No. 96-654 IN THESUPREME

COURTOFTHESTATEOFMONTANA 1996

IN THEMATTEROFTHEESTATEOF NINAJ. GARLAND,Deceased,

Appellant.

APPEALFROM: District Court of the First Judicial District,

In andfor the County of Lewis &Clark, TheHonorable Dorothy McCarter, Judge presiding.

COUNSELOFRECORD:

For Appellant: Dennis G. Loveless, Attorney at Law, Helena, Montana For Respondent: Carl Hatch; Small, Hatch, Doubek &Pyfer, Helena, Montana

Filed: . "'7 Submitted onBriefs: October 17, 1996 Decided: -November 15, 1996

Clerk'Justice Karla M. Gray delivered the Opinion of the Court

AnsonFredenberg, the personal representative of the Estate of Nina J. Garland, deceased (the Estate), appeals from the order of the First Judicial District Court, Lewis and Clark County, distributing the assets of the Estate. Wereverse and remand. The Estate raises the following issues onappeal: 1. Did the District Court err in concluding that the surviving spouse whokilled the deceased spouse is entitled to a one-half interest in the proceeds from the sale of the real property which heandthe decedent ownedasamatter of law? 2. Did the District Court err in failing to settle and distribute all of the Estate's assets? Nina J. Garland (Nina) andLarry Garland (Larry) were married in Alaska in 1986. Sometime thereafter, Nina and Larry movedto Montana andpurchased ahouse in Helena, Montana, asjoint tenants with the right of survivorship. Nina died testate onOctober 22, 1993. Larry subsequently was convicted of deliberate homicide for her death and is presently incarcerated in the Montana State Prison. Twominor daughters survive Nina; oneof them, Emily Garland, is also Larry's daughter. Nina left awill providing for anequal division of her assets between her two daughters. Nina's brother, Anson Fredenberg (Anson), was appointed personal representative of her Estate and Nina's will was admitted to informal probate. Pursuant to a stipulation between the Estate andLarry, the house in Helena whichLarry and Nina owned in joint tenancy was sold and the proceeds

placed in aspecial trust account to bedistributed bythe District court.Ahearing onthe final distribution of the Estate's assets was held in September of 1995. The Estate and Larry disagreed regarding the proper distribution of the proceeds from the sale of Nina and Larry's house, a Saab automobile and various items of personal property which Larry contended were his premarital property. In its decision andorder, the District Court concluded that the Estate and Larry are each entitled to fifty percent of both the proceeds from the sale of the house and any personal property "which Larry cannot prove to have been obtained by him prior to the marriage and used by him exclusively during the marriaye[;]" the court included the Saab automobile which was titled in Nina's namein the Estate. TheEstate appeals. 1. Did the District Court err in concluding that Larry is entitled to aone-half interest in the proceeds from the sale of the real property which heandNina ownedas amatter of law? Larry andNina purchased the real property at issue asjoint tenants with the right of survivorship and, as aresult, each of them owned equal shares in the property. See § 70-l-307, MCA. Ordinarily, upon the death of one joint tenant, the decedent's ownership interest ceases andthe jointly-held property immediately passes to the surviving joint tenant asamatter of law. Voyele v. Estate of Schock (1987), 229Mont. 259, 263, 745P.2d 1138, 1140. The District Court recognized that, under §72-2-813(3)(b), MCA, Nina and Larry's interests in the real property were 3transformed into tenancies in commonupon Nina's death resulting

from Larry's felonious act. Relying onthe Official Commentsto § 72-2-813(3) (b), MCA, however, the court interpreted § 72-2- 813(3) (b), MCA,as severing only Nina's interest in the property and allowing that interest to pass under her will, with Larry retaining his equal interest with no right of survivorship. Asa result, the District Court concluded that the Estate andLarry each retained a one-half interest in the value of the property as a matter of law. The Estate argues on appeal that the District Court's conclusion waserroneous. It contends that both Nina andLarry's interests were severed and transformed into tenancies in common pursuant to §72-2-813(3) (b), MCA,and, therefore, that tenancy in

commonprinciples apply. The Estate argues that, under those principles, it was entitled to attempt to prove that Nina contributed moreto the property than Larry did, with the potential result that the Estate would receive alarger share of the proceeds from the sale of the property. Wereview a district court's conclusions of law to determine if the court's interpretation of the law is correct. Loney v. Milodragovich, Dale &Dye, P.C. (1995), 273Mont. 506, 510, 905 P.2d 158, 161 (citation omitted). The resolution of this case turns, initially, onthe proper interpretation of 5 72-2-813(3) (b), MCA, a statute we have not previously construed. Section 72-2-813(3), MCA, provides, in pertinent part:

The felonious and intentional killing of the decedent: 4(b) severs the interests of the decedent andkiller

in property held by them at the time of the killing as joint tenants with the right of survivorship and transforms the interests of the decedent andkiller into tenancies in common. Our role in interpreting statutes is simply "to ascertain and declare what is in terms or in substance contained therein.

