No. 96-654 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

IN THE MATTER OF THE ESTATE OF 

NINA J. GARLAND, Deceased, 

Appellant. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Dorothy McCarter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Dennis G. Loveless, Attorney at Law, Helena, 

Montana 

For Respondent: 

Carl Hatch; Small, Hatch, Doubek & Pyfer, 

Helena, Montana 

Filed: 

. 

"'7 Submitted on Briefs: October 17, 1996 

Decided: -November 15, 1996 

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

Anson Fredenberg, 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. We reverse and remand. 

The Estate raises the following issues on appeal: 

1. Did the District Court err in concluding that the 

surviving spouse who killed the deceased spouse is entitled to a 

one-half interest in the proceeds from the sale of the real 

property which he and the decedent owned as a matter of law? 

2. Did the District Court err in failing to settle and 

distribute all of the Estate's assets? 

Nina J. Garland (Nina) and Larry Garland (Larry) were married 

in Alaska in 1986. Sometime thereafter, Nina and Larry moved to 

Montana and purchased a house in Helena, Montana, as joint tenants 

with the right of survivorship. 

Nina died testate on October 22, 1993. Larry subsequently was 

convicted of deliberate homicide for her death and is presently 

incarcerated in the Montana State Prison. Two minor daughters 

survive Nina; one of them, Emily Garland, is also Larry's daughter. 

Nina left a will providing for an equal 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 and Larry, the house in Helena which 
Larry and Nina owned in joint tenancy was sold and the proceeds 

placed in a special trust account to be distributed by the District 

court. 

A hearing on the 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 and order, 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 name in the Estate. The Estate appeals. 

1. Did the District Court err in concluding that Larry 

is entitled to a one-half interest in the proceeds from 

the sale of the real property which he and Nina owned as 

a matter of law? 

Larry and Nina purchased the real property at issue as joint 

tenants with the right of survivorship and, as a result, 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 and the jointly-held property immediately 

passes to the surviving joint tenant as a matter of law. Voyele v. 

Estate of Schock (1987), 229 Mont. 259, 263, 745 P.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 

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transformed into tenancies in common upon Nina's death resulting 

from Larry's felonious act. Relying on the Official Comments to § 

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. As a 

result, the District Court concluded that the Estate and Larry 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 was erroneous. It contends that both Nina and Larry's 

interests were severed and transformed into tenancies in common 

pursuant to § 72-2-813(3) (b), MCA, and, therefore, that tenancy in 

common principles apply. The Estate argues that, under those 

principles, it was entitled to attempt to prove that Nina 

contributed more to the property than Larry did, with the potential 

result that the Estate would receive a larger share of the proceeds 

from the sale of the property. We review 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), 273 Mont. 506, 510, 905 P.2d 158, 161 (citation omitted). 

The resolution of this case turns, initially, on the 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: 

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(b) severs the interests of the decedent and killer 

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 and killer 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. We must pursue legislative intent if 

possible. See § l-2-102, MCA. Where the intention of the 

legislature can be determined from the plain meaning of the words 

used, our role in interpreting the statute is at an end. Clarke v. 

Massey (1995), 271 Mont. 412, 416, 897 P.2d 1085, 1088. Where the 

language is clear and unambiguous, the statute speaks for itself 

and we will not resort to legislative history or other extrinsic 

means of interpretation. Clarke, 897 P.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 one joint tenant by another, the interests of both the 

decedent and the killer are severed and transformed into tenancies 

in common. Thus, the killer is divested of the benefits of a joint 

tenancy--the right to survivorship and ownership 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." On that basis, the court concluded that 

only the decedent's interest is severed and the killer loses only 

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his 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 was at an end and it could 

not properly resort to legislative history or other extrinsic means 

of interpretation. See §§ l-2-101, l-2-102, MCA; Clarke, 897 P.2d 

at 1088. 

Moreover, in its decision and order, 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 5 72-2-813(3)(b), MCA, which provided: 

Any joint tenant who feloniously and intentionally kills 

another joint tenant thereby effects a severance 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), was renumbered and substantially 

revised in 1993. See 5 72-2-813(3) (b), MCA (1993). Thus, while 

the 1991 version 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 as joint 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 was severed "so that the share of the decedent 

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passes 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 and the 

killer's interests are severed and that the killing "transforms the 

interests of the decedent and killer into tenancies in common." 

