No. 13836 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

SHELLEY G. BURR (nee EGGERT) 

Plaintiff and Respondent, 

DEPARTMENT OF REVENUE OF THE 

STATE OF MONTANA, 

Defendant and Appellant. 

Appeal from: District Court of the Sixth Judicial District, 

Honorable Jack D. Shanstrom, Judge presiding. 

Counsel of Record: 

For Appellant: 

Robert W. Corcoran argued, Helena, Montana 

For Respondent: 

Jack W. Burnett argued, Rillings, Montana 

Submitted: December 8, 1977 

Decided: JfiN 3 0 1978 

Filed: JRN f 9 1978 
Mr. Acting-Chief Justice John Conway Harrison delivered the Opinion 

of the Court. 

The Department of Revenue of the State of Montana appeals 

from the judgment of the District Court, Park County. Judge W. W. 

Lessley ruled section 91-4414, R.C.M. 1947, as amended by the 

Montana legislature in 1973, applicable to the case and the correct statute to apply. Plaintiff was thereby entitled to recover 

the refund sum of $2,409.13. 

The facts are not in dispute. Plaintiff, the sole surviving heir of Joyce and Robert Eggert, filed for a refund of inheritance tax paid by the estate of Joyce Eggert attributable to property 

held in joint tenancy with right of survivorship by Robert Eggert 

and Joyce Eggert. Joyce Eggert died August 14, 1972. Robert 

Eggert died August 15, 1972. Upon Joyce's death the property held 

in joint tenancy was transferred to her husband, Robert. This 

property was then transferred upon Robert's death to the sole surviving heir, Shelley G. Burr. Inheritance taxes were paid by 

Robert Eggert's estate on August 21, 1973, in the amount of $7,501.19. 

Plaintiff filed for a refund of inheritance tax paid on August 21, 

1973, in the amount of $2,409.13 by the estate of Joyce Eggert 

attributable to property held in joint tenancy with right of survivorship by Robert Eggert and Joyce Eggert. The District Court 

ruled section 91-4414, as amended, was applicable. Plaintiff was 

thereby entitled to a refund of $2,409.13. From this ruling, the 

Department of Revenue appeals. 

The question presented is whether the tax accrued prior to 

the amendment of section 91-4414, so as to be unaffected thereby, 

or whether the tax had not yet accrued and thus, section 91-4414, 

as amended, was applicable in determination of the tax. 

Section 91-4414(2), R.C.M. 1947, as amended in 1973, 

states: 
" * * * Any child of the decedent shall be entitled 

to credit for so much of the tax paid by the wife 

or husband as applied to any property which shall 

thereafter be transferred by or from such husband 

or wife to any such child, provided the husband or 

wife does not survive said decedent to exceed ten 

years." (Emphasis added.) 

Section 91-4414(2), R.C.M. 1947, before the 1973 amendment 

stated: 

" * * * Any child of the decedent shall be entitled 

to credit for so much of the tax paid by the widow 

as applied to any property which shall thereafter 

be transferred by or from such widow to any such 

child, provided the widow does not survive said 

decedent to exceed ten years." (Emphasis added.) 

The 1973 amendment allows a credit for inheritance taxes 

when the wife predeceases the husband. The prior law did not. The 

1973 amendment became effective on July 1, 1973, pursuant to the 

general rule as to when new legislative enactments become effective. 

Section 43-507, R.C.M. 1947. 

The Department of Revenue contends section 91-4414 as in 

effect at the time of Robert Eggert's death (1972) controls. The 

District Court therefore erred by applying this statute as amended 

in 1973 and granting the refund of $2,409.13. We agree. 

An inheritance tax accrues at the same time the estate vests, 

that is, upon the death of the decedent. All questions concerning 

the tax must be determined as of the date of decedent's death. The 

right of the state to an inheritance tax vests immediately upon the 

decedent's death, although at that time the state may not know the 

amount of the tax. 42 Am Jur 2d, Inheritance, Estate and Gift 

Taxes, S241. This Court stated in In re Clark's Estate (1937), 105 

Mont. 401, 424, 74 P.2d 401, 114 A.L.R. 496: 

" * * * we are committed to the rule that upon 

death all of the property of the deceased * * * 

vests immediately * * *. The right of the state 

to an inheritance tax likewise vests at the same 

moment. * * * " 
See also: In re Estate of Hetland (1975), 166 Mont. 122, 531 P.2d 

367, 369; In re Hosova's Estate (1963), 143 Mont. 74, 387 P.2d 305, 

The right of the state to an inheritance tax clearly vests 

at the time of death. Likewise, the law in effect on that date is 

applied in determining the extent of that right. State ex rel. 

