No. 81-381 INTHE SUPREME COURT OF THE STATE OF MONTANA 1982

INRE 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:

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# -19%Mr. Justice Fred J. Weber delivered the Opinion of the Court.

The PersonalRepresentative (PR)of the estate of decedentMatye appeals from the order of the Fourth Judicial District Court,Missoula County,holding that a widow retained

an undivided half-interest in realproperty owned jointly by thewidow and her husband, notwithstanding the possibility that thewidow had intentionally killed her husband. We affirm the DistrictCourt. 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,decedentMatye was shotand killed by his wife, as he slept. On April 27, 1981, the District Court heard the petition of decedent's father for adjudicationof intestacy, determination of heirs and appointment of 

### PR. Thewife 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 "makeavailable to [her] a one-half share of theproceeds 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 thewife. On May 4, 1981, the District Court ordered the sale of the real property, and further ordered that theproceeds be placed in a trust account for the estate of Richard Matye pending the court'sdetermination 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 thewife one-half of the sale proceeds, including principal and interest. The PR appeals from thatportion 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 yetbeen construedby this Court. The statuteprovides: "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 decedentpasses as if the killerhad predeceased the decedent. 

# .. "(2) Any joint tenantwho feloniously and intentionally kills another joint tenant thereby effects a severanceof 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, jointaccounts in banks, savings and loan associations, credit unions, and other institutions,and any other form of co-ownership with survivorship incidents.'IThe PRmaintains that these provisions are inconsistentand that this Court should reconcile them by construing them against the blameworthy party. He argues that thewife 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 survivorshipand 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 surviveher and become sole owner of all the property. We disagree. The factual analysismust 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 realproperty. 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 realproperty may be severed during lifetimeby 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 legislaturehas provided that the felonious and intentionalkilling of a joint tenant effects

a severanceof 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

### theproperty of the decedent and the killerhas no right of survivorship. While therehave 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 interestbeing 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 thewife 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 resultof this statute is that if thewife is found to have feloniously and intentionally killed the husband, the one-half interest in theproperty which would have passed by the right of survivorship insteadpasses 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 killermay notbenefit by virtue of the right of survivorshipprovision in the joint tenancy deed, and that the killer alsomay notparticipate in 

### the estate of the decedentpassing under the laws of testate and intestate succession. This conclusion is consistent with two factually similar

casesdecided by this Courtprior to the adoption of the Uniform Probate Code. In Sikorav. Sikora (1972),160Mont. 27, 499 P.2d 808,and In reCox's Estate (1963),141Mont. 583, 380P.2d 584, this Court determined that a joint tenant who killed 

### the other joint tenantwas entitled to retain hisinterest 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 PRnow urges this Court to extend the above principle, and hold that, because thewife might have predeceased the husband and been entitled to none of the jointly-held property, she cannotbenefit from her wrongful actby 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'smurder. Thewife'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. Thiswas not a situationwhere the wife could succeed to ownershipby 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 thewife obtained no concrete benefit as a result of killing her husband,and is entitled to retainher 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 reliesupon section 72-20-111,MCA, which provides for the impositionof an involuntary trustwhen

one "gains a thing by 

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# .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 tenancywith the survivor retaining the other undivided one-half interest. Affirmed.

We Concur: f-