                            NO.    93-109
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1993


IN THE MATTER OF THE ESTATE OF
ROBERT E. MELVIN,
     Deceased.




APPEAL FROM:     District Court of the Second Judicial District,
                 In and for the County of Silver Bow,
                 The Honorable James E. Purcell, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
                 Jo Antonioli, Worden, Thane & Haines, Missoula,
                 Montana
          For Respondent:
                 Robert T. O'Leary, Butte, Montana


                                  Submitted on Briefs:   July 15, 1993
                                              Decided:   November 8, 1993
Justice Fred J. Weber delivered the Opinion of the Court.

     This is an appeal from a Decree of Distribution settling the
estate of Robert E. Melvin.        Carol A. Reeves, one of three heirs to
the estate of Robert E. Melvin,            appeals the order allowing and
settling    the   First      and    Final    Account   of   the   Personal
Representative.     We reverse.
     The issues are restated as follows:
     1.     Did the District Court err in issuing the Decree of
Distribution?
     2.    Did the District Court err in appointing Paul Melvin as
personal representative of the estate?
     3.    Did the personal representative breach his fiduciary duty
to the heirs of the estate?
     Robert E. Melvin died on May 29, 1989.         He was survived by his
three children, Paul Melvin,         Carol Reeves and John Melvin. On
November 9, 1989,       Paul Melvin filed an Application for Informal
Probate    and Appointment of         Personal   Representative   and   was
appointed as personal representative of the estate of Robert E.
Melvin.    Appellant,    Carol A. Reeves (Reeves), claims that she was
under the impression that her brother,             Paul Melvin, had been
appointed personal representative of the estate under a valid will.
On numerous occasions from 1989 until the final account was
presented in 1992, Reeves requested information from Paul Melvin
about the administration of the estate.
     On September 30, 1992, Paul Melvin filed the "First and Final
Account and Petition for Distribution of Estate."           On October 1,

                                       2
1992,    Reeves filed a pro se motion objecting to the final
accounting as being inadequate under § 72-3-1005, MCA, and as not
providing the minimum of information required by Montana law. A

hearing was held on October 30, 1992, at which Reeves' husband

requested that Reeves be given an itemization and breakdown of the

expenses of the estate and the detailed accounting that Reeves had

requested     since   1989.    The     District         Court    ordered   that   an

accounting be furnished to Reeves.                The    personal   representative
provided a check register and bank statements to Reeves on January

25, 1993, along with a copy of the Decree of Distribution entered
by the District Court on January 21, 1993.
        Reeves then retained counsel who appeared on February 1, 1993,

objecting to the First and Final Account and also to the check
register and bank statements as being an insufficient accounting.

No hearing was scheduled in the District Court prior to the running

of the time necessary for filing this appeal.                   Further facts will

be provided throughout this opinion as necessary.

                                       I.

        Did the District Court err in approving the final accounting

and issuing the Decree of Distribution?

        Reeves contends that the personal representative did not

comply with Montana law governing estate administration and closing

and that the District Court erred in approving the incomplete final
accounting and issuing the Decree of Distribution.                   Specifically,

she     claims   that Paul    Melvin        did    not    provide     intermediate

accountings to her when she asked for them during the period of


                                       3
estate    administration   and   that   the   final   accounting   provided    by
Paul Melvin did not provide minimum information about estate

assets, income, expenses and the distribution of the assets.

     Counsel representing the estate of Robert E. Melvin contends

that Paul Melvin has properly accounted for the assets and expenses
of the estate by preparing the Inventory and Appraisement and the

INH-2 form for inheritance tax purposes.              He further argues that
the District Court verified that Reeves had received the Inventory

and Appraisement, Application for Determination of Inheritance Tax

and her share of the distribution of all assets except for her
share of the amount remaining to be distributed after closing the

estate.

