No. 13618 

IN THE SUPREP4E COURT OF THE STATE OF MONTANA 

1977 

IN THE MATTER OF TEE ESTATE 

OF HELEN HARMON BREWINGTON, Deceased. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable Nat Allen, Judge presidina. 

Counsel of Record: 

For Appellant: 

Julio Elorales argued, Missoula, Montana 

For Respondents: 

Glen Neier argued, and John V. Potter appeared, 

White Sulphur Springs, Montana 

Submitted: -. May 18, 1977 

Filed: 
Mr. Justice Daniel J. Shea delivered the Opinion of the Court. 

Lawrence rew wing ton appeals from an order of the district 

court, lleagher County, denying his petition to amend a determination 

of heirs to include him as an heir of decedent, Helen Harmon Brewington. 

Raymond Brewington died intestate in the 1950's. His 

wife, Helen Harmon Brewington, survived him. Raymond had several 

brothers and sisters, but under the laws of intestate succession 

Helen inherited the entire estate. Helen did not remarry and died 

intestate September 12, 1975. Several cousins survived her. During 

the probate of Helen's estate, her cousins were listed as heirs in 

a petition for adjudication of intestacy. At the time of Helen's 

death several brothers and sisters of her deceased husband Raymond 

were still living. One of them, Lawrence Brewington, filed a petition in Helen's estate proceedings asking the district court to 

amend the determination of heirs, claiming he was one of her next 

of kin under Montana's laws of succession. Because of his claim he 

asserted he had the right to notice of the adjudication of intestacy. 

The district court ruled he was not next of kin under 

Montana's laws of succession and was therefore not entitled to 

notice of the probate of Helen's estate. 

We agree. 

Lawrence does not contend he is entitled to inherit all 

of Helen's estate, to the exclusion of her cousins. Rather, he 

contends under the common law doctrine of "ancestral succession", 

he is entitled to inherit that portion of her estate which came to 

her when her husband Raymond died. He contends he should be allowed 

to trace this property. 

The sole issue here is whether Lawrence rew wing ton, as 

the brother of Helen Brewington's predeceased husband, ~aymond 
Brewington, is "next of kin" under section 91A-2-103, R.C.M. 1947, 

and therefore entitled to inherit part of Helen Brewington's estate. 

Under the common law doctrine of ancestral succession, 

property reverted to the line of family from which property was 

descended or devised. Because "next of kin" is not defined in the 

Montana version of the Uniform Probate Code, and the doctrine of 

ancestral succession has not expressly been abrogated by statute or 

overruled by court decision, Lawrence argues that collateral relatives of a predeceased spouse should be included among next of kin 

as to property which descended from that spouse. 

Lawrence refers this Court to annotations under former 

Section 91-403, R.C.M. 1947, (repealed Laws 1974) which governed 

succession to an intestate estate. It is important to note, however, 

that none of the cases cited under this statute held that relatives 

by affinity, other than a spouse, could inherit from an intestate. 

In fact, the laws of Montana indicate the contrary. 

In the earliest territorial laws of Montana, it is true 

relatives of a predeceased spouse inherited by law the estate of a 

decedent who died intestate leaving no relatives of his own. Sec. 

254, Cod. Stat. 1871, p. 362. Even under that statute, however, 

cousins of an intestate fell under the category of "paternal or 

maternal kindred" and preempted the rights of the relatives of the 

predeceased spouse. That statute was expressly repealed by Sec. 

558, Laws of 1877, p. 370. 

All later statutory enactments indicate "next of kin" 

or "kindred" was never intended to include relatives by affinity 

as those who would inherit under the laws of intestate succession. 

In 1877, the laws of succession included for the first time the 

words "next of kin". Sec. 534, p. 365, Sixth Clause, read: 

"If the decedent leave no issue, nor husband, 

nor wife, and no father, nor mother, nor brother, 

nor sister, the estate must go to the next of 
kin, in equal degree, excepting that when there 

are two or more collateral kindred in equal 

degree, but claiming through different ancestors, 

those who claimed through the nearest ancestors 

must be preferred to those claiming through an 

ancestor more remote * * *." 

"Kindred" was then defined in terms of ancestors, and 

therefore, blood relatives. Sec. 538 and Sec. 539, Laws of 1877, 

pp. 366-367, provide: 

"Sec. 538. The degree of kindred is established 

by the number of generations, and each generation 

is called a degree. 

"Sec. 539. The series of degrees forms the line; 

the series of degrees between persons who descend 

from one another, is called direct or lineal consanquinity; and the series of degrees between 

persons who do not descend from one another, but 

spring from a common ancestor, is called the 

collateral line, or collateral consanquinity." 

It is significant that in none of these succession statutes is there reference to relatives by affinity. Sec. 543, Laws of 

1877, the original statute regarding blood line descent, in fact 

preferred whole blood relatives to half-blood relatives: 

"Sec. 543. Kindred of the half blood inherit 

equally with those of the whole blood in the 

same degree, unless the inheritance came to the 

intestate by descent, devise, or gift of some 

one of his ancestors, in which case all those 

who are not of the blood of such ancestor must 

be excluded from such inheritance." 

A notable exception to the preference to blood relatives 

in the scheme of inheritance is the right of adopted children to 

inherit in the same manner as natural children. However, this 

right was created especially by statute and did not exist previously 

under common law. 

The 1877 statutes on intestate succession were reenacted 

in essentially the same form (sections 91-403, 91-407 through 91- 

411, R.C.M. 1947) and were effective up to the adoption of the 

Montana Uniform Probate Code in 1974. Even the new code incorporates 

much of the same language, including section 91A-2-103, R.C.M. 1947, 

which reads in pertinent part: 
"Share of heirs other than surviving spouse. 

The part of the intestate estate not passing to 

the surviving spouse under section 91A-2-102, or 

the entire intestate estate if there is no surviving spouse, passes as follows: 

" (5) 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 

(2) 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." 

A simple reading of this statute indicates relatives by affinity are 

not explicitly included as "next of kin" under this statute. The 

new code, Title 91A, does not include provisions regarding "kindred". 

In absence of such provisions, this Court adopts the interpretation 

of "kindred" under the former laws. 

In a case supporting this restricted definition, In re 

Bernheim's Estate, 82 Mont. 198, 208, 266 P. 378, 57 A.L.R. 1169, 

Anno., 5 ALR3d 715, 717, the Court held that the word "relatives" 

in a will included only relatives by blood unless words to the contrary are expressed: 

"The word 'relatives' has two meanings: (1) 

an enlarged meaning which includes all persons 

who are related in any way, by consanquinity 

or affinity, lineal and collateral relatives; 

(2) a restricted meaning which is confined to 

such relatives as are heirs, under the law of 

succession. It is the universal holding that, 

when used in a will, the word is presumed to 

mean relatives in the restricted sense, unless 

a contrary intention is apparent from the context of the will." 82 Mont. 205. 

Although Bernheim revolved around the wording of a will, it did 

confine "relatives * * * under the law of succession" to those 

related to a decedent by consanquinity and not affinity, and therefore, is pertinent here. 

Cases cited in support of the argument for the rights 

of blood relatives of a predeceased spouse are based on statutes 
to that effect, and in at least half of the cited jurisdictions, 

these statutes have been repealed. The trend is definitely towards 

eliminating the rights of such relatives. 

Lawrence correctly states the "law favors one's own 

blood relatives as the natural object of one's bounty". He does 

not allege, however, that he was entitled to priority over his brother's wife on the death of his brother 20 years ago, and by statute, 

Raymond's "bounty" passed in full to Helen at that time. Raymond's 

estate should not be open to new claims 20 years later. 

Lawrence also argues that in equity less distant relatives through marriage should receive the benefit of an estate over 

more distant cousins by blood. In this connection, this Court 

recognizes the general comments of the Uniform Probate Code, 8 U.L.A. 

Probate--Intestate Succession, pp. 322, 323: 

"While the prescribed patterns may strike 

some as rules of law which may in some cases 

defeat intent of a decedent, this is true of 

every statute of this type. In assessing the 

changes it must therefore be borne in mind that 

the decedent may always choose a different rule 

by executing a will." 

Moreover, as the district court stated in its denial of 

Lawrence's request, if the laws of intestate succession work to the 

detriment of certain classes of individuals, it is for the legislature, and not the courts, to rectify. 

We conclude that blood relatives of a predeceased spouse 

are not next of kin of the spouse last to die, and Lawrence has no 

claim to a portion of Helen Brewington's estate. 

While we do not discuss the argument that assets from 

Raymond's estate are no longer identifiable, we note in most cases 

it would be extremely unlikely they would be identifiable after a 

passage of 20 years. 

We affirm the district court order. 
We Concur: 

Chief Justice