. .'I Section l-2-101, MCA. Wemust pursue legislative intent if possible. See § l-2-102, MCA. Where the intention of the legislature canbedetermined from the plain meaning of the words used, our role in interpreting the statute is at anend. Clarke v. Massey (1995), 271Mont. 412, 416, 897P.2d 1085, 1088. Wherethe language is clear and unambiguous, the statute speaks for itself andwewill not resort to legislative history or other extrinsic

meansof interpretation. Clarke, 897P.2d at 1088. Section 72-2-813(3) (b), MCA, clearly, unambiguously and in plain language mandates that upon the intentional and felonious killing of onejoint tenant by another, the interests of both the decedent andthe killer are severed andtransformed into tenancies in common. Thus, the killer is divested of the benefits of ajoint tenancy--the right to survivorship andownership of "equal shares" in the property. See§70-l-307, MCA. In interpreting 5 72-2-813(3)(b), MCA, the District Court relied on the Official Comments to § 72-2-813(3) (b), MCA, in determining that the legislature's purpose in enacting the statute "was to preclude the co-tenant's killer from gaining benefit from his criminal conduct." Onthat basis, the court concluded that only the decedent's interest is severed andthe killer loses only 5his right of survivorship. Since the language used in § ?2-2-

813(3)(b), MCA, is clear, unambiguous and plain, however, the court's role in interpreting the statute wasat anendandit could not properly resort to legislative history or other extrinsic means of interpretation. See§§l-2-101, l-2-102, MCA;Clarke, 897P.2d at 1088. Moreover, in its decision andorder, the District Court stated that "the interest of the decedent is severed so that her share passes as her property and her killer has no right of survivorship." The District Court's statement appears to incorporate language from § 72-2-104(2), MCA (1991), the predecessor to 572-2-813(3)(b), MCA,which provided: Anyjoint tenant whofeloniously andintentionally kills another joint tenant thereby effects aseverance of the interest of the decedent so that the share of the decedent passes as his property and the killer has no rights by survivorship. [Emphasis added.] Section 72-2-104(2), MCA(1991), wasrenumbered and substantially revised in 1993. See572-2-813(3) (b), MCA(1993). Thus, while the 1991version of the statute provided for severance of only the decedent's interest, the 1993 version--which remains unchanged-- provides for severance of both the decedent's and the killer's interests in the property held asjoint tenants at the time of the killing. Section 72-2-813(3) (b), MCA. Furthermore, the effect of the statutory severances under the 1991 and 1993 versions of the statute differ significantly. Section 72-2-104(2), MCA (1991), expressly stated that the decedent's interest wassevered "so that the share of the decedent

6passes as his property and the killer has no rights by

survivorship." (Emphasis added.) Section 72-2-813(3) (b), MCA,on the other hand, expressly provides that both the decedent's andthe killer's interests are severed andthat the killing "transforms the interests of the decedent and killer into tenancies in common." (Emphasis added). Thus, asis evident from areview of the plain language of the statutes, §§ 72-2-104(2), MCA(19911, and 72-2-813(3)(b), MCA, provide for substantially different results based on the same factual situation--the felonious andintentional killing of ajoint tenant by another joint tenant. The District Court incorrectly interpreted § 72-2-813(3) (b), MCA,to mandate an effect on the decedent's andkiller's interests identical to that mandated under the predecessor statute, §72-2-104(2), MCA(1991). Larry relies on In re Estate of Matye (1982), 198Mont. 317, 645 P.2d 955, in support of his argument that he is entitled to one-half of the proceeds from the sale of the real property heand Nina owned as joint tenants. Estate of Matve is not applicable here. In Estate of Matve, we addressed a situation factually analogous to the present case. There, the wife killed the husband with whomshe ownedproperty in joint tenancy. Estate of Matve, 645P.2d at 956. Thedistrict court determined that the wife was entitled to one-half of the proceeds from the joint tenancy property andthe husband's estate appealed. Estate of Matve, 645 P.2d at 956-57.Onappeal, we interpreted 5 72-2-104(2), MCA(1981), which

remained unamended by the legislature through 1991. Weconcluded that, according to the plain language of the statute, only the decedent's interest wassevered andthat share must bedistributed

as property of the decedent without any right of survivorship in the killer. Estate of Matve, 645P.2d at 957. Theeffect wasthat the killer retained her one-half interest in the proceeds of the property. SeeEstate of Matve, 645P.2d at 957. As discussed above, however, fi 72-2-104(2), MCA(19811, has since been renumbered and substantially revised. See § 72-2- 813(3) (b), MCA. Thus, OUT analysis in Estate of Matve is inapplicable to the present case in which weinterpret andapply § 72-2-813(3) (b), MCA. Weconclude that where a joint tenant kills another joint tenant, the plain language of 572-2-813(3) (b), MCA,effectuates a

severance of both the decedent's and the killer's interests and transforms those interests into tenancies in commonasamatter of law. Therefore, in determining the respective interests of the killer andthe estate of the decedent under §72-2-813(3) (b), MCA, district courts must apply the legal rules applicable to tenancies in common. Section 70-l-313, MCA, defines tenancy in common as an interest "owned by several persons, not in joint ownership or partnership." Thus, unlike § 70-l-307, MCA,which defines joint interests, § 70-l-313, MCA, does not expressly provide for ownership in "equal shares." Nor dotenancies in commonunder §

