                                NO. 89-084
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1989




IN THE MATTER OF THE ESTATE OF
GERALD W. BARBER, Deceased.




                                                                       -- .
APPEAL FROM:    District Court of the Tenth ~udicial~istrict,
                In and for the County of Fergus,
                The Honorable Peter Rapkoch, Judge presiding.

COUNSEL OF RECORD:
         For Appellant:
                ~ h i l l i pR. McGimpsey, Billings, Montana
         For Respondent:
                Donald E. ~ o n i s h ,~ewistown,Montana



                                    submitted on briefs:       June 8, 1989
                                      Decided: September 14, 1989

Filed:


                                    Clerk
Mr. 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 ~istrict Court, 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 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.
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 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 tine 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.
The Farm 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
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 ~hyliss 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.
The Final Account(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 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. ~ o n i s h ,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 ~istrictCourt
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.
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 administration of the estate that are not included in the
order of December 14, 1988, issued by the ~istrictCourt.
The contention of the personal representative is that the
order of the ~istrictCourt 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 $ 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 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, 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 5 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 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 the hearings
(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
a probate proceeding is much the same as issues raised by 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 consideration by us. In like manner, as to issues
not raised before the District Court and now raised on appeal
(there are some) we will follow the usual appellate rule that
unless the issue is raised 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 Court and 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
Objectors as follows:
     1.   id the District Court err and abuse its
     discretion by allowing the August 5, 1988 final
     account of the personal representative, Margaret A.
     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 ~istrict Court 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 Gerald W. Barber by
    the personal representative, the estate's attorney,
    and the estate's accountants?
     The general statements of issues foregoing do little to
inform the Court with specificity of the contentions of the
Objectors.   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 as well as
to questions of law. With that statute in mind, we proceed
to consider the issues we 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 ~istrict Court at the same time concluded that the
proportional value of the specific devises for abatement
purposes would 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 representative    and
her legion of professional advisers have failed to take      all
steps reasonably necessary for the management, protection    and
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 of management,
protection and preservation of the estate.
     The District Court found that the abatement statute, §
72-3-901, MCA, applied because the residue of the estate and
the interest accrued was insufficient to pay all expenses and
disbursements.   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 to be 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
full distribution of the property 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 the proportions were wrongly 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
ordinary expenses 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 accordance with 5 72-25-404, MCA. The
apportionment of abatement is in accordance with 5 72-3-901,
MCA. These statutes relate to two different subjects and, as
in this case, do not necessarily coincide.     We uphold the
proportions decided by the District Court.
     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
specifically devised 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 the Objectors.
     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.
Payment - -
        of Fees; Repayment - Loans
                           of
     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. ~ o n i s has 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 representative and 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 the payments were improper without 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's
duty 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 creditors of the estate and were approved.
     There isn't any doubt in this case that the personal
representative, the widow of the decedent, made loans to the
estate. The loans were necessary because the payments on the
farm contract were not coming in, federal and state taxes had
to be paid, and other expenses made the loans necessary. The
District Court eventually found that she had made loans
totalling $14,633.00 to the estate, and that she was entitled
on those loans to receive interest of $4,730.15 to February
1, 1987, plus $4.01 per day thereafter until paid.
     Objectors contend that because this was a supervised
administration, such payments should not have been made
without a prior order from the ~istrictCourt. 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 the prior order of the court. As the personal
representative in brief points out, under S 72-3-613 (18),
MCA, the personal representative has the power to pay 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.e claims.   Section 72-1-103(4), MCA, states
that "claims" include liabilities of the estate and "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. The personal representative has 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 set out in 5 72-3-633, MCA. The part payment of those
fees on December 30, 1987, was not improper in this case.
     We do not find any conflict of interest or violation of
ethics by either the personal 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 any way adversely the administration of the
estate, and were just claims against the estate for which
there was a right of eventual payment 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, flagrant acts of conflict of interest, self-dealing
and arrogant selfishness," but there is absolutely no
substance to such charges.
Settling the Personal Representative's Final Accounts
     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 accountants were correct and
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
representative before ascertaining that the Federal Internal
Revenue Code was complied with.
     The Objectors shotgunned twelve claimed issues under
this caption, which we will 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 to be 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.