Blankenbaker v. District Court (1939), 109 Mont. 331, 334, 96 P.2d 

936 (reversed in part); In re Hyde's Estate (1949), 92 Cal.App.2d 

6, 206 P.2d 420, 425; Sloan v. Calvert (Tex. 1973), 497 S.W.2d 125, 

127; In re Werner's Estate (1958), 107 Ohio App. 468, 160 N.E.2d 

315, 316. Decedent, Robert Eggert, died on August 15, 1972. The 

state's right to an inheritance tax vested on that date according 

to the law in effect as of that date. 

The District Court's determination of the inheritance tax 

according to section 91-4414, as amended in 1973, amounts to a 

retrospective application of the 1973 amendment. The District 

Court subjected the state's right to an inheritance tax to an 

amendment which was not in effect until after the state's rights 

had vested. This is contrary to established principles of Montana 

law. 

Section 12-201, R.C.M. 1947, specifically states that no 

law contained in any of the codes or other statutes of Montana is 

retroactive unless expressly so declared. The foundation for this 

presumption was set by the Court in Sullivan v. City of Butte (19221, 

65 Mont. 495, 498, 211 P. 301, when it stated: 

"While our Constitution does not forbid the 

enactment of retrospective laws generally, it 

is a rule recognized by the authorities everywhere that retrospective laws are looked upon 

with disfavor. It is a maxim said to be as 

old as the law itself that a new statute ought 

to be prospective, not retrospective, in its 

operation. * * * The maxim has its foundation 

in the presumption that the legislature does 

not intend to make a new rule for past transactions and every reasonable doubt will be 

resolved against a retrospective operation. * * *" 
See also: Williams v. Wellman-Power Gas, Inc. (1977), Mon t . 

, 571 P.2d 90, 34 St.Rep. 1232, 1235; Penrod v. Hoskinson (1976), 

- Mont . , 552 P.2d 325, 33 St.Rep. 705, 708; Dunham v. Southside National Bank of Missoula (1976), 169 Mont. 466, 548 P.2d 

1383. 

There is nothing in section 91-4414, as amended in 1973, to 

suggest the legislators intended that the statute, as amended, be 

applied retrospectively to estates of decedents dying before its 

effective date. It is clear that if the legislature had intended 

this amendment to be retrospective, it could easily have so stated. 

In the past, the legislature has specifically stated a retrospective 

intent in the inheritance tax area. See, section 91-4403, R.C.M. 

1947. The language found in section 91-4403 indicates awareness 

of the legislators that unless they specifically stated otherwise, 

the inheritance tax statute they were enacting would apply only 

to the estates of decedents dying after the statute's effective 

date. 

The legislators in amending section 91-4414 could have used 

language similar to that found in section 91-4403 had they wanted 

their amendment to apply to estates of decedents dying before its 

effective date. They did not do so. Therefore, the amendment must 

be applied prospectively only. 

The District Court in finding for plaintiff relied upon 

State Dept. of Highways v. Olsen (1975), 166 Mont. 139, 146, 531 

P.2d 1330. The circumstances and holding in Olsen are not on point 

with the issues before this Court. That case involved a statute allowing recovery of necessary litigation costs in a condemnation 

proceeding. The statute became effective while the Olsen condemnation action was pending. The Court in Olsen allowed the recovery 

of litigation costs even though the condemnation case had been 

instigated before the statute became effective. The recovery did 
not amount to a retrospective application of the new statute. 

Olsen's right to recover costs did not arise and vest until after 

the new statute had become effective. Consequently, the new 

statute was being applied prospectively to a right that had vested 

after its effective date. 

The case at hand is distinguishable from Olsen. Here, the 

state's right to inheritance tax vested before the statute, as 

amended in 1973, became effective. Whereas in Olsen, the right 

to recover litigation costs vested after the statute became effective. 

The judgment of the District Court is reversed. The refund 

of $2,409.13 allowed by the District Court is denied. 

/ 

We Concur: 

/ 

I a 

Hon. ~onald.~. ~cPhillips, District Judge, sitting in place 

of Mr. Justice Haswell.