      From the information contained in the record, we are unable to

determine what, if any, estate expenses were incurred or paid.                The

Inventory and Appraisement lists total estate assets as $33,268.00.
A copy of the form INH-2 prepared by Paul Melvin detailing estate

expenses is not a part of the record before us.                    The   "final

accountingl'     filed by the Personal Representative states that

property remaining after the payment of debts, claims, taxes, costs

and expenses should be distributed in accordance with the property

as listed in the Inventory and Appraisement on file with the Clerk

of the Court and the balance remaining is to be distributed to the
three heirs as set forth in Exhibit "A" attached to the final

account, which provides as follows:

     ASSETS REMXtNING:

               1982 Mercury                             $ 2,400.OO
               Cash on Hand (plus garage sale)            1,439.oo

                                        4
          U.S. West Refund                                    16.99
          TranSaNeriCa    InSUranCS                          325.00
          New Dimensions Distributors Refund                 297.50
          100 Shares of Prudential Federal
          Savings (Olympus Corporation)                      575.00

                                                         $ 5,053.49
     LIABILITIES:

          Paul M. Melvin (l/3 Paid)                        1,684.49
          Carol A. Reeves (l/3 Unpaid)                     1,684.50
          John M. Melvin (l/3 Unpaid)                      1,684.50
                                                         $ 5,053.49

     Although Reeves was not present at the hearing, her husband
appeared and was questioned by the District Court.                  Because Mr.
Reeves advised the court that the personal representative had not

fully informed Reeves of the estate expenses, the District Court

ordered the personal representative to provide Reeves with 'Ia copy
of the check register or such other           itemization         detailing    the

expenses incurred on behalf of the estate."               The     District   Court

also ordered that the personal representative be discharged upon
payment of remaining amounts due the heirs as set forth in Exhibit

"A" and as quoted above.      Paul Melvin has made arrangements to pay

the amount to John Melvin in monthly installments of $45.00.
Reeves has refused to accept a similar payment plan for her share

of the remaining estate.
     The Decree of Distribution is dated January 21, 1993. On

January 25, 1993, Paul Melvin provided Reeves with a copy of the

check register from one of the bank accounts he used as personal

representative   and   some   bank   statements   from    other    accounts.    On

February 1, 1993, Reeves formally objected to this accounting and


                                       5
to the Decree of Distribution as being improper and premature.
      Section 72-3-1005, MCA, provides:

      Final accounting required to close estate. (1) Before an
      estate    may be    finally   closed  and  the   personal
      representative relieved of his duties and obligations, he
      shall either file with the court or deliver to all
      interested persons an accounting under oath showing the
      amount of money received and expended by him, the amount
      of all claims presented against the estate, and the names
      of the claimants and all other matters necessary to show
      the state of its affairs.
            (2)   Any interested person at any time during the
      course of the administration of an estate may for good
      cause shown require further accountings.
            (3)    If the personal representative is the sole
      residual beneficiary of the estate, no accounting need be
      made.

This section provides that the personal representative must file an
accounting with the court --or deliver the same to all interested

persons--showing the amount of money received and expended by the

personal    representative, all claims presented against the estate

and all other information necessary to show the state of its

affairs.    An exception to this requirement is permitted only when
the personal representative is the "sole residual beneficiary" of

the   estate.   Such is not the case here: Paul Melvin was required to

provide a proper accounting before the estate of Robert E. Melvin

could be closed.

      The District Court ordered as follows:

           3 . That the First and Final Account of the Personal
      Representative is     allowed   and   settled   and  that
      distribution of the remaining assets of the estate, as
      described in Exhibit "A" to the First and Final Account,
      be made by the Personal Representative.
           4. That the Personal Representative shall provide
      Carol A. Reeves with a copy of the check register or such
      other itemization detailing the expenses incurred on
      behalf of the estate.


