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, 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: Dif. 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 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 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 

- 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 "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: 
&p/zz@&& Justices