     The money 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 20 percent. 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 65 days from
December 31, 1986, which under federal regulations could be
construed as having been distributed before December 31,
1986. The objections of the Objectors made use of the 65 day
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 expiration of a
reasonable time for completion of administration and when 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 shall be 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 in probate for more than four years. By the end of
1986, all income producing property had been distributed and
the amount held back by the personal representative was 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 that was 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 from counsel for the Objectors.
      (2) Whether the Internal Revenue service form 1041s
filed on behalf of the estate of Gerald W. Barber "trust" for
the years 1987 and 1988 was a false and fraudulent income tax
return?
     In completing reports for income tax purposes after
December 31, 1986, the estate utilized form 1041s which is
normally used by trusts and fiduciaries but which had a blank
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 government and that these were 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,
received by him during his lifetime, belonged to the decedent
to do with it as he wished. This was the item, as reported
earlier, that the decedent used before his death, to purchase
an annuity in joint tenancy with his wife. No probate court
has the power to reverse that transaction or 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 failure of 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 the
proper beneficiary.    By failing to do so, the personal
representative did 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 separate account 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 that person deserved.
     (5) Whether the 1982 Federal and 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 his wife, 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
not bound to allocate any of that income to her.
     (6) Whether the undocumented loan by Margaret A. 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 1982 Federal and State income taxes was not improper.
The ~istrict Court found a valid loan necessary for the
payment of income taxes and that the same was a proper burden
of the estate. There is no basis for this contention.
     (7) Whether the failure of the personal representative
to properly consider the 1982 crop insurance proceeds due to
her 25 percent ownership in the Senef farm land was a
distortion of income and expense.
The Objectors fail to show any 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 been made to the estate when it was necessary for
the estate to borrow money to pay necessary taxes and
expenses and it awarded interest based on statutory amounts.
Again, this purported issue has no substance.
     (10) Whether the estate can take an 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 keep a 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 the attorney fees paid to Donald E. ~ o n i s h
is a proper deduction for the following reasons:
     (a) Because the entire amount of Mr. Ronish's fee
     was allocated to the estate, even though he served
     the personal representative in      her   individual
     capacity throughout this probate.
     (b) Because part 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 fee based 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 to be a proper deduction from the assets
of the estate.
     (12) Whether    the estate properly      calculated its
"distributable net income" deduction for its short period tax
year ending December 31, 1986.        By failing to make a
distribution of specifically bequested monies to Jerry F.
Barber, Barbara A. Snooks and Ted L . Barber in the amount of
$4,000.00 from the Twin Butte Ranch which was received by the
estate on December 29, 1986, when the aforementioned persons
were by operation of a Personal ~epresentative's Deed, 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
$4,000 represented the estate's share of the 1982 income from
the Twin Butte Ranch and so was not an item that went with a
deeded distribution. "Segregated crops do not go with a deed
to the land," Respondent answered.
     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. In most 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 the method of handling this
estate.     The District Court refused to prolong            the
proceedings on that premise and so does this Court.           We
affirm as against the appeal of 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
rendered extraordinary services in the conduct of this estate
for which he should receive further compensation beyond his
contract. We so find, and reverse the District Court on 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
contract does not preclude the award of additional fees where
the services rendered to the estate by the attorney are
extraordinary in nature and reasonably necessary for the good
of the estate.
     In the circumstances here, the following consisted of
extraordinary services to the estate:
The Personal ~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, as personal representative. Pursuant to
the will, Margaret A. Barber was appointed personal
representative on December 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 of August 29, 1983 for appointment of 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 the balance 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 interest to December 1, 1986. In order to facilitate
the acceptance of the offer, the personal representative
offered to waive 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
representative to waive her portion, was everything that they
would have received under the contract if it had been paid
out by the buyer during the lifetime of the widow.
     The petition for approval of the proposed offer further
sets out undisputed facts at the time, that the farm was
losing profitability, a farm recession was 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 through their counsel.
     After the court approved the offer on December 29, 1986,
the Objectors filed a Rule 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
~istrictCourt denied the Rule 59(g) motion, and denied the
Rule 12(f) motion on the grounds that the latter rule applied
only to pleadings and not to briefs.
The ~ i n a l
            Accounts
     We have chronicled in the first part 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.
The Appeals
      In addition, there have been four appeals to this Court,
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 of Barber (1985), 216 Mont.
26, 699 P.2d 90.
     Two subsequent appeals to this Court were dismissed.
The present appeal has no substance as the foregoing portion
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 actions of the Objectors.
     The blame for the detrimental objections to the progress
of an ordinary estate can not be laid entirely at the feet of
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
rendered by the attorney for the estate require an 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 the personal representative,
and providing for distribution and 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 ~istrictCourt 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
