No. 87-41
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
WADE J. DAHOOD, Personal Representative
of the Estate of ROSE M. McEWAN, Deceased,
Plaintiff and Respondent,
-vs-
MARY ANN FRANKOVICH, ROSE SCHLOSSER, HELEN
DASOVICH, STEVE FRANKOVICH, MARY ANN RILEY,
CATHY PARKS, CHARLOTTE CUTLER, JOANNE SIRGINSON,
et al.,
Defendants and Appellants.
APPEAL FROM: District Court of the Third Judicial District,
In and for the County of Deer Lodge,
The Honorable Robert Boyd, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John L. McKeon argued, Anaconda, Montana
Cok & Wheat; Michael E Wheat argued, Bozeman, Montana
Leonard J. Haxby argued, Butte, Montana
Johnson, Skakles & Kebe; Greg J. Skakles argued,
Anaconda, Montana
For Respondent:
Poore, Roth & Robinson; Richard Orizotti argued,
Butte, Montana
Knight, Dahood, McLean & Everett; David M. McLean,
Anaconda, Montana
Howard Hedrick, Portland, Oregon
- - --
Submitted: October 1, 1987
Decided: December 3, 1987
Filed: D i f . 9-1987
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
This is an appeal from a declaratory judgment entered by
the District Court, Third Judicial District, County of Deer
Lodge, holding that Mary Cepuran, Joza Vinski and Karl
Vinski, were entitled to equal one-third shares of the
intestate residue of the estate of Rose M. McEwan, per capita
and not by right of representation. We affirm.
Rose M. McEwan died on May 9, 1984. At the time of her
death she left a valid will in which, after certain bequests,
she left the entire residuary estate to her half brother,
Joseph Stokan. The residuary legatee, Joseph Stokan,
predeceased Rose M. McEwan, and Joseph left no issue who
could take the share of a deceased devisee under 5 72-2-512,
MCA. Accordingly, because the residuary estate of the
decedent Rose M. McEwan is not effectively disposed of by her
will, the residuary estate passes under the laws of intestate
succession. Section 72-2-201, MCA.
Rose M. McEwan herself left no surviving issue, parent,
brother, sister, children nor grandchildren of a deceased
brother or sister. There are 30 claimants to her residuary
estate whose relationships to the decedent Rose M. McEwan we
take from an agreed statement of facts to be as follows:
Third degree:
Karl Vinski and Joza Vinski, half-brothers,
and Mary Cepuran, half-sister to Kata Vinski
Stokan, deceased. Rose M. McEwan is the daughter
of Kata Vinski Stokan, deceased.
B
Fourth degree:
Ana Prpic (represented in this matter by Mary
Ann Johnson) daughter of Rose Vinski, deceased.
F.ose Vinski was the full sister of Kata Vinski
Stokan, the mother of Rose M. McEwan, deceased.
Fourth degree :
Ann Angela Laslovich Holleran, Mary Ann
Laslovich Puccinelli, and Joseph Matthew Laslovich
are the daughters and son of Michael Laslovich,
deceased. Michael Laslovich was the full brother
of Frank Laslovich, deceased, who was the father of
Rose M. McEwan, decedent.
D
Fourth degree:
Helen V. Palakovich, Ansela A. Davis, and Anna
M. Thompson are daughterse of Frank ~aslovich,
deceased. This Frank Laslovich was the
half-brother of Frank Laslovich, deceased, who was
the father of Rose M. McEwan, decedent.
E
Fifth degree:
Raymond Hess, Robert Hess, George Hess, Marian
Greene and Betty Wyant are the sons and daughters
of Mary Hess, deceased. Mary Hess was the daughter
of Frank Laslovich, deceased. This Frank Laslovich
was a half-brother of Frank Laslovich, deceased,
who was the father of Rose M. McEwan, decedent.