                                    6
The "First and Final Account and Petition for Distribution of
Estate" does not describe the monies received and expended by the
personal    representative, nor does it describe the claims presented
and paid.     It does not describe the manner of disposition of estate
assets.     While the transcript indicates that Reeves received copies
of the Inventory and Appraisement and the INH-2,         that information
is not sufficient to constitute an accounting.
     The check register and bank statements furnished to Reeves
also are inadequate to constitute a final accounting of assets,
income and expenses and claims.          An estate may not be settled and
a final distribution made until the final accounting is properly
completed.     Section 12-3-1005, MCA, requires the District Court to
make a determination that the final account complies with the
requirements of 5 72-3-1005, MCA, before the estate may be finally
closed and before the personal representative may be relieved of
his duties.
     When proceedings in       the   District   Court   are   of    a   broad
equitable     nature   and the issues      raised on appeal        are mixed
questions of law and fact,      this Court's duty is to review all
questions of fact arising upon the evidence presented in the
record, whether the evidence is alleged to be insufficient or not,
and to determine the same, as well as questions of law.            Daniels   v.
Thomas, Dean & Hoskins, Inc. (1990), 246 Mont. 125, 134, 804 P.2d
359, 364 (citing 3 3-2-204(5), MCA). In Daniels, 804 P.2d at 364,
we stated:
     [W]e will review both questions of law and questions of
     fact but will not reverse the trial court in an equity
                                     7
        case on questions of fact unless there is a decided
        preponderance of the evidence against those findings.

We addressed the standard of review for a mixed question of fact

and law in division of marital property cases in In Re the Marriage
of Danelson (1992), 253 Mont. 310, 317, 833 P.2d 215, 220, and

determined that the standard of review in such equity cases is

whether the court abused its discretion.

        Obtaining [an] equitable distribution will at times
        require the lower court to engage in discretionary action
        which cannot be accurately categorized as either a
        finding of fact or a conclusion of law.             These
        discretionary judgments made by the trial court are
        presumed to be correct and will not be disturbed by this
        Court absent an abuse of discretion by the lower court.
Danelson,    833 P.2d at 220.        The issue before us requires us to

review a determination made by the District Court which cannot be

precisely classed as either a finding of fact or a conclusion of

law.
        The District Court failed to comply with § 72-3-1005, MCA,

which requires the accounting filed with the court to include all
money received and expended by the personal representative and the

amount of all claims presented against the estate as well as the

names of claimants and all other matters necessary to show the

state     of the affairs of the estate.                 The record   contains

substantial evidence of numerous items of income,                expense   and

claims which should have been included in the final account

according    to   §   72-3-1005,   MCA.       We conclude the District Court

allowed the personal representative to settle and close the estate

in this case without the accounting required by             5 72-3-1005, MCA.

