No. 92-316 IN THE SUPREME COURT OF THE STATE OF MONTANA



### IN THE MATTER OF THE ESTATE OF BERGER O. MEBUST, Deceased. 

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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: MatthewW. KnierimandFrancis 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, 1992Chief 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: Howdoes representationoccur underMontana 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 Mebust1snieces 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 hersurviving 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 foreach ofMebust'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 consideringthearguments,theDistrict Courtreaffirmed 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 sistersand thechildrenorgrandchildrenof 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 collateralkindred 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 interpretationwithanargumentconcerning the legislative intent and history of 5 72-2-203, MCA. However, Montana has long recognized that where the language of a statute is clearand unambiguous, other rulesof statutoryconstructiondo 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,orchildrenor srandchildrenof a deceased brother

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

are surviving children and grandchildren of Mebust's deceased brothers and sister. Therefore,we concludethe 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 forby 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 samedegreewho left issuewho survivethe decedent, each surviving heir in the nearest degree receiving one shareand the shareof each deceasedperson in the same degree being divided among his issue in the samemanner.Hanson claims the specific provisions of subsections (3) and (4)of 

### 5 72-2-203, MCA,override the abovedefinition of "representation. Relying onher argument concerning legislative intent, she asserts thoseprovisions declare that the childrenor grandchildrenof any deceased brother or sisterwill 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 constructionand 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. Affinned.

### we concur: