No. 92-316 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN THE MATTER OF THE ESTATE OF 

BERGER O. MEBUST, Deceased. 9EC a - 1 

APPEAL FROM: District Court of the Twelfth Judicial District, 

In and for the County of Hill, 

The Honorable John Warner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Matthew W. Knierim and Francis Gallagher, Gallagher, 

Archambeault & Knierim, Glasgow, Montana 

For Respondent: 

Warren C. Wenz and Kirk D. Evenson, Marra, Wenz, 

Johnson & Hopkins, Great Falls, Montana 

Keith Maristuen, Bosch, Kuhr, Dugdale, Martin & 

Kaze, Havre, Montana 

Waldo Spangelo and James Spangelo, Spangelo Law 

Firm, Havre, Montana 

Filed: 

Submitted on Briefs: November 5, 1992 

Decided: December 1, 1992 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

Kristina Hanson, a niece of decedent Berger 0. Mebust, appeals 

from an order of the District Court for the Twelfth Judicial 

District, Hill County, concerning distribution of Mebust's estate. 

We affirm. 

The issue is: How does representation occur under Montana law 

when the only surviving heirs of an intestate decedent are the 

children and grandchildren of predeceased brothers and sisters? 

Berger 0. Mebust died intestate in February 1991. He left no 

surviving spouse or parents and had no children. He had three 

brothers, Pete, Hans, and Einar, and one sister, Lillian, all of 

whom predeceased him. 

Pete had two children, both of whom are deceased, one leaving 

three children who survive and another leaving four children who 

survive. Hans had three children, all of whom survive. Einar had 

one child who survives. Lillian had five children, four of whom 

survive and one who is survived by a child. 

In October 1991, the District Court entered an order indicating its intent to divide the estate into eleven equal shares, one 

for each of Mebust1s nieces and nephews. It further indicated its 

intent to distribute a one-eleventh share to each of the eight 

surviving nieces and nephews and to divide the one-eleventh share 

of each of the three deceased nieces and nephews among his or her 
surviving children. The court allowed any interested person to 

argue why a different distribution should be made. 

Four of the heirs, including appellant Kristina Hanson, 

petitioned the court to divide the estate into four equal shares, 

one for each of Mebust's brothers and sister, and to distribute the 

estate to the issue of such deceased sibling based on such 

sibling's one-fourth share. Under that scheme of distribution, 

Hanson, as the only child of ~inar, would receive a one-fourth, 

rather than a one-eleventh, share of the estate. 

After considering the arguments, the District Court reaffirmed 

its decision that under Montana's statutes, the distributable 

estate should be divided into eleven shares. The court certified 

its decision pursuant to Rule 54(b), M.R.Civ.P., to allow for 

immediate appeal to this Court. 

Section 72-2-203, MCA, the applicable intestate succession 

statute, provides: 

The part of the 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: 

(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. 

The District Court ruled that subsection (3) applies in this case. 

Hanson argues that both subsection (3) and subsection (4) apply. 

Hanson supports her interpretation with an argument concerning 

the legislative intent and history of 5 72-2-203, MCA. However, 

Montana has long recognized that where the language of a statute is 

clear and unambiguous, other rules of statutory construction do not 

apply. See, e.g., State ex rel. Swart v. Casne (1977), 172 Mont. 

By its clear and unambiguous terms, subsection (4) of g 72-2- 

203, MCA, applies only if there are no surviving "issue, parent, 

brother, sister, or children or srandchildren of a deceased brother 

or sister." In this case, as the District Court pointed out, there 

are surviving children and grandchildren of Mebust's deceased 

brothers and sister. Therefore, we conclude the District Court was 

correct in applying only subsection (3). 

The District Court applied the definition of lrrepresentation" 

provided at 5 72-2-204, MCA: 

If representation is called for by this code, the estate 

is divided into as many shares as there are surviving 

heirs in the nearest degree of kinship and deceased 

persons in the same degree who left issue who survive the 

decedent, each surviving heir in the nearest degree 

receiving one share and the share of each deceased person 

in the same degree being divided among his issue in the 

same manner. 
Hanson claims the specific provisions of subsections (3) and (4) of 

5 72-2-203, MCA, override the above definition of "representation. 

Relying on her argument concerning legislative intent, she asserts 

those provisions declare that the children or grandchildren of any 

deceased brother or sister will take the share their parent would 

have taken had the parent survived the decedent. 

We have stated that clear statutory language controls over 

other rules of statutory construction and that subsection (4) does 

not apply in this case. subsection (3) does not define "by 

representation," but the clear language of 5 72-2-204, MCA, does, 

and applies wherever "representation is called for by this code." 

Hanson's argument therefore fails. 

Applying 5 72-2-204, MCA, to this case, the nearest degree of 

kinship in which there are surviving heirs is that including 

Mebust's nieces and nephews. Therefore, we hold that the District 

Court was correct in dividing the estate into equal shares for the 

nieces and nephews and, where the niece or nephew predeceased 

Mebust, dividing that person's share among his or her issue. 

Af f inned. 
we concur: