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,-vsMARY ANN FRANKOVICH,ROSE SCHLOSSER, HELEN DASOVICH, STEVE FRANKOVICH,MARY ANN RILEY, CATHY PARKS,CHARLOTTECUTLER, JOANNE SIRGINSON, et al., Defendants and Appellants.

APPEAL FROM: District Court of the Third JudicialDistrict, In and for the County of Deer Lodge, TheHonorable Robert Boyd, Judgepresiding.

COUNSEL OF RECORD:

ForAppellant:
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: 

### Dif.

### 9-1987

ClerkMr. Justice John C. Sheehy delivered the Opinion of the Court.

This isan 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 ofRose M. McEwan,per capita and notby right of representation. We affirm. Rose M. McEwan died on May 9, 1984. At the time ofher death she leftavalid will inwhich,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 RoseM. McEwan isnot effectively disposed ofby her will, the residuary estatepasses 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 ofKata Vinski Stokan,deceased. B Fourthdegree: 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 Fourthdegree: HelenV. Palakovich,Ansela A. Davis,andAnna M. Thompson are daughterseof 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 ofMary Hess,deceased. Mary Hesswas 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 Fifthdegree: 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 toMargaret Frankovich Zucco,deceased,who was the daughterof 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 andGary 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 decedentRose 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 thehalf uncles and half aunt is that of third degree,and that ofa first cousin is fourthdegree,nonethelessthehalf 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, whichprovides: Kindred 

### -- of halfblood. Relatives of thehalf blood inherit the same share they would inherit if they 

## - - were of thewholeblood.

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 RoseM. McEwan. Their father,Mike Laslovich

was a full brother of Frank Laslovich, the father of Rose M. McEwan. Ana Prpic contends that the term "halfblood" describes the relationship between childrenwho have one conunonparent. Genschorck 

### v. Blumer (Kan. 19321, 14 P.2d 722, 725. Sheargues 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 ofher great grandparents. It is thus that Ana Prpic asks us to interpret S 72-2-211,MCA, in its reference to "thehalf 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) Inheritanceby 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 OfficialComments to the Uniform ProbateCode. 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 oFthe 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 ofkinship to the decedent,they take equally, but if of unequal degree, then those ofmore remote degree takeby 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 grandchildrenof any deceased brother or sister,by representation; (4) if there is no surviving issue, parent, brother, sister, or children or grandchildrenof 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 thedescendantsofher 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 "nextof kin" is not defined in our probate code but we have earlier determined that the termmeans blood relatives,and not relativesby affinity. Estate of Brewington (1977),173Mont. 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 fourthdegree. 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 theywere of thewholeblood. 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 intestateby 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 thedegrees ofkindred, the count ismade by generations from the claimant to the common ancestor and then to thedecedent. Section 72-11-105, MCA, does not require a "set" of common ancestors in determining the degree ofkindred. 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 decedentand 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,aslovichPuccinella, Ann Angela Laslovich Holleran, and Joseph Matthew Laslovich point out that under the judgment of the District Court the residuary estate ofdecedent RoseM. McEwan isdivided among heirs from the decedent's mother's side of the familywhereas 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 ancestorswho are in equal degree, in otherwords, 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 fatherand 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 fordivisionper capita. Ifwe were to give effect to the argument made by these first cousins, the result would be to restore by interpretationwhat 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 ofdistribution 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 Per Capita and Representation 

### - 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 "ingeneral theprinciple of representation is adopted as the pattern which most decedentswould prefer." Montana CodeAnnotated, 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 "nextof 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: theintestacy rule "attempts to reflect the normal desire of the

owner of wealth as to the disposition of his property at death" and so theprevailing patterns ofwills 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 fifthdegree,and those onbehalf of the sixth degree relatives contend for distribution by rightof representation,and also join in the "quarter blood" argument which we have discussed above. What we have said foregoing is adequate tomeet 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. McEwanlsintestate estate. The declaratory judgment thereupon entered ishereby affirmed.


# / JUStlCe We Concur:

# &p/zz@&& Justices