                                                                                        11/21/2017


                                    DA 17-0173
                                                                                  Case Number: DA 17-0173

            IN THE SUPREME COURT OF THE STATE OF MONTANA

                                   2017 MT 288N



IN THE MATTER OF THE ESTATE OF:

PAUL L. KURTH,

         Deceased.



APPEAL FROM:      District Court of the Eleventh Judicial District,
                  In and For the County of Flathead, Cause No. DP-13-043(A)
                  Honorable Amy Eddy, Presiding Judge


COUNSEL OF RECORD:

           For Appellant:

                  Evan F. Danno, Danno Law Firm, P.C., Kalispell, Montana

           For Appellee:

                  Matthew Hutchison, Ramlow & Rudbach, PLLP, Whitefish, Montana



                                              Submitted on Briefs: September 13, 2017

                                                         Decided: November 21, 2017


Filed:

                  __________________________________________
                                    Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Sinda Puryer (Sinda) appeals from an order of the Eleventh Judicial District Court,

Flathead County, appointing Bruce Barstis (Barstis) personal representative of the Estate

of Paul L. Kurth (Estate). We affirm.

¶3     Paul L. Kurth (Kurth) died in January 2000 at the age of 82. Kurth never married

or had children. He was, however, survived by nine nieces and nephews, including

Sinda, a niece, and Barstis, a nephew. For the last several years of his life, Kurth lived

with Sinda and her husband Marty Puryer (Marty) (together, the Puryers).               On

February 19, 1998, two years before Kurth’s death, Marty handwrote a document entitled

“Instructions and Last Will and Testament of Paul L. Kurth” (Will). Kurth allegedly

dictated the Will to Marty and then signed it. The Will left everything Kurth owned to

the Puryers and appointed Marty as personal representative. When Kurth passed away in

2000, he held a real property interest in mineral rights in eastern Montana. In 2001,

Sinda hired an attorney to administer Kurth’s estate, but did not pursue probate of the

Will at that time.

¶4     Approximately ten years later, an oil and gas company contacted Barstis, wanting

to lease the mineral rights. Barstis retained an attorney and in February 2013 notified all


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of Kurth’s heirs, including Sinda, that the Estate needed to be probated and the mineral

rights distributed. At that time, Barstis offered to be personal representative. In response

to Barstis’s notice, Marty filed a petition to formally probate the 1998 Will. Barstis

challenged the Will, arguing that the time for probate had passed. The District Court

agreed with Barstis, ruling in November 2015 that § 72-3-122(1), MCA, barred probate

of the Will and, accordingly, Kurth died intestate. We affirmed the District Court’s

determination, holding Kurth died intestate and that the Estate should be distributed in

accordance with Montana’s intestacy statutes in In re Estate of Kurth, 2016 MT 188,

¶ 32, 384 Mont. 261, 378 P.3d 1151.

¶5     Thereafter, Barstis filed a petition in District Court to determine heirs, appoint

himself as personal representative, and to supervise administration. Barstis notified all

potential heirs and interested parties of his petition. Sinda was the only potential heir

who objected to Barstis’s petition—she requested the District Court appoint a special

administrator and require bond to secure such performance. On February 16, 2017, the

District Court held an evidentiary hearing on Barstis’s petition, at which both Barstis and

Sinda testified. The District Court subsequently recognized Kurth’s nine nieces and

nephews as the Estate’s heirs and granted Barstis’s petition, appointing him personal

representative and ordering supervised administration. The parties do not dispute the

District Court’s recognition of the heirs. However, Sinda appeals the court’s appointment

of Barstis as personal representative, arguing Barstis’s conflicts of interest preclude him

from being able to fairly administer the Estate. Specifically, Sinda alleges Barstis already

breached fiduciary duties to the Estate by taking money for his personal use. She argues


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Barstis and other heirs previously leased mineral rights and kept the proceeds for

themselves, demonstrating that their interests are contrary to those of the Estate. Thus,

Sinda argues no heir, including Barstis, can be appointed personal representative and that

necessitates the appointment of a special administrator. Barstis responds, acknowledging

that he and some of the other heirs did enter into leases for some of the mineral rights.

He contends, however, that such leases do not present a conflict of interest precluding

him from acting as personal representative.

¶6     We address the issue of whether the District Court correctly appointed Barstis as

the Estate’s personal representative. This Court reviews a district court’s appointment of

a personal representative to determine whether the district court correctly applied the law.

In re Estate of Bennett, 2013 MT 228, ¶ 6, 371 Mont. 270, 312 P.3d 400. Pursuant to

§ 72-3-502(6), MCA, heirs of a decedent have priority in being appointed as personal

representative of an estate. A personal representative is a fiduciary who has a duty to

“settle and distribute the estate of the decedent . . . as expeditiously and efficiently as is

consistent with the best interests of the estate.” Section 72-3-610, MCA. Thus, a district

court can “refuse to appoint a person as personal representative for cause if there is a

conflict of interest between that person’s interests and those of the estate.” In re Estate of

Kuralt, 2001 MT 153, ¶ 19, 306 Mont. 73, 30 P.3d 345 (quoting In re Estate of Peterson,

265 Mont. 104, 108, 874 P.2d 1230, 1232 (1994)).

¶7     As Kurth’s heir, Barstis has priority in being appointed personal representative

over a special administrator. Barstis testified that he understands the fiduciary duties of a

personal representative and is willing to investigate all avenues for recovery of Estate


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assets. Furthermore, review of the record does not reveal a conflict of interest between

the interests of Barstis and the Estate. Instead, Barstis’s and the Estate’s interests are

aligned. The District Court did not incorrectly appoint Barstis as personal representative

simply because he already started to lease the Estate’s mineral rights. Barstis testified he

and the other heirs would repay the Estate if any money was improperly taken from it

under the mineral leases. The District Court did not observe any evidence supporting

Sinda’s contention that the mineral lease transactions were fraudulent. Furthermore, by

ordering supervised administration of the Estate, the District Court ensured Barstis “is

responsible to the court, as well as to the interested parties, and is subject to directions

concerning the estate made by the court on its own motion or on the motion of any

interested party.” Section 72-3-404(1), MCA. Because the record does not demonstrate

a conflict of interest between Barstis and the Estate, we hold the District Court correctly

appointed Barstis as the Estate’s personal representative.

¶8     We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. This appeal

presents no constitutional issues, no issues of first impression, and does not establish new

precedent or modify existing precedent.

¶9     Affirmed.

                                                 /S/ LAURIE McKINNON

We Concur:

/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA


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