We further conclude that the District Court abused its discretion

                                          8
by approving the First and Final Account in this estate and by
entering the Decree of Distribution.
       We hold the District Court erred and abused its discretion by
approving    the   final    accounting      submitted by    the   personal
representative in this case.       We vacate the District Court's order
allowing and settling the final account and ordering distribution
of the remaining assets of the estate as described in Exhibit @qA8V
of the personal representative's final account.
                                     II.
       Did the District Court err in appointing Paul Melvin as
personal representative of the estate?
       Reeves also appeals the informal appointment of Paul Melvin as
personal representative in this proceeding.          She claims that she
was under the impression throughout the administration of the
estate that Paul Melvin was appointed as personal representative in
the will of Robert E. Melvin and that she was unaware that her
father had not prepared a valid will.
       An application      for   informal   appointment of     a personal
representative must conform to the requirements of 5 72-3-202, MCA,
and,   in the case of an intestacy proceeding, must also conform to
the requirements of 5 72-3-204, MCA.        Paul Melvin's Application for
Informal Probate and Appointment of Personal Representative states:
       The heirs designated herein have nominated the applicant
       to serve in their stead as personal representative and
       said nominations have been filed of record in this estate
       proceeding.
We find no nominations by John Melvin or Carol Reeves in the record
for this estate proceeding.        Section 72-3-504(3),    MCA, provides:
                                      9
        When two or more persons share a priority, those of them
        who do not renounce must concur in nominating another to
        act for them or in applying for appointment. If they are
        unable to concur in nominating another to act for them or
        in applying for appointment, the court may appoint any
        qualified person.
It does not appear from the record that the proper procedure for
appointment was followed in this proceeding.          Nonetheless, we need
not address this issue as 5 72-3-503(l), MCA, provides that an
objection to an appointment of a personal representative can be
made & in formal proceedings.
        Although an objection to the appointment of                  a personal
representative is not allowed in informal proceedings, a person
interested in the estate is allowed to petition for the termination
of an appointment of a personal representative "for cause" at any
time.     Section 72-3-526, MCA.
        The Official     Comments to §    72-3-204,     MCA,     explain the
rationale for not allowing objections to appointments of personal
representatives in informal proceedings as follows:
        Forcing one who seeks informal probate or informal
        appointment to make oath before a public official
        concerning the details required of applications should
        deter persons who might otherwise misuse the no-notice
        feature of informal proceedings.    The application is
        available as a part of the public record.            If
        deliberately false representation is made, remedies for
        fraud will be available to injured persons without
        specified time limit . . . .
Clearly,    an appeal from a Decree of Distribution in an informal
estate proceeding is not the appropriate vehicle for an objection
to      irregularities    in   the   appointment      of       the     personal
representative.     Therefore, we decline to rule on the issue whether
the District Court erred in appointing Paul Melvin as personal
                                     10
representative for the estate of Robert E. Melvin.

                                  III.
     Did the personal representative breach his fiduciary duty to

the heirs of the estate?
     No claim for breach of fiduciary duty was before the District

Court and we will not address the issue for the first time on

appeal.

     Reversed and remanded.     The Decree of Distribution entered by

the District Court on January 21, 1993, is vacated and the District
Court is instructed to require the personal representative for this
estate to prepare a proper final accounting in accordance with 5

72-3-1005,    MCA,   to settle the same and to consider any and all
objections to such accounting and distribution in an appropriate

manner.




             Justices



                                   11
Justice Terry N. Trieweiler             dissenting.
        The   majority   opinion violates the rule that we will not place
the District Court in error on the basis of objections raised for
the first time on appeal.              The theory behind the rule is that in
fairness to the parties and the District Court, if one party has an
objection to the procedure followed in the District Court, he or
she has an obligation to bring it to the attention of the other
party and to the District Court so that any error can be cured if
possible without the necessary expense of an appeal and further
delay.        Because there was absolutely no timely objection by the
appellant to any aspect of this estate's administration prior to
the entry of the Court's final decree, I conclude that she waived
any objection she          may   have had to the "First and Final Account and
Petition for Distribution of Estate."
        A review of the actual record in this case suggests just how
unusual the majority's decision is.
        Robert E. Melvin died on May 29, 1989, and his son, Paul, was
appointed personal representative of his estate on November 9,
1989.      On November 9, 1990, an inventory and appraisement, listing
and describing all of the estate's assets,                 was filed in the
District   Court.           It is conceded for purposes of appeal that
appellant received a copy of the inventory and appraisement, along
with the list of estate expenses which was provided for purposes of
determining whether inheritance tax was due.
        On September 30, 1992, nearly three and one-half years after
he applied for informal appointment as personal representative, and

