dissenting:
I agree with the reasoning of the dissent of Justice Hunt. I believe additional comments are appropriate.
The key holding of the majority opinion is the following conclusion: We conclude the will clearly and unambiguously demonstrates that Dorothy Morris intended and directed the amount of the residue of her estate to be calculated, divided and distributed after payment of the state inheritance taxes.
In substance the majority concludes that the residue is to be calculated, divided and distributed after payment of the Montana inheritance taxes. That conclusion ignores the factual necessity of both dividing and calculating before distribution of the residue can be accomplished. Federal estate tax is levied against the entire estate and therefore can be paid and deducted prior to any computation of the residue. In contrast, the Montana inheritance tax is levied upon the share passing to each of the twenty-seven individual residuary devisees.
We agree that the personal representative can be properly required to pay the just debts, funeral expenses, and expenses of administration as well as the estate taxes before any computations are required with regard to the residue. All of those can be paid without any division of the residuary estate or calculation. However, when it comes to the Montana inheritance tax, that no longer is true. Under the Montana inheritance tax, the residue must be divided and the tax computed before the Montana inheritance tax can be paid.
I suggest that the only reasonable method to be followed is that after payment of the just debts, funeral expenses, expenses of administration and the federal estate tax, the personal representative must make the following division and calculations:
1. Divide the amount on hand in the estate at that point so that one-half will be listed as going to the Thompson grandchildren, and the remaining one-half to the Morris grandchildren.
2. Divide the one-half going to the Thompson grandchildren into twenty equal parts. Next calculate the Montana inheritance tax which is due from each of such twenty grandchildren.
3. In a similar manner, divide the remaining one-half between the seven Morris grandchildren. Then calculate the Montana inheritance tax due from each of those seven grandchildren, taking into consideration both the exemption and the tax rates.
I suggest that it is only after a division and calculation as above *378described that the Montana inheritance taxes can be paid. Once those Montana inheritance taxes have been calculated, such taxes properly may be paid by the estate. Distribution then would follow to each of the twenty-seven residuary legatees based upon the share attributable to each less the Montana inheritance tax paid for that person.
I concur in the conclusion by Justice Hunt that essential fairness requires the type of division described above and adopted by the District Court. It is unfair to require a tax to be paid by persons who are not actually receiving the property as is proposed by the majority opinion. Such action is not contemplated by the statute.
I would affirm the District Court.
JUSTICE TRIEWEILER concurs in the foregoing dissent.