No. 90-525 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

IN THE MATTER OF THE ESTATE OF 

MERLE RUDOPLH LIGGETT, Deceased. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Jefferson, 

The Honorable Frank M. Davis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John H. Jardine, Jardine & Grauman, Whitehall, 

Montana; Kenneth W. Gates, Gates & Zeirnantz, P.S., 

Spokane, Washington 

For Respondent: 

W. M. Hennessey, Hennessey and Joyce Law Office, 

Butte, Montana 

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LI i'i " ~d h ,FF,~ : ~-9 ji Submitted on Briefs: August 15, 1991 

Decided: August 27, 1991 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

Plaintiff Lester E. Grady appeals from the judgment of the 

~istrict Court of the Fifth Judicial District for Jefferson County, 

determining that Grady is not a pretermitted heir as set forth 

under 5 72-2-602, MCA. We affirm the District Court. 

The sole issue before the Court is whether the District Court 

erred in its determination that Grady does not qualify as a 

pretermitted heir. 

The decedent, Merle R. Liggett, died on August 20, 1989, at 

the age of 92. His will was admitted to informal probate on 

September 20, 1989. The will was executed on August 14, 1989, six 

days before decedentls death. either that will nor the prior will 

that it revoked acknowledged that the testator had a surviving 

child. 

The decedent did in fact have a surviving child. The 

plaintiff was born of the marriage of the decedent and Jessie May 

Goodell on March 31, 1932, in Dillon, Montana. This birth is 

confirmed by hospital and military records. The father filed for 

divorce in 1936, and custody of the child, Lester E. Liggett, was 

granted to the mother. Sometime after the couplels divorce, the 

child's surname was changed to Grady. 

The record discloses that there was almost no contact between 

the father and son over the succeeding years. However, it is clear 

that the decedent was aware that his son was alive and living in 

Washington as late as 1969, the last time the two saw each other. 
Upon the decedent's death and probate of his will, the 

plaintiff petitioned for a portion of the estate under the 

provisions of d 72-2-602, MCA, the pretermitted child statute. A 

hearing on the matter was held on June 11, 1990. The District 

Court determined that the plaintiff was entitled to succeed to his 

father's estate pursuant to the pretermitted child statute. The 

personal representative of the estate moved for reconsideration. 

On reconsideration, the court determined that it had erred in its 

earlier determination that 5 72-2-602, MCA, applied, and dismissed 

Gradyls petition. This appeal followed. 

The statute at issue in this case, 5 72-2-602, MCA, reads in 

pertinent part: 

Pretermitted child. (1) If a testator fails to provide 

in his will for any of his children born or adopted after 

the execution of his will, the omitted child receives a 

share in the estate equal in value to that which he would 

have received if the testator had died intestate unless: 

(a) it appears from the will that the omission was 

intentional; 

(b) when the will was executed the testator had one 

or more children and devised substantially all his estate 

to the other parent of the omitted child; or 

(c) the testator provided for the child by transfer 

outside the will and the intent that the transfer be in 

lieu of a testamentary provision is shown by statements 

of the testator or from the amount of the transfer or 

other evidence. 

(2) If at the time of execution of the will the 

testator fails to provide in his will for a living child 

solely because he believes the child to be dead, the 

child receives a share in the estate equal in value to 

that which he would have received if the testator had 

died intestate. 

The District Court premised its reconsideration of plaintifils 

status as a pretermitted child on an earlier misreading of the 
statute. On reconsideration, the court noted that the statutory 

language refers to children "born or adopted after the executiontt 

of a will. This is clearly not the case here. The District Court 

was correct when it reconsidered its original decision. 

Plaintiff argues that subsection (2) should also grant him 

pretermitted child status. Plaintiff argues that his father had 

ltemotionally and psychologically killed off his sontt sometime between 

his last visit in 1969 and the drafting of decedent's first will in 

1980. This argument is wholly unsupported by any evidence. There 

is, in fact, contrary evidence that indicated that plaintiffts wife 

had contacted the decedent in his last years in an unsuccessful 

attempt to set up a meeting between father and son. The District 

Court heard the evidence and concluded that none of it indicated that 

the decedent believed his son to be dead. We conclude that the lower 

court correctly determined the plaintiff's status as an heir pursuant 

to 5 72-2-602, MCA. We affirm the decision of the District Court. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1988 Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by its filing as a public document 

with the Clerk of the Supreme Court and by a report of its result to 

Montana Law Week, State Reporter and West Publishing Company. 
We concur: 

Justices /'/