                                            12
nearly three years after his actual appointment, Paul Melvin filed
a first and final account and petition for distribution of the
estate.     Prior to that time, his sister,             Carol,    had neither
appeared in this action nor filed any objection to his appointment
nor his handling of the estate.
       On October 1, 1992,      Carol filed a pro se document entitled
"Motion for an Order to Require an Accounting."           By that document,
she sought "a full and complete accounting of all estate assets."
A list of the estate's assets at the time of the final account are
exactly    what    was   provided in      Exhibit   A    to      the   personal
representative's    petition.    Contrary to assertions in the majority
opinion, there is no record that appellant ever filed an objection
to the final accounting based on the requirements of 5 72-3-1005,
MCA.   Neither is there any indication in the record of the District
Court what Carol's impressions were regarding the existence of a
will or that she at any time requested information from Paul about
his administration of the estate.         After presenting no evidence in
the District Court,      Carol's attorney sought to file a bunch of
correspondence with the Supreme Court.          However, that after-the-
fact evidence was appropriately stricken from the record by order
of this Court dated May 4, 1993.
       The District Court held a hearing to consider the personal
representative's petition on October 30, 1992.             The only witness
who testified at the hearing was the personal representative.
During the hearing, he was questioned at length by his attorney and

the court regarding his disposition of the estate assets.                 After

                                     13
being provided with notice of the hearing, Carol did not bother to

appS3r.    John Melvin, who is Paul and Carol's brother, did appear

and had no objection to the disposition of the estate.

       Neither did Carol appear by an attorney.                          Her husband did

appear and advised the court that he objected to the approval of

the personal representative's petition on the basis that the income

and    disbursements           of   the   estate     had   been   inadequately    accounted

for.    While he had no personal standing to assert an objection, was
never under oath and subject to cross-examination, and was not

authorized by law to represent his wife in this proceeding, this

inadequate and untimely objection is the first indication of any

kind in this record during the three and one-half years since

Robert Melvin's death, that there was any objection to the manner

in which the estate was being handled.

       Under       these       circumstances,        it is not surprising that the

District    Court          expressed      disapproval      of   the   untimely   objection.

However,    in spite of that fact,                   the   personal    representative   was

told to provide Carol with further information about income and

expenses of the estate, and the court gave her ten days from the

date of the hearing within which to file an objection.

       At the time of the hearing, the District Court stated:

            To me, there has never been a question of the
       accounting story.

            YOU have an opportunity to object to the accounting.
       He has ten days. And that has to be by certified mail.
       And we will go from there.

               .   .   .   .



                                                14
          If there is an objection in this regard, I will have
     a hearing on that objection.

     No objection was lodged within the time provided by the court

and the decree was ultimately entered on January 21, 1993, nearly

three months later.

     We do not know what information was provided to Carol, and we

do not know when it was provided.        There simply is no record of any

occurrence after the court hearing until after the court's decree

was entered.

     The court's decree approving the final account of the personal

representative was entered on January 21, 1993, nearly three months

after the hearing on the personal representative's petition.           NO

formal objection was filed by Carol during the intervening period

of time.

     On February :L, 1993, an attorney first appeared as counsel of

record for Carol.     On that same date, an objection to the personal
representative's account was first filed on her behalf.         However,
the certificate of mailing indicates that it was not mailed to the

personal representative until February 18, 1993, one day prior to

Carol's notice of appeal to this Court.

     Contrary to the statement in the majority opinion, there is no

evidence in this record that the personal representative first

provided Carol with a copy of the check register and some bank

statements on January 25, 1993.

     On this record, the majority has taken upon itself to first

strike evidence offered for the first time on appeal, and then rely


                                    15
on it in its opinion.      The majority has decided issues on appeal
that were never raised in an appropriate nor timely fashion in the
District Court.
     At best, this case is precedent for approval of pretty sloppy
and untimely legal work.    At worst, no district court nor personal
representative can close an estate in the future in reliance on the
status of the record at the time the proposed decree is entered.
     For these reasons, I dissent from that part of the majority
opinion   which   sets   aside   the    District   Court's   decree of

distribution.




                                   16
                                        November 8, 1993

                                  CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:


Jo Antonioli, Esq.
Worden, Thane & Haines, P.C.
P.O. Box 4747
Missoula, MT 59806

Robert T. O’Leary
Attorney at Law
40 E. Broadway
Butte, MT 59701

John Melvin
Clyde Park
Clyde Park, MT 59018

                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STATE OF MONTANA
