No. 81-381 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

IN RE THE ESTATE OF 

RICHARD STANLEY MATYE, Deceased, 

Appeal from: District Court of the Fourth Judicial District, 

In and for the County of Missoula, The Honorable 

Jack L. Green, Judge presiding. 

Counsel of Record: 

For Appellant: 

Tipp, Hoven, Skjelset & Frizzell, Missoula, 

Montana 

For Respondent: 

Datsopoulo.s, MacDonald & Lind, Plissoula, 

Montana 

Submitted on Briefs: March 18, 1982 

Decided: June 7, 1982 

Filed: 

JUN 1 - 19% 
Mr. Justice Fred J. Weber delivered the Opinion of the 

Court. 

The Personal Representative (PR) of the estate of 

decedent Matye appeals from the order of the Fourth Judicial 

District Court, Missoula County, holding that a widow retained 

an undivided half-interest in real property owned jointly by 

the widow and her husband, notwithstanding the possibility 

that the widow had intentionally killed her husband. We 

affirm the District Court. 

The PR of Matye's estate presents the following questions 

for review: 

(1) Whether a joint tenant who feloniously and intentionally 

kills the other joint tenant retains an undivided halfinterest in the jointly-held property. 

(2) Whether, if an interest in jointly-held property 

is retained by the slayer, a constructive trust should be 

imposed for the benefit of decedent's heirs. 

At the time of this appeal, deliberate homicide charges 

were pending against the wife, charging that on February 20, 

1981, decedent Matye was shot and killed by his wife, as he 

slept. 

On April 27, 1981, the District Court heard the petition 

of decedent's father for adjudication of intestacy, determination 

of heirs and appointment of PR. The wife agreed to the 

appointment of the decedent's father as PR on the condition 

that the District Court supervise the administration of the 

estate. She asked the court to order the sale of the jointlyheld property and "make available to [her] a one-half share 

of the proceeds of that sale, with the determination as to 

the disposition of the remaining one-half share awaiting the 

outcome of her trial." She emphasized her need for funds 
"to secure the best possible defense." The PR opposed any 

payment of proceeds to the wife. On May 4, 1981, the District 

Court ordered the sale of the real property, and further 

ordered that the proceeds be placed in a trust account for 

the estate of Richard Matye pending the court's determination 

of the respective rights of the parties. 

After considering the arguments and briefs, on June 5, 

1981, the District Court ordered that after the sale of the 

jointly-held property, upon application of the wife, the PR 

should deliver to the wife one-half of the sale proceeds, including 

principal and interest. The PR appeals from that portion of 

the June 5, 1981, order. 

We are not concerned in this appeal with the remaining 

one-half of the proceeds from the sale of the jointly-owned 

property. 

The PR argues that the District Court relied upon 

section 72-2-104(2), MCA, and failed to apply section 72-2- 

104(1), MCA, which has not yet been construed by this 

Court. The statute provides: 

"72-2-104. (1) A surviving spouse, heir, 

or devisee who feloniously and intentionally kills the decedent is not entitled to 

any benefits under the will or under this 

chapter, and the estate of decedent passes 

as if the killer had predeceased the 

decedent. . . 

"(2) Any joint tenant who feloniously and 

intentionally kills another joint tenant 

thereby effects a severance of the interest 

of the decedent so that the share of the 

decedent passes as his property and the 

killer has no rights by survivorship. This 

provision applies to joint tenancies in real 

and personal property, joint accounts in 

banks, savings and loan associations, credit 

unions, and other institutions, and any other 

form of co-ownership with survivorship incidents. 'I 
The PR maintains that these provisions are inconsistent and 

that this Court should reconcile them by construing them 

against the blameworthy party. He argues that the wife 

should be treated as having predeceased decedent; thus the 

entire interest in the jointly-held property should be found 

to have passed to Richard Matye by survivorship and vested 

in his estate. According to the PR, allowing the wife to 

keep half the proceeds of the sale rewards her wrongdoing, 

contrary to section 72-2-104(1), MCA, by permitting her to 

benefit from her destruction of the possibility that the 

husband would survive her and become sole owner of all the 

property. 

We disagree. The factual analysis must take place as 

of the moment of the death of the husband. Immediately 

prior to such death, the husband and wife were the owners as 

joint tenants with rights of survivorship in the real property. 

It should be noted that the right of survivorship exists by 

virtue of the grant in the deed itself. Section 70-20-310, 

MCA. That right of survivorship, which normally allows the 

survivor to take full title to the jointly-owned property, 

exists under the deed grant and is not in any way related to 

the estate of the deceased which passes by the law of intestate 

succession or under the law of wills. 

A joint tenancy in real property may be severed during 

lifetime by a conveyance on the part of a joint tenant. 

Such a conveyance is termed a severance. By section 72-2- 

104(2), MCA, the Montana legislature has provided that the 

felonious and intentional killing of a joint tenant effects 

a severance of the interest of the decedent. As further 

stated in the statute, the effect of the severance is that 

the share of the decedent, one-half in this case, passes as 
the property of the decedent and the killer has no right of 

survivorship. While there have been extensive arguments 

made in other states because of the absence of statutes, our 

statute is clear. If it is ultimately determined that the 

wife feloniously and intentionally killed her husband, then 

under section 72-2-104(2), MCA, a severance took place at 

the moment of death, resulting in a one-half interest being 

retained by the wife and the remaining one-half interest 

passing as the property of the decedent husband. 

Section 72-2-104(1), MCA, then clearly describes the 

treatment to be given to the estate of the decedent. If the 

wife is found to have feloniously and intentionally killed 

the husband, then the wife is not entitled to any portion of 

the estate of the deceased, and the estate passes as if the 

wife had predeceased the decedent. The result of this 

statute is that if the wife is found to have feloniously and 

intentionally killed the husband, the one-half interest in 

the property which would have passed by the right of survivorship 

instead passes as a part of the estate of the decedent, 

excluding the killer. 

The effect of section 72-2-104(1) and (2), MCA, is to 

provide that where a joint tenant feloniously and intentionally 

kills another joint tenant, the killer may not benefit by 

virtue of the right of survivorship provision in the joint 

tenancy deed, and that the killer also may not participate 

in the estate of the decedent passing under the laws of 

testate and intestate succession. 

This conclusion is consistent with two factually similar 

cases decided by this Court prior to the adoption of the 

Uniform Probate Code. In Sikora v. Sikora (1972), 160 Mont. 

27, 499 P.2d 808, and In re Cox's Estate (1963), 141 Mont. 583, 

380 P.2d 584, this Court determined that a joint tenant who 

killed the other joint tenant was entitled to retain his 
interest in the jointly-held property. The Court relied 

upon the principle that the wrongdoer should not take advantage 

of his own wrong and held that the killer was not entitled 

to the survivorship share of the property. 

The PR now urges this Court to extend the above principle, 

and hold that, because the wife might have predeceased the 

husband and been entitled to none of the jointly-held property, 

she cannot benefit from her wrongful act by retaining her 

half-interest in the property. 

We do not view the wife's retention of her half-interest 

as a benefit resulting from decedent's murder. 

The wife's interest in the jointly-held property vested 

with the creation of the joint tenancy. She had the right 

to convey her interest and sever the joint tenancy at any 

time. Barrett v. Ballard (1980), Mont. , 622 P.2d 

180, 37 St.Rep. 2038. This was not a situation where the 

wife could succeed to ownership by will or intestate succession. 

She already owned a half-interest in the property. We 

decline to deprive her of that interest on the speculative 

basis suggested by the PR. We find that the wife obtained 

no concrete benefit as a result of killing her husband, and 

is entitled to retain her half-interest in the jointly-held 

property. 

The PR argues in the alternative, that if the wife is 

entitled to a severance and half-interest in the jointlyheld property, she should hold that property subject to an 

involuntary, constructive trust for the benefit of decedent's 

heirs. The PR relies upon section 72-20-111, MCA, which 

provides for the imposition of an involuntary trust when 

one "gains a thing by . . . wrongful act." 
We do not find that the severance of the joint tenancy 

in any way constituted a gain by the widow and hold that 

section 72-20-111, MCA, is not applicable. Nor does section 

72-2-104(2), MCA, provide for the imposition of a constructive 

trust under these circumstances. The District Court correctly 

held that while Montana law requires the imposition of a 

constructive trust on the murdered decedent's interest, for the 

benefit of the decedent's heirs, the slaying results in a 

severance of the joint tenancy with the survivor retaining 

the other undivided one-half interest. 

Affirmed. 

We Concur: 

f-