income asset in question, the 

estate erred. 
There is no explanation in Objectors' brief for this 

claimed issue. The respondent's brief indicates that the 

$4,000 represented the estate's share of the 1982 income from 

the Twin Butte Ranch and so was not an item that went with a 

deeded distribution. "Segregated crops do not go with a deed 

to the land," Respondent answered. 

After concluding the foregoing twelve claimed issues, 

Objectors' brief contends that the estate should not be 

settled, allowed and approved until the estate, the personal 

representative and the Internal Revenue Service have 

concluded their involvement. The Objectors' ask for the 

appointment of a special master to handle the estate 

meanwhile. This, although a closing letter from the Internal 

Revenue Service had been issued to this estate on April 3, 

1985. 

Conclusions 

The Objectors have failed to show before the District 

Court or on appeal any discrepancy or error in the final 

account of the personal representative; any error in the 

distribution of the estate; any error in the proportions 

found by the District Court as to abatement or as to the 

distribution of income; or any error on the amounts of 

attorney fees or personal representative fees paid in the 

estate. In most instances the Objectors raised a completely 

without weight issue based on some unsupported speculation 

that someday, somewhere the Internal Revenue Service will 

come back and find some error in the method of handling this 

estate. The District Court refused to prolong the 

proceedings on that premise and so does this Court. We 

affirm as against the appeal of the Objectors. 

Cross Appeal 

The estate cross appeals from the decision of the 

District Court that additional attorney fees for 
extraordinary services should not be granted here. The 

District Court found all of the attorney services in this 

estate were ordinary services, and did not warrant an 

additional fee. The question here is whether the attorney 

rendered extraordinary services in the conduct of this estate 

for which he should receive further compensation beyond his 

contract. We so find, and reverse the District Court on this 

point. 

The personal representative of an estate can contract 

for an attorney's services, and the estate is bound by such 

contract if it is fair and equitable. In Re Estate of 

Magelssen (1979), 182 Mont. 372, 597 P.2d 90. Such a 

contract does not preclude the award of additional fees where 

the services rendered to the estate by the attorney are 

extraordinary in nature and reasonably necessary for the good 

of the estate. 

In the circumstances here, the following consisted of 

extraordinary services to the estate: 

The Personal ~epresentative 

The will of decedent appointed his wife, Margaret A. 

Barber, to be the personal representative. If she were 

unable to act, the will appointed Barbara A. Snooks, the 

decedent's daughter, as personal representative. Pursuant to 

the will, Margaret A. Barber was appointed personal 

representative on December 16, 1982. 

On August 8, 1983, Barbara A. Snooks, the daughter, 

petitioned the District Court to be co-personal 

representative, alleging that she had been unable to get 

information from the personal representative, that the 

attorneys fee was excessive, and that the personal 

representative and her attorney had failed to utilize all of 

the income tax elections available to the estate. After a 

hearing and briefs submitted, the District Court denied the 
petition of August 29, 1983 for appointment of a co-personal 

representative. 

The Senef Contract 

On November 25, 1986, the personal representative 

petitioned the court for approval of the offer of Russel 

Senef to pay off the balance due on the contract for sale for 

the Barber farm. As we indicated in the foregoing, the 

principal balance due at the time on the contract was 

$836,960.00. The proposed offer came to $745,794.56. This 

represented 75 percent of the principal balance due and 

accrued interest to December 1, 1986. In order to facilitate 

the acceptance of the offer, the personal representative 

offered to waive her 25 percent of the payment which was due 

to her under the contract, and to accept instead one-half of 

the settlement, the other half to be divided between the 

remaining heirs equally. Thus, what the heirs would receive 

under the proposed offer, and the agreement by the personal 

representative to waive her portion, was everything that they 

would have received under the contract if it had been paid 

out by the buyer during the lifetime of the widow. 

The petition for approval of the proposed offer further 

sets out undisputed facts at the time, that the farm was 

losing profitability, a farm recession was occurring in the 

State at the time, and it was to the best interests of the 

estate to negotiate a settlement of the contract for sale. 

Further, under the proposal, the personal representative 

would distribute $660,000.00 of the payment immediately, 

one-half going to her, and each of the Objectors receiving 

$110,000.00 cash payment. Eventually the District Court 

approved the offer, the money was received, and the 

distribution made and accepted as proposed. This approval 

was given, however, over the strong objections of the 

Objectors, acting through their counsel. 
After the court approved the offer on December 29, 1986, 

the Objectors filed a Rule 59(g) motion to alter or amend the 

judgment contending that they were not forewarned about the 

pending distribution. Counsel for the personal 

representative filed a brief opposing the Rule 59(g) motion, 

and the Objectors , purportedly acting under Rule 12 ( f) , 

M.R.Civ.P., moved to strike portions of the brief as 

impertinent and scandalous. On February 18, 1987, the 

~istrict Court denied the Rule 59(g) motion, and denied the 

Rule 12(f) motion on the grounds that the latter rule applied 

only to pleadings and not to briefs. 

The ~inal Accounts 

We have chronicled in the first part of this opinion the 

objections of the objectors to the first and final accounts 

of the personal representative. Two hearings were required 

on those objections, one lasting two days and the other a 

full day in court, and full briefs were required. The 

District Court found no substance in the objections made by 

the Objectors. 

The Appeals 

In addition, there have been four appeals to this Court, 

including the present appeal. The first appeal involved an 

attempt by the objectors to force a partial distribution of 

the estate, which was denied in the District Court. This 

Court affirmed on appeal. Estate of Barber (1985), 216 Mont. 

26, 699 P.2d 90. 

Two subsequent appeals to this Court were dismissed. 

The present appeal has no substance as the foregoing portion 

as this opinion indicates. 

The District Court file is a record of obstreperous, 

obstructive and groundless objections to all steps and 

proceedings undertaken by the personal representative which 

required of counsel for the estate continual briefings, 
correspondence, and court appearances in order to keep the 

estate moving. We have here a record not of ordinary 

attorney services in the conduct of an estate proceedings, 

but rather one involving extraordinary services brought about 

by the actions of the Objectors. 

The blame for the detrimental objections to the progress 

of an ordinary estate can not be laid entirely at the feet of 

the Objectors. The District Court file, and the appellate 

record evince that the attorney for the Objectors is 

essentially responsible for the troubles in this estate. 

We therefore determine that the extraordinary services 

rendered by the attorney for the estate require an additional 

fee of $3,000.00. This, however, shall not be a burden on 

the estate itself. One-half thereof shall be the joint and 

several burden of the Objectors , personally, and the other 

half shall be paid by counsel for the Objectors, Philip P. 

McGimpsey. 

Disposition 

The judgment of the District Court approving and 

allowing the several accounts of the personal representative, 

and providing for distribution and the fixing of attorney and 

personal representative fees for their ordinary services is 

by this Court affirmed. That portion of the judgment, 

however, which denies the attorney for the estate an 

additional fee for extraordinary services is by this Court 

reversed. On remand the ~istrict Court shall enter judgment 

in favor of the attorney for the estate for the sum of 

$3,000.00, one-half thereof to be the joint and several 

responsibility of the objectors, Ted L. Barber, Barbara A. 

Snooks, and Jerry F. Barber; and one-half thereof the 

responsibility of the attorney for the Objectors, Philip P. 

~c~impsey. 
Justice