Estate of Barber, Matter of, 89-084
| Decision Date | 14 September 1989 |
| Docket Number | No. 89-084,89-084 |
| Citation | 239 Mont. 129,779 P.2d 477 |
| Parties | In the Matter of the ESTATE OF Gerald W. BARBER, Deceased. |
| Court | Montana Supreme Court |
Phillip R. McGimpsey, Billings, for appellant.
Donald E. Ronish, Lewistown, for respondent.
Jerry F. Barber, Barbara A. Snooks and Ted L. Barber, the children of the decedent, Gerald W. Barber, appeal from an order of the District Court, Tenth Judicial District, 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.
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 time 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.
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 Phyliss 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.
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. Ronish, 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 District 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.
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 District Court. The contention of the personal representative is that the order of the District 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 Sec. 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 Sec. 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 Sec. 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...
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