F
Fifth degree:
Mary Ann Frankovich, Helen Frankovich
~asovich; Rose Frankovich Schlosser, and Steve
Frankovich are the daughters and son of Helen
Laslovich Frankovich, deceased. Helen Laslovich
Frankovich was the daughter of Blazina Laslovich,
deceased. Blazina Laslovich was the half-brother
of Frank Laslovich, deceased, the father of Rose M.
McEwan, decedent.
G
Sixth degree:
Margaret Zucco Snow is a daughter to Margaret
Frankovich Zucco, deceased, who was the daughter of
Helen Laslovich Frankovich, deceased. Helen
Laslovich Frankovich was the daughter of Blazina
Laslovich, deceased. Blazina Laslovich was the
half-brother of Frank Laslovich, deceased, who was
the father of Rose M. McEwan, decedent.
H
Sixth degree:
Mary Ann Frankovich Riley, Joann Frankovich
sirginson, Charlotte ~rankocich Cutler, Ruth
Frankovich Mix, Nancy Frankovich Connors, Kathleen
Frankovich Parks, Jane Frankovich Hawthorne,
Patricia Frankovich Morrison, John Frankovich and
Gary Frankovich are the daughters and sons of Mike
Frankovich, deceased. Mike Frankovich was the son
of Helen Laslovich Frankovich, deceased. Helen
Laslovich Frankovich was the daughter of Blazina
Laslovich, deceased. Rlazina Laslovich was a
half-brother of Frank Laslovich, deceased, who was
the father of Rose M. McEwan, decedent.
I
Application ---
of the half blood statute
Ana Prpic is a full first cousin of the decedent Rose M.
McEwan, since Ana's mother Rose Vinski was a full sister of
Kata Vinski Stokan, the mother of Rose M. McEwan. Ana Prpic
contends, therefore, that as a full first cousin, she is a
half-blood relative of the decedent Rose M. McEwan, and that
Karlo Vinski, Joza Vinzki, and Mary Cepuran, as half uncles
and half aunt to the decedent can only be quarter blood
relatives. Thus Ana contends that although the relationship
of the half uncles and half aunt is that of third degree, and
that of a first cousin is fourth degree, nonetheless the half
blood statute should not apply to the half uncles and half
aunt since they are not of the half blood. Ana Prpic makes
this contention to avoid the application of 5 72-2-21.1, MCA,
which provides:
Kindred - -
of half blood. Relatives of the half blood
-
inherit the same share they would inherit if they -
were of the whole blood.
Ana Prpic is joined in this contention by Angela
Laslovich Holleran, Mary Ann Laslovich Puccinelli and Joseph
Matthew Laslovich, who state they too are full first cousins
of the deceased Rose M. McEwan. Their father, Mike Laslovich
was a full brother of Frank Laslovich, the father of Rose M.
McEwan.
Ana Prpic contends that the term "half blood" describes
the relationship between children who have one conunon parent.
Genschorck v. Blumer (Kan. 19321, 14 P.2d 722, 725. She
argues that to be half-blood kindred requires establishing a
blood line relationship to the decedent produced by either
one of the decedent's parents or through the decedent's
grandparents. This results in her statement that the 26
claimants who are not full first cousins are only "quarter
blood" relatives because they trace a bloodline to Rose M.
McEwan through one set of her great grandparents. It is thus
that Ana Prpic asks us to interpret S 72-2-211, MCA, in its
reference to "the half blood. "
Ana Prpic's argument is founded principally on the
Official Comments to the Uniform Probate Code. In the
Official Comments to Part 2, Intestate Succession, it is
stated:
(2) Inheritance by collateral relatives is limited
to grandparents and those descended from
grandparents. This simplifies proof of heirship
and eliminates will contests by remote relatives.
Official Comments to Part 2, Montana Code Annotated, Volume
6, Title 72, page 18 (1986).
Again, in the Official Comments to S 72-2-203, MCA, it
is stated that "in line with modern policy, [it] eliminates
more remote relatives tracing through great grandparents."
Montana Code Annotated, Part 2, S 72-2-203, Volume 6, Title
72, page 20 (1986).
The elemental contention of Ana Prpic therefore is that
the term "half blood" is to be interpreted as she contends,
and that this Court should follow in such an interpretation
of the Official Comments to the Uniform Probate Code.
Regardless of the Official Comments, however, it is
clear that the Montana Legislature, in adopting the Uniform
Probate Code, did not incorporate the limitations to
intestate distribution contended for by the full first
cousins. Section 72-2-203, MCA, provides:
Share of heirs other than surviving spouse. The
part o F t h e intestate estate not passing to the
surviving spouse under 72-2-202, or the entire
intestate estate if there is no surviving spouse,
passes as follows:
(1) to the issue of the decedent; if they are all
of the same degree of kinship to the decedent, they
take equally, but if of unequal degree, then those
of more remote degree take by representation;
(2) if there is no surviving issue, to his parent
or parents equally;
(3) if there is no surviving issue or parent, to
the brothers and sisters and the children or
grandchildren of any deceased brother or sister, by
representation;
( 4 ) if there is no surviving issue, parent,
brother, sister, or children or grandchildren of a
deceased brother or sister, to the next of kin in
equal degree, except that where there are two or
more collateral kindred in equal degree but
claiming through different ancestors, those who
claim through the nearer ancestors must be
preferred to those claiming through an ancestor
more remote.
Section 72-2-203 springs from (5 2-103 of the Uniform
Probate Code; however, subdivision (4) of S 72-2-203, above,
is different from subdivision (4) of 5 2-103 of the Uniform
Probate Code. Montana did not adopt subdivision (4) of S
2-103, Uniform Probate Code. If it had, in the situation of
the decedent Rose M. McEwan, her residuary estate would be
divided half to the descendants of her paternal grandparents,
and half to the descendants of her maternal grandparents.
Under 5 72-2-203(4), MCA, above, the residuary estate of
Rose M. McEvlan, decedent, must go to the "next of kin in
equal degree." The term "next of kin" is not defined in our
probate code but we have earlier determined that the term
means blood relatives, and not relatives by affinity. Estate
of Brewington (1977), 173 Mont. 458, 568 P.2d 133.
Decrees of kindred are computed in accordance with S
72-11-101, -105, inclusive, MCA. Under S 72-11-105, MCA,
uncles and aunts are related to the decedent in the third
degree, and full first cousins in the fourth degree.
Here, the uncles and aunt, though related in the third
degree, are of the half blood. It is at this point that S
72-2-211, MCA, takes over which provides that relatives of
the half blood inherit the same share they would inherit if
they were of the whole blood.
The adoption by the legislature of 72-2-211, MCA,
represents a change from the statute preceding the Montana
Uniform Probate Code as to relatives of the half blood.
Former § 91-411, R.C.M. (1947) provided:
Kindred of the half blood inherit equally with
those of the whole blood in the same degree, unless
the inheritance comes to the intestate by descent,
devise, or gift of someone of his ancestors, in
which case all those who are not of the blood of
such ancestors must be excluded from such
inheritance.
It is significant that former S 91-411, R.C.M. (1947),
recognized that the term "half blood" could be applied to
heirs without limitation as to a third or fourth degree.
Finally, however, the provisions of § 72-2-203(4), MCA, must
be read in conjunction with S 72-11-105, MCA. In computing
the degrees of kindred, the count is made by generations from
the claimant to the common ancestor and then to the decedent.
Section 72-11-105, MCA, does not require a "set" of common
ancestors in determining the degree of kindred.
The argument in this case therefore of the full first
cousins that the term "half blood" in S 72-2-211, MCA,
includes only whole blood uncles and. aunts of the decedent
and whole blood first cousins of the decedent must fail.
First cousins, whether of the whole or the half blood, are
not of the same degree of kindred as uncles and aunts of a
decedent.
