                               No. 85-408
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1986




IN THE MATTER OF THE ESTATE OF
LEMPI MATTILA, Deceased.




APPEAL FROM:    District Court of the Eighth Judicial District,
                In and for the County of Cascade,
                The Honorable Thomas McKittrick, Judge presiding.

COUNSEL OF RECORD:

         For Appellant:
                Jenkins Law Firm; Kelly A. Jenkins, Helena, Montana
                Richardson & Richardson; George Richardson, Butte,
                Montana

         For Respondent:
                John F. Iwen, Great Falls, Montana
                Clarke M. Dawson, Great Falls, Montana
                Alexander & Baucus, Great Falls, Montana




                                  Submitted on Briefs: Jan. 30, 1 9 8 6
                                    Decided: May 9, 1986


Filed:   MAY 9 - 1906



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


       Ilene Cox appeals from an order of the District Court
for Cascade County which dismissed her petition to be ap-
pointed as special administrator of this estate.     We affirm.
       We restate the issues as follows:
       1.   Did the District Court err by excluding certain
documents and testimony from evidence?
       2.   Did the District Court err in granting the motion to
dismiss     Ilene Cox's   petition   for appointment as   special
administrator?
       The estate of Lempi Mattila, who died in 1983 at the age
of 76, includes the estate of her older brother William, who
predeceased her by ten days.     She was the sole devisee under
William's will.       Lempi Mattila's devisees are her     seven
second cousins, one of whom, Gilbert Myllynaki (Gilbert) was
named as co-personal representative in her will, along with
Evan Grey (Evan), the husband of another of the second cous-
ins.    Ilene Cox is also one of the surviving second cousins.
She petitioned to be appointed special administrator of Lempi
Mattila's estate, alleging a conflict of interest on the part
of Evan and Gilbert, arising from the following:
       A year and a half before William Mattila died, he exe-
cuted a limited power of attorney giving Evan and Gilbert the
power to handle his social security and Medicare matters.     He
was then 79 years of age and living in a nursing home.
Several months later, and about thirteen months before Wil-
liam Mattila died, Evan and Gilbert signed a warranty deed as
his attorneys-in-fact.     The deed purported to convey William
Mattila's 400-acre ranch near Belt, Montana, to Gilbert and
his brother, another of the second cousins.      Both the power
of attorney and the warranty deed were recorded.
     Ilene Cox argues that the ranch property              should be
claimed as part of Lempi Mattila's estate, which now includes
all of William Matilla's estate.        She has filed a civil suit
against Evan and Gilbert in which she seeks 2.2 million
dollars in damages arising from the transfer of title to the
ranch.    However, she did not intervene in the probate of this
estate until after the final account had been              filed and
approved and the court had authorized the co-personal repre-
sentatives to distribute the assets of the estate.             After
that time, she filed this petition, asking to be appointed
special administrator.     She did not ask that distribution of
the estate be stayed.       Evan and Gilbert moved to dismiss
because Ilene Cox's petition was not timely, because the
probate court did not 11a.ve jurisdiction to set aside the
property transaction, and because Ilene Cox had already filed
a separate suit on this issue.      The District Court, after a.
hearing, granted the co-personal representatives' motion to
dismiss Ilene Cox's petition.     She appeals.


     Did the District Court err by excluding certain docu-
ments and testimony from evidence?
     The District Court sustained an objection to asking the
attorney for the estate whether the co-personal representa-
tives had asked him to investigate the validity of the ques-
tioned deed.     The reasons for the objection and the ruling
were not stated.        We affirm the District Court's ruling
because    of   the   attorney-client    privilege   set   forth   at
5 26-1-803, MCA.

     The District Court refused to admit into evidence the
power of attorney and deed which Ilene Cox contends suggest
that the transfer of the ranch was invalid.          The court held
that both documents were irrelevant.        However, it agreed to
take judicial notice of the file in the separate action
brought by Ilene Cox against the co-personal representatives.
That file contains both documents.        Any prejudice caused by
the court's failure to admit those documents into evidence
was therefore negated.


     Did the District Court err           granting the motion
dismiss   Ilene Cox's    petition   for appointment as       special
administrator?
     Montana's   statutory    provision   for   appointment   of   a
special administrator,   §   72-3-701, MCA, provides that:
       A special administrator may be appointed:
       (1) informally by the clerk on the
       application of any interested person when
       necessary to protect the estate of a
       decedent prior to the appointment of a
       general personal representative or if a
       prior appointment has been terminated as
       provided in 72-3-522;
       (2) in a formal proceeding by order of
      the court on the petition of any inter-
      ested person and finding, after notice
      and hearing, that appointment is neces-
      sary to preserve the estate or to secure
      its proper administration, including its
      administration in circumstances where a
      general personal representative cannot or
      should not act.    If it appears to the
      court that an emergency exists, appoint-
      ment may be ordered without notice.
This estate is being probated informally.       The proper proce-
dure for informal appointment of a special administrator is
set out in subsection (1) above.       The record does not indi-
cate that Ilene Cox moved to he appointed special administra-
tor prior to the appointment of a persona.1 representative,
nor has the appointment of the co-personal representatives
been terminated.   The procedure followed in this case was,
instead, the one described. in subsection         (2) for formal
proceedings.
       Ilene Cox relies heavily on the case of Matter of Estate
of Sauter (Mont. 1980), 615 P.2d 875, 37 St.Rep.      1425, to
support her position that she should be appointed as a spe-
cial administrator of this estate.       In Sauter, this Court
held tha-t a special administrator should be appointed where
the personal representative had a conflict of interest re-
garding a claim purported to be an asset of the estate.   That
case differed from this one in several respects.     In Sauter,
the matter of whether the claim should be pursued was holding
up the progress of probate of the estate.     Sauter, 615 P.2d
at 877.    In this case, probate of the estate has been com-
pleted to the point of distribution of assets, which has
already been approved by the court. Ilene Cox has requested
and received notice of proceedings in this estate under
5 72-3-106, MCA. She made no objection to the final account
or to the proposed distribution. In Sauter, the claim had
been   reduced to   a   lawsuit before   the decedent's dea.th.
Sauter, 615 P.2d at 876.   Here, although the deed transfering
the ranch was signed and filed over 13 months before William
Mattila's death, its validity was apparently not questioned
until after the deaths of both William and Lempi Mattila and
the completion of administration of both estates.     There is
no unanimity among the devisees as to the propriety of the
transfer of the ranch.       Four of the seven devisees have
consented to the transfer. Finally, at the hearing in this
matter, testimony as to the circumstances surrounding the
signing of the deed was presented by William Mattila's attor-
ney.   He testified that Mr. Mattila was present when the deed
was signed, and that Mr.      Mattila wished to transfer the
property to Gilbert and his brother.     The attorney testified
that he mistakenly advised the parties that the power of
attorney held by Gilbert and Evan authorized them to sign the
deed on behalf of William Mattila.     Ilene Cox did not present
any evidence to rebut this testimony.
        Montana-'s statutory provision   governing who    may   be
appointed as a special administrator is found at     §   72-3-702,
MCA :

         (1) If a special administrator is to be
         appointed pending the probate of a will
         which is the subject of a pending appli-
         cation or petition for probate, the
         person named executor in the will shall
         be appointed if available and qualified.
          (2)  In other cases, any proper person
         may be appointed special administrator.

"Proper person" is not defined. in the statutes.    The District
Court found that Ilene Cox was not a "disinterested party" in
its order dismissing her petition for appointment as special
administrator.      In view of the facts, we agree that she was
not a "proper person" under the statute.
        The determination of questions regarding the appointment
of a special administrator is a matter of discretion with the
trial court.        Sauter, 615 P.2d at 878.   We conclude that
there will be no injustice done if Ilene Cox is not appointed
specia.1 administrator of this estate.   She has not shown that
Evan and Gilbert cannot or should not distribute the cash
assets remaining in the estate, and she is not barred from
pursuing her separate a.ction regarding transfer of the ranch.
We affirm the District Court's dismissal of her petition for
appointment as special administrator.
        Affirmed.
We Concur:
