                                    No. 8 6 - 6 8
                                        and
                                          86-78

               IN THE SUPREME COURT OF THE STATE OF MONTANA




IN THE MATTER OF THE ESTATE OF
DOROTHY FARNUM, Deceased.




APPEAL FROM:    District Court of the Eleventh Judicial District,
                In and for the County of Flathead,
                The Honorable Nat Allen, Judge presiding.

COUNSEL OF RECORD:

         For Appellant:
                Roschert   &   Boschert; Ernest F. Roschert, Billings,
                Montana

         For Respondent:
                Terry Trieweiler, Whitefish, Montana




                                       Submitted on Briefs: Oct. 2, 1 9 8 6
                                          Decided:   December 12, 1986


Filed:   DEC 1 2 1986



                                       Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.

      These cases arise from the death of 12-year-old Dorothy
Farnum     (Dorothy) in an automobile/bicycle collision.          The
District Court for Flathead County, acting as a probate
court, appointed Alice Farnum, Dorothy's mother, as personal
representative.         It also authorized her to prosecute any
wrongful death action and approved her settlement of wrongful
death and survival claims for $100,000.             In a separate ac-
tion, the same court approved allocation of the proceeds of
the wrongful death claim hetween Dorothy's mother and father.
We affirm.
      We restate the issues as follows:
      1.    Did   the    Probate Court   in   the   Eleventh Judicial
District err in finding that Alice Farnum was a proper person
to   be    personal     representative of     the estate of Dorothy
Farnum?
      2.    Did   the    Probate Court   in the Eleventh     Judicial
District have jurisdiction to approve a settlement covering
both the survival and the wrongful death causes of acti-on,
even though the father's wrongful death action was then
pending in the Thirteenth Judicial. District?
      3.    Did   the   Probate Court    in the Eleventh Judicial
District err in authorizing Alice Farnum to settle both the
survival and wrongful death causes of action and in approvinq
the allocation of the proceeds of the settlement between the
two actions?
      4.    Did   the   Probate Court    in the Eleventh     Judicial
District err by denying the father's motion for a new hearing
or to amend the probate order?
        5.   Did the Eleventh Judicial District Court err in
denying the father's motion to strike and dismiss the peti-
tion for allocation of the wrongful death proceeds?
        Dorothy Farnum was 12 years old when she was killed in
an automobile/bicycle collision in July 1983.          Alice Farnum,
Dorothy's mother ar,d her custodial parent, was informally
appointed     as personal   representative    (P.R.)   of Dorothy's
estate in August 1983.      Alice Farnum retained an attorney who
hegan pursuing wrongful death and survival claims against the
driver of the car which hit Dorothy.         They filed a survival
action in federal district court.      In August 1985, Dorothy's
father, Vernon Farnum, filed a demand          for notice of all
actions taken with regard to the estate.       A week later, Alice
Farnum petitioned the Probate Court for authority to enter
into a compromise settlement of claims against the driver of
the car involved in the collision, noticing Vernon Farnum
with a copy of the petition.      Vernon Farnum filed his objec-
tion to the petition, stating that he had commenced his own
wrongful death action.
     A hearing was held on Alice Farnum's petition in October
1985.    She appeared with her attorney.     Vernon Farnum did not
appear, but was represented by his attorney.           Testimony was
presented by Alice Farnum and her attorney, and by Kenneth
Farnum, Dorothy's older brother.       Alice and Kenneth Farnum
testified that Dorothy's parents were divorced when she was 3
years old and that Dorothy was very close to her mother but
that she'd had virtually no contact with her father.          Alice
Farnum's attorney     testified   that the    $100,000 settlement
amount was the insurance limit of the driver of the car, and
that a reasonable allocation of the amount, in light of the
circumstances, would be $5,000 to the survival action and
$95,000 to the wrongful death action.     He also testified that
Vernon Farnum had not been consulted during settlement dis-
cussions because he had expressed a lack of interest to
various family members.     His consent to the settlement agree-
ment was sought because it was technically required, and that
was when Vernon Farnum filed his demand for notice.       Vernon
Farnum's attorney called no witnesses at the hearing, but
offered into evidence a copy of his wrongful death complaint
filed in the District Court for Yellowstone County.
     In November 1985, the Probate Court entered its find-
ings, conclusions, and order formally appointing Alice Farnum
as P.R.    of the estate.    It also authorized Alice Farnum to
prosecute any wrongful death action which arose as a result
of Dorothy's death, approved settlement of the wrongful death
and survivor actions for $100,000, and approved allocation of
$5,000 of that amount to the survival action brought on
behalf of the estate.       The court stated that the allocation
of proceeds from the wrongful death action between the com-
peting claims of Alice Farnum and Vernon Farnum would have to
be dealt with in a separate proceeding.
     Vernon Farnum moved for a new hearing on the basis of
newly discovered evidence.     In support he filed affidavits by
himself and his former attorney.      The affidavits stated that
Mr. Farnum was unable to attend the hearing because he had
just started a new job over 1,000 miles away, and that he had
been a good dad to Dorothy.     The court denied his motion.   He
appeals.
     Four days after the entry of the probate order, Alice
Farnum filed a petition entitled "In the Matter of Dorothy
Farnum, Deceased."      She sent notice of this petition to
Vernon Farnum through his attorney.        In this action, she
petitioned the court to allocate the wrongful death proceeds.
Vernon Farnum moved to strike and dismiss the petition be-
cause he had not personally been served with process, there
was no document entitled llcomplaint"filed in the action, and
the court had no subject matter jurisdiction.      That motion
was denied.     Taking judicial notice of the hearing and evi-
dence in the probate matter, the court ordered that all
$95,000 of the proceeds be allocated to Alice Farnum and none
of the proceeds be allocated to Vernon Farnum.   Vernon Farnum
appeals that order.
     On appeal, Alice Farnum filed a motion with this Court
requesting that the statements of fact in Vernon Farnum's
briefs be stricken, because they are not based       upon the
record but primarily upon the affidavits filed by Vernon
Farnum and his attorney after the October 1985 hearing.     We
do not find it necessary to strike the statements of fact.
The matters set forth in th.e affidavits submitted by Vernon
Farnum will be considered only for purposes of reviewing the
denial of the motion for a new hearing, where the affidavits
were properly before the court.