Paternal and Maternal Division
The full cousins Mary 1,aslovich Puccinella, Ann Angela
Laslovich Holleran, and Joseph Matthew Laslovich point out
that under the judgment of the District Court the residuary
estate of decedent Rose M. McEwan is divided among heirs from
the decedent's mother's side of the family whereas the other
claimants descend from the father's side of the family and
that to exclude the claimants from the father's side in the
distribution of the residuary estate is patently unfair.
These cousins look to subdivision ( 4 ) of S 72-2-203,
MCA, and that portion of it which states that "where there
are two or more collateral kindred in equal degree but
claiming through different ancestors . . .." Their argument
runs that all of the persons here claim through different
ancestors who are in equal degree, in other words, the mother
and father of Rose M. McEwan. Since the mother and father
are each dead, half of the estate descends to the issue of
the father and half to the issue of the mother. They contend
that this is the only explanation for subsections (1) and (3)
of 5 72-2-203, providing for distribution by representation
whereas distribution of (2) and ( 4 ) under the statute provide
for division per capita.
If we were to give effect to the argument made by these
first cousins, the result would be to restore by
interpretation what was refused by the legislature, that is
the provisions of the Uniform Probate Code, 5 2-103, which
call for a division between the paternal and the maternal
sides. Since the legislature refused to adopt that kind of
distribution in this situation, we must adhere to §
72-2-203(4), MCA, and determine that the residual estate in
this case goes to the next of kin in equal degree, per
capita. We see nothing in Estate of Gertrude Brown (1972),
158 Mont. 413, 492 P.2d 914, nor Estate of Ethel E. Evans,
(Mont. 1985), 704 P.2d 35, 42 St.Rep. 1047, leading to a
different conclusion.
I11
- Capita and Representation
Per
Mary Ann Frankovich and the remaining claimants listed
in paragraph F above are related to the decedent in the fifth
degree of kindred. On appeal, their counsel argues that
under S 72-2-203, MCA, a proper interpretation requires a
distribution of the intestate estate to all next of kin by
representation and that such representation is provided for
in 5 72-2-204, MCA. Counsel further argue from the official
comments to the Uniform Probate Code under S 72-2-203, MCA,
which stated that "in general the principle of representation
is adopted as the pattern which most decedents would prefer."
Montana Code Annotated, Part 2, Vol. 6, at 20 (1986).
First, representation is not allowed unless it is
"called for by this code" 5 72-2-204, MCA, and
representation is not called for in subdivisions (2) or (4)
of § 72-2-203, MCA.
Moreover, the term "next of kin" in subdivision (4) of 5
72-2-203 is limited by the following language "in equal
degree. "
We interpret that language to mean that in cases where
subdivision (4) applies, the intestate estate goes to the
next of kin, per capita if necessary, in the nearest equal
degree. That interpretation is in accord with many of the
states, and further in accord with Official Comments
respecting the reasons for the intestate provisions: the
intestacy rule "attempts to reflect the normal desire of the
owner of wealth as to the disposition of his property at
death" and so the prevailing patterns of wills were looked to
in framing the statutory provisions; in addition intestacy
rules and procedures give persons of modest means an
effective and not prohibitorily expensive estate plan
provided by law. Montana Code Annotated, Part 2, Vol. 6, at
18 (1986).
Similarly, briefs filed in behalf of the claimants in
paragraph D above, related in the fourth degree, and
paragraph E, related in the fifth degree, and those on behalf
of the sixth degree relatives contend for distribution by
right of representation, and also join in the "quarter blood"
argument which we have discussed above. What we have said
foregoing is adequate to meet their contentions.
IV
Conclusion
We determine in this case that the District Court
properly interpreted the provisions of Montana's Uniform
Probate Code in determining the residuary heirs of the
decedent Rose M. McEwanls intestate estate. The declaratory
judgment thereupon entered is hereby affirmed.
JUStlCe
We Concur: /
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Justices