(Emphasis added). 

Thus, as is evident from a review 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 and intentional killing of a joint 

tenant by another joint tenant. The District Court incorrectly 

interpreted § 72-2-813(3) (b), MCA, to mandate an effect on the 

decedent's and killer'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), 198 Mont. 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 he and 

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 whom she owned property in joint tenancy. Estate of Matve, 

645 P.2d at 956. The district court determined that the wife was 

entitled to one-half of the proceeds from the joint tenancy 

property and the husband's estate appealed. Estate of Matve, 645 

P.2d at 956-57. 
On appeal, we interpreted 5 72-2-104(2), MCA (1981), which 

remained unamended by the legislature through 1991. We concluded 

that, according to the plain language of the statute, only the 

decedent's interest was severed and that share must be distributed 

as property of the decedent without any right of survivorship in 

the killer. Estate of Matve, 645 P.2d at 957. The effect was that 

the killer retained her one-half interest in the proceeds of the 

property. See Estate of Matve, 645 P.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 we interpret and apply § 

72-2-813(3) (b), MCA. 

We conclude that where a joint tenant kills another joint 

tenant, the plain language of 5 72-2-813(3) (b), MCA, effectuates a 

severance of both the decedent's and the killer's interests and 

transforms those interests into tenancies in common as a matter of 

law. Therefore, in determining the respective interests of the 

killer and the 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 do tenancies in common under § 

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70-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 a matter of law upon the 

death of the other joint tenant. See Vosele, 745 P.2d at 1140. 

Tenants in common presumptively own undivided equal interests 

in property; however, that presumption is subject to rebuttal. See 

Sack v. Tomlin (Nev. 1994), 871 P.2d 298, 304; Lawrence v. Harvey 

(1980), 186 Mont. 314, 322-24, 607 P.2d 551, 557; Ivins v. Hardy 

(1947), 120 Mont. 35, 42, 179 P.2d 745, 748 (overruled on other 

grounds). Therefore, on the death of one co-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 and the surviving co-tenant depend on the decedent's and the 

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 and Larry's interests were severed and transformed 

into tenancies in common upon Nina'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 on whether the presumption is rebutted 

via proof regarding Nina and Larry's disparate individual 

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contributions to the acquisition and maintenance of the property at 

issue. We hold, 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 owned as joint tenants as a matter of law. 

2. Did the District Court err in failing to settle and 

distribute all of the Estate's assets? 

The Estate argues on appeal that the District Court erred as 

a matter of law in failing to order the complete settlement and 

distribution of the Estate's assets and the discharge of Anson from 

further claims. It relies on § 72-3-1001(3), MCA, which provides: 

After notice to all interested persons and hearing, the 

court may enter an order or orders, 

conditions, 

on appropriate 

determining the persons entitled to 

distribution of the estate and, as circumstances require, 

approving settlement and directing or approving 

distribution of the estate and discharging the personal 

representative from further claim or demand of any 

interested person. 

Anson petitioned for determination of testacy and heirs and 

for settlement and distribution of the Estate's assets pursuant to 

55 72-3-1001(l) and (2), MCA. He also filed a final account which 

contained a proposed 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 be distributed to him and that various items were 

his personal premarital assets. The Estate filed an amended final 

account immediately preceding the hearing in which it requested the 

court to distribute a retirement account not listed in its original 

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final account and authorize repayment of a debt against the Estate. 

In its decision and order, 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 by him prior to the marriage and used 

by him exclusively during the marriage is deemed to have 

been held jointly by the parties during the marriage, and 

as tenants in common from the time of Nina's death. 

The court did not address the additional items in the amended final 

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 and Larry 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 a final 

distribution of an estate, a court must discharge the personal 

representative from further claims by interested persons; however, 

nothing in 5 72-3-1001(3), MCA, mandates that a court settle and 

distribute an estate 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 a final 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- 

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1001(3), MCA. Therefore, this case must be remanded to the 

District Court for further proceedings toward final distribution of 

the Estate. 

Reversed and remanded. 

We concur: 

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