     Did the Probate Court in the Eleventh Judicial District
err in finding that Alice Farnum was a proper person to be
personal representative of the estate of Dorothy Farnum?
     The father argues that since he and the mother did not
agree on who should be P.R., the court should have appointed
another qualified person.    He says that Alice Farnum did not
act properly as P.R. because she failed to hold the wrongful
death proceeds in trust for all heirs, violating her fiduci-
ary duty.     He maintains her appointment as P.R. should have
been terminated.
       The Probate Court found that Alice Farnum and Vernon
Farnum, as Dorothy's heirs, shared priority for appointment
as P.R.    under 5 72-3-502(5), MCA.      Based on the evidence
presented, it found Vernon Farnum unsuitable for appointment
as P.R.,   and concluded that this left Alice Farnum as the
only suitable person with priority for appointment.             The
witnesses at the hearing testified that Dorothy was very
close to her mother but had virtually no relationship with
her father, and that her father had not shown an interest in
helping pay for Dorothy's support while she was alive or for
her final medical and funeral expenses.          We conclude that
substantial    credible   evidence   supports   the   finding   that
Vernon Farnum was unsuitable for appointment as P.R.             of
Dorothy's estate.   We hold that the Probate Court was correct
in finding that Alice Farnum had priority for appointment as
P.R.   and that she was a proper person to be P.R.          of the
estate.    We further hold that there is nothing in the record
to support termination of Alice Farnum's appointment as P.R.
                                I1

       Did the Probate Court in the Eleventh Judicial District
have jurisdiction to approve a settlement covering both the
survival and the wrongful death causes of action, even though
the father's wrongful death action was then pending in the
Thirteenth Judicial District?
       Vernon Farnum says that the Probate Court acted in
excess of its jurisdiction, under this Court's opinion in
Matter of Estate of Pegg       (Mont. 1984), 680 P.2d      316, 41
St.Rep. 558.    In that case, this Court held that a district
court acting in probate exceeded its jurisdiction when it
assumed authority over a settlement offer, approved it, and
then    ordered   dismissal   of   the   personal    representative's
wrongful death action filed in another judicial district.
       Alice Farnum had been informally appointed as P.R. of
Dorothy's estate in August 1983, before she filed her surviv-
al action against the driver of the car.            Vernon Farnum was
never appointed P.R. of the estate.        Our opinion in Pegg does
not control on this issue, because in Pegg the P.R. had filed
her action in another district than the one in which the
court assumed jurisdiction over the settlement offer.
       In the present case, the Probate Court of the Eleventh
Zudicial District was the only court which could approve a
settlement in the survival action, since it had jurisdiction
over the estate.     The wrongful death settlement was inextri-
cably linked to the survival settlement.            We conclude that
the Probate Court acted within its jurisdiction.


       Did the Probate Court in the Eleventh Judicial District
err in authorizing Alice Farnum to settle both the survival
and wrongful death causes of action and in approving the
allocation of the proceeds of the settlement between the two
actions?
       Any cause of action for Dorothy's wrongful death must he
brought pursuant to 5 27-1-512, MCA, which provides:

       Either parent may maintain an action for the injury
       or death of a minor child and a guardian for injury
       or death of a ward when such injury or death is
       caused by the wrongful act or neglect of another.       .
This section parallels the statute for injury or wrongful
death of an adult, found at 5 27-1-513, MCA.              Under that
statute this Court has held that there can be but one action
for wronqful death, anl! that action must be brought by the
personal representative.    State ex rel. Carroll v. District
Court (1961), 139 Mont. 367, 370, 364 P.2d 739, 741.       The
one-action rule is intended to avoid a multiplicity of law-
suits and   all the confusion that would ensue therefrom.
Alice Farnum argues that these reasons are equally applicable
to wrongful death suits involving a minor, and that permit-
ting only one action by the P.R.     is the fairest approach.
     We tend to agree with the above policy arguments, but
the language of S 27-1-512, MCA, does not support the conclu-
sion that the P.R. must bring any action for the wrongful
death of a child.      However, Alice Farnum was properly ap-
pointed as P.R. shortly after Dorothy's death.   Vernon Farnum
apparently brought his wrongful death action only after being
asked to approve the $100,000 settlement negotiated by Alice
Farnum's attorney.     That settlement involved not only the
wrongful death claim, but also the survivorship claim, which
only the P.R. could settle.     The court heard testimony from
Alice Farnum's attorney on an appropriate division of the
proceeds between the two causes of action.       Vernon Farnum
neither offered evidence on this issue nor objected to the
manner in which the proceeds were allocated hetween the two
causes of action.     We affirm the Probate Court's authoriza-
tion to Alice Farnum to settle both actions and its alloca-
tion of the proceeds between the two actions.
                              IV
     Did the Probate Court in the Eleventh Judicial District
err by denying the father's motion for a new hearing or to
amend the probate order?
     The Probate Court did not distribute the wrongful death
proceeds.   Instead, it very carefully ruled that it had no
jurisdiction there.      It held separate proceedings in its
capacity as a district court to rule on the distribution of
the wrongful death proceeds.   The District Court for Flathead
County was the proper court to approve of the wrongful death
settlement, because Flathead County was the county of Doro-
thy's residence and the county in which she died.
     The motion for a new hearing was based upon a claim of
newly discovered evidence.   The affidavits submitted with the
motion allege facts about Vernon Farnum's relationship with
Dorothy in the years preceding her death and say that he
failed to appear at the hearing hecause he had just bequn a
new job.    No reason was given for Mr. Farnum's failure to
submit these affidavits earlier.   We conclude that the affi-
davits do not present any newly discovered evidence, and that
the court properly denied the motion for a new hearinq or to
amend the order.
                               v
     Did the Eleventh Judicial District Court err in denying
the father's motion to strike and dismiss the petition for
allocation of the wrongful death proceeds?
     Vernon Farnum maintains that the second proceeding, in
which the District Court divided the proceeds of the wrongful
death settlement, was flawed because he was not personally
served with a summons and complaint.   He argues the court. had
no subject matter jurisdiction over the wrongful death ac-
tion, and the petition was wrongly based on the probate
order, on which the time for appeal had not yet expired.
     A proceeding   to allocate the proceeds of a wrongful
death suit involves the disposition of property, title to
which has not been established.     In Montana, the right to
bring a wrongful death action for the death of a minor child
is vested   in either parent under S     27-1-512, MCA.    The
dismissed with prejudice.    It should be noted that there is
enough uncertainty in the statutes regarding the wrongfill
death of minors   that the   legislature should clarify the
procedures with regard to surviving parents who are separated
and with reqard to whether such an action should be brouqht
by a personal representative, as in S 27-1-513, MCA.




We Concur:
district courts1 jurisdiction over such actions is suffi-
ciently broad to allow them to allocate the proceeds of such
an action.     Pegg, 680 P.2d at 323.    Here, Alice Farnum in-
voked   that   jurisdiction by   her petition to allocate the
wrongful death settlement.       Following the practice used in
Montana- for many years, the petition was filed in lieu of the
formality of filing a complaint and        summons against the
driver of the automobile.    The latter procedure was unneces-
sary since a settlement agreement had already been reached.
Notice of the petition was served upon Vernon Farnumls attor-
ney prior to the hearing.    We conclude that proper notice of
the proceeding was provided to Vernon Farnum.
     The father has not shown any reason why consideration of
this matter must wait until the time for appeal expired on
the probate order.    He has not shown that he was prejudiced
by the court taking notice of the probate action, and he did
not lose his right to appeal either order.
     The father further argues that both parents should share
any award for the wrongful death of a minor child.     That is
generally true.    However, here the evidence before the court
demonstrated that only the mother could reasonably be expect-
ed to suffer damages including loss of consortium, mental
anguish, and loss of future support.      We conclude that the
District Court's     allocation of   the proceeds between   the
parents is supported by substantial evidence.
     We affirm the orders entered by the Eleventh Judicial
District Probate and District Courts.    In view of our conclu-
sions here, and because there can be but one wrongful death
action arising out of Dorothy Farnum's death, we order that
the wrongful death action denominated cause no. 85-1984 in
the Thirteenth Judicia.1 District of Yellowsto~e County, be