870-l-313, MCA, include the right of survivorship under which

ownership of the entire interest in the joint tenancy property vests in the surviving joint tenant as amatter of law upon the death of the other joint tenant. SeeVosele, 745P.2d at 1140. Tenants in commonpresumptively ownundivided equal interests in property; however, that presumption is subject to rebuttal. See Sackv. Tomlin (Nev. 1994), 871P.2d 298, 304; Lawrence v. Harvey (1980), 186Mont. 314, 322-24, 607P.2d 551, 557; Ivins v. Hardy (1947), 120 Mont. 35, 42, 179 P.2d 745, 748 (overruled on other grounds). Therefore, onthe death of oneco-tenant, the surviving co-tenant and the decedent's estate may be entitled to unequal shares in the property. The respective shares of the decedent's estate andthe surviving co-tenant dependonthe decedent's andthe surviving tenant's individual contributions to the acquisition and maintenance of the property. See, e.q., Tomlin, 871 P.2d at 305. Absent proof of disparate contributions, however, the presumption that the co-tenants are entitled to undivided equal interests stands. Here Nina andLarry's interests were severed andtransformed into tenancies in commonuponNina's death. & §72-2-813(3) (b), MCA. Presumptively, those interests became undivided equal interests in the property; the presumption, however, can be rebutted. & Lawrence, 607 P.2d at 557. Thus, the Estate and Larry's respective shares in the proceeds from the sale of the house ultimately will depend onwhether the presumption is rebutted via proof regarding Nina and Larry's disparate individual

9contributions to the acquisition andmaintenance of the property at

issue. Wehold, therefore, that the District Court erred in concluding that the Estate and Larry are each entitled to fifty percent of the proceeds from the sale of the property Nina and Larry ownedasjoint tenants as amatter of law. 2. Did the District Court err in failing to settle and distribute all of the Estate's assets? TheEstate argues onappeal that the District Court erred as

amatter of law in failing to order the complete settlement and distribution of the Estate's assets andthe discharge of Ansonfrom further claims. It relies on§72-3-1001(3), MCA,which provides: After notice to all interested persons andhearing, the court may enter an order or orders, conditions, on appropriate

determining the persons entitled to distribution of the estate and, ascircumstances require, approving settlement and directing or approving distribution of the estate anddischarging the personal representative from further claim or demand of any interested person. Anson petitioned for determination of testacy and heirs and for settlement anddistribution of the Estate's assets pursuant to 5572-3-1001(l) and (2), MCA. Healso filed afinal account which contained aproposed distribution of the Estate's assets. Larry objected to the Estate's final account. He argued that he was entitled to one-half of the proceeds from the sale of the real property he and Nina held as joint tenants, that the Saab automobile should bedistributed to himandthat various items were his personal premarital assets. TheEstate filed anamendedfinal account immediately preceding the hearing in which it requested the court to distribute aretirement account not listed in its original

10final account andauthorize repayment of adebt against the Estate.

In its decision andorder, the District Court stated that "[a] hearing on the final distribution of the [Estate's] assets" was held. It subsequently determined that [a]ny [personal] property which Larry cannot prove to have been obtained byhimprior to the marriage andused byhim exclusively during the marriage is deemedto have beenheld jointly bythe parties during the marriage, and as tenants in commonfrom the time of Nina's death. Thecourt did not address the additional items in the amendedfinal account such as the retirement account. Nor did it settle and distribute the contested personal property which Larry contends is his personal premarital property, leaving the Estate andLarry to continue to dispute the proper disposition of such property. Finally, the District Court did not discharge Anson. Section 72-3-1001(3), MCA,provides that, in making afinal distribution of an estate, a court must discharge the personal representative from further claims by interested persons; however, nothing in 572-3-1001(3), MCA,mandates that acourt settle and distribute anestate at the time requested by the parties. It is unclear in this case whether the District Court intended its decision and order to constitute a final settlement and distribution of the Estate pursuant to §72-3-1001(3), MCA. What is clear, however, is that the District Court did not meet the statutory requirements for afinal distribution by "determining the persons entitled to distribution of the estate and

. . approving settlement and directing distribution of the estate and discharging the personal representative.

. . .'I See § 72-3-

111001(3), MCA. Therefore, this case must be remanded to the

District Court for further proceedings toward final distribution of the Estate. Reversed andremanded.

Weconcur:

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