NO. 89-084

INTHE SUPREME COURTOF THE STATEOFMONTANA
1989

INTHEMATTER OF THEESTATE OF GERALDW. BARBER,Deceased.

--. APPEAL FROM: District Court of the Tenth ~udicial ~istrict, Inand for the County ofFergus, The Honorable Peter Rapkoch, Judgepresiding.

COUNSEL OF RECORD:

Filed: ForAppellant: ~hillip R. McGimpsey,Billings,Montana

For Respondent:
Donald E. ~onish, ~ewistown, Montana

submitted onbriefs: June 8,1989 Decided: September 14, 1989

ClerkMr. 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 ~istrictCourt, 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 thedecedent. Thepersonal 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 DistrictCourt insofar as it approves the finalaccount of thepersonal representativeand orders distributionof the estate; and reverse theportion of the order denying attorneys fees for extraordinary services for the reasonshereafter stated. The three appellants here (forwant of a better term, hereafter "Objectors") are children of the decedentGerald W. Barber by a former marriage. The personal representative, Margaret Barber, is thewidow 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 thewill 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 samedaybut after the conveyance tohiswife,he executed his lastwill and testament. Hiswill directed thatif his other rural property, which included his interest in the farm,shouldbe 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 specificallydevised property, the residue of the estate was to be distributed one-half to the widow, and one-half to the survivingchildren. TheFarm 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 administrationof the estate. On October 18, 1982,the decedentand hiswife,Margaret Barber, entered into a contract for deed to sell the farm holdings to Russell E. Senef and ~hylissL. Senef, for $1,100,000.00. The realproperty to be transferredunder the sale included the 640 acre parcel which decedenthad earlier deeded toMargaretA. Barber. The downpayment 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 jointbank account with his wife,Margaret Barber, and used some of the proceeds to purchase a single premium annuity ofwhich hiswifewas 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 thewill. On November 25, 1986,while the estatewas in progress, Margaret Barber, as personal representative of the estate, petitioned the District Court for approval of an offer from the buyersunder the contract for a fulland 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 FinalAccount(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 Courtheld 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 SupremeCourt under its Cause. No. 88-230which appeal was dismissed by this Court onJanuary 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

aspart of theprincipal on loans shehad 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 hearingwas 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 "thecurrentaccount,and actions, proceedings done and conducted in this estateby thepersonal representative, attorney and accountants." The Court also denied additional attorney fees for legal services and ordered thepersonal representativetodistribute thebalance of the estate to theheirs and beneficiaries aspetitioned in the finalaccount. Thenotice of appeal filedby the Objectors which brings the case to this Court recites that it is an appeal from the order of December 14, 1988,of the DistrictCourt. 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 administrationof the estate that arenot included in the order of December 14, 1988, issued by the ~istrict Court.The contention of the personal representative is that the orderof the ~istrict Court onJanuary 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 courthad jurisdiction. The District Court is given broad jurisdictionalpowers 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 itbe supervised ornot. Section 72-3-1005, MCA. Unless otherwise ordered by the court, a supervised administrationmay only be terminated by an order of the courtwith 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, 1988also approving the final account are to be treated as one order for the purpose of determining the right to appeal. 

### A second jurisdictionalargument raised by thepersonal representative is that therewas no issue jurisdictionbefore 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 representativeargues, no issueswere defined, and without issues there is nothing on which an appeal canbe based. Theprovisions of theUniform 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, alsoprovides 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 thehearings

(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

### aprobate proceeding ismuch the sameas issuesraisedby 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 considerationby us. In likemanner,as to issues notraisedbefore theDistrictCourt and now raised on appeal

(thereare some)we will followthe usual appellate rule that unless the issue israised 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 Courtand 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 Objectorsas follows: 1. 

### id the District Court err and abuse its discretion by allowing the August 5, 

### 1988 final account of the personal representative, MargaretA. 

### 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 ~istrictCourt 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 GeraldW. Barber by the personal representative, the estate's attorney, and the estate'saccountants? The general statements of issues foregoing do little to inform the Court with specificity of the contentions of theObjectors. 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 aswell as to questions of law. With that statute in mind, we proceed to consider the issueswe 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 ~istrictCourt at the same time concluded that the proportional value of the specific devises for abatement purposeswould 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 representativeand her legion of professional advisers have failed to take all steps reasonablynecessary for themanagement, protectionand 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 ofmanagement, protection andpreservation of the estate. The District Court found that the abatement statute, § 72-3-901, MCA, applied because the residue of the estate and the interestaccruedwas insufficient topay all expensesanddisbursements. 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 tobe 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 fulldistribution of theproperty 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 theproportionswerewrongly 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 ordinaryexpenses 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 accordancewith 

### 5 72-25-404,MCA. The apportionment of abatement 

### is in accordance with 

### 5 72-3-901,MCA. These statutes relate to two different subjectsand,as in this case, do not necessarily coincide. We uphold the proportionsdecided by the DistrictCourt. 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 specificallydevised 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 theObjectors. 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. Paymentof 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 representativeand 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 thepayments were improperwithout 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'sduty 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 creditorsof the estate andwere approved. There isn't any doubt in this case that the personal representative, the widow of the decedent,made loans to the estate. The loanswere necessary because thepayments on the farm contractwere not coming in, federaland state taxeshad to be paid, and other expensesmade the loans necessary. The District Court eventually found that she had made loans totalling $14,633.00 to the estate,and that shewas entitled

on those loans to receive interest of $4,730.15 to February 1, 1987,plus $4.01 per day thereafteruntilpaid. 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 theprior order of the court. As the personal representative in brief points out, under S 72-3-613(18)

### , MCA, the personal representative has thepower topay 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.eclaims. Section 72-1-103(4),MCA, statesthat "claims" include liabilitiesof the estateand "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. Thepersonal representativehas 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 setout in 

### 5 72-3-633,MCA. The partpayment of those fees on December 30, 1987, was not improper in this case. We do not find any conflict of interestor violation of ethicsby either thepersonal 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 anyway adversely the administration of the estate, and were just claims against the estate for which therewas a right of eventualpayment 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, flagrantacts of conflict of interest, self-dealing and arrogant selfishness," but there is absolutely no substanceto such charges. Settling the PersonalRepresentative's FinalAccounts 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 accountantswere correctand 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 representativebefore ascertaining that the Federal Internal RevenueCodewas compliedwith. The Objectors shotgunned twelve claimed issues under this caption, whichwewill 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 tobe 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. Themoney 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 20percent. 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 65days from December 31, 1986, which under federal regulations could be

### construed as having been distributed before December 31, 1986. The objectionsof the Objectorsmade use of the 65day 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 expirationof a reasonable time for completionof administrationandwhen 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 shallbe 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 inprobate formore than four years. By the end of 1986, all income producing property had been distributed and the amount held back by thepersonal representativewas 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 thatwas 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 fromcounsel for theObjectors. (2) Whether the Internal Revenue service form 1041s filedonbehalf of the estate ofGeraldW. Barber "trust" for the years 1987 and 1988was a falseand fraudulentincome tax return?

### In completing reports for income tax purposes after December 31, 1986, the estate utilized form 1041s which is normallyused by trustsand fiduciaries but whichhad ablank 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 governmentand that thesewere 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, receivedby himduring his lifetime,belonged to the decedent to do with it as he wished. This was the item, as reported earlier, thatthe decedentused before hisdeath,to purchase

an annuity in joint tenancy with hiswife. No probate court has the power to reverse that transactionor 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 failureof 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 theproper beneficiary. By failing to do so, the personal representativedid 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 separateaccount 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 thatperson deserved. (5) Whether the 1982 Federaland 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 hiswife,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 notbound to allocateany of that income to her. (6) Whether the undocumented loanby MargaretA. 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 1982Federal and State income taxes was not improper. The ~istrictCourt found 

### a valid loan necessary for the

### payment of income taxes and that the samewas aproper burden of the estate. There isnobasis for this contention. (7) Whether the failure of the personal representative to properly consider the 1982 crop insuranceproceeds due to her 25 percent ownership in the Senef farm land was a distortionof income and expense. The Objectors fail to showany 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 beenmade to the estatewhen itwasnecessary for the estate to borrow money to pay necessary taxes and expenses and it awarded interestbased on statutoryamounts. Again, thispurported issuehasno substance. (10) Whether the estate can takean 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 keepa 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 theattorney feespaid to Donald E. ~onish is aproper deduction for the followingreasons: (a) Because the entire amount ofMr. Ronish's fee was allocated to the estate, even though he servedthe personal representative in her individual capacity throughout thisprobate.

(b) Becausepart 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 feebased 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 tobe aproper deduction from the assets of the estate. (12) Whether the estate properly calculated its "distributablenet income"deduction for its shortperiod tax year ending December 31, 1986. By failing to make a distribution of specifically bequested monies to Jerry F. Barber, Barbara A. Snooksand Ted L. Barber in the amount of $4,000.00 from theTwinButteRanch whichwas receivedby the estate on December 29, 1986,when the aforementioned persons were by operation of a Personal ~epresentative'sDeed, 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 $4,000represented the estate's share of the 1982 income from the Twin Butte Ranch and sowas not an item thatwentwith a deeded distribution. "Segregatedcrops do not gowith adeed to the land,"Respondentanswered. 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. Inmost 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 themethod ofhandling this estate. The District Court refused to prolong the proceedings on that premise and so does this Court. We affirm as against the appealof 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 renderedextraordinary services in the conduct of this estate for which he should receive further compensation beyond his contract. We so find,and reverse theDistrictCourton 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 contractdoes notpreclude theaward ofadditional feeswhere the services rendered to the estate by the attorney are extraordinary in natureand reasonablynecessary for the good of theestate. In the circumstances here, the following consisted of extraordinary servicesto the estate: ThePersonal~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,aspersonal representative. Pursuantto the will, Margaret A. Barber was appointed personal representativeonDecember 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 ofAugust 29, 1983 for appointmentof 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 thebalance 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 interestto December 1,

### 1986. Inorder to facilitate the acceptance of the offer, the personal representative offered towaive 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 representativetowaive herportion, was everything that they would have received under the contract if it had been paid outby thebuyer during the lifetimeof thewidow. The petition for approval of the proposed offer further sets out undisputed facts at the time, that the farm was losing profitability, a farm recessionwas 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 throughtheir counsel.

### After the courtapproved the offeronDecember 29, 1986, theObjectors filed aRule 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 thegrounds that the latter ruleapplied only to pleadings and not tobriefs. The ~inal Accounts We have chronicled in the firstpart 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. TheAppeals Inaddition,therehavebeen four appealsto thisCourt, 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 ofBarber (1985),216 Mont. 26, 

### 699P.2d 90. 

### Two subsequent appeals to this Court were dismissed. The present appeal has no substanceas the foregoingportion

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 actionsof the Objectors. Theblame for the detrimental objections to the progress of an ordinary estate can notbe laid entirely at the feetof 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 renderedby the attorney for the estate requirean 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 thepersonal representative, and providing fordistributionand 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