I N THE SUPREME COURT O F THE STATE OF MONTANA

I N THE MATTER O F NORWEST CAPITAL MANAGEMENT AND TRUST COMPANY, e t al. a n d MARCELLA E. MAKI, Joint Petitioners.

CLERK O f SUBIZE&%E COURT STATE OP tt4OHTbSR O R D E R

The o r i g i n a 1 o p i n i o n , M a t t e r o f N o r w e s t C a p i t a l Manage-

ment and T r u s t Co. (Mont. 1 9 8 5 ) , 697 P.2d 930, 4 2 St.Rep.

493, i s c o r r e c t e d t o d e l e t e t h e l a s t p a r a g r a p h o f t h e o p i n i o n

and s u b s t i t u t e t h e r e f o r e t h e f o l l o w i n g :

I n 1 8 9 5 , t h e S t a t e o f Montana a d o p t e d t h e Montana C o d e s A n n o t a t e d o f 1 8 9 5 . In a d o p t i n g t h e Code, t h e L e g i s l a t u r e e n a c t - e d § 579 o f t h e Code o f C i v i l P r o c e d u r e , w h i c h was a r e e n a c t m e n t o f 5 1 4 of t h e Code o f C i v i l P r o c e d u r e o f 1 8 7 7 ; by d o i n g s o , t h e L e g i s l a t u r e adopted t h e c u r r e n t w ro n g f u l d e a t h s t a t u t e l a n g u a g e found i n § 27-1-513, MCA. Also i n 1895, t h e Legislature adopted a new succession s t a t u t e which d e f i n e d h e i r s which d e f i n i - t i o n c o n t r o l s t h m e a n i n g of h e i r s f o u n d ~ i n t h e enactment o f Montana's wrongful death statute. S e c t i o n 1852, Probate Code of 1 8 9 5 , p r o v i d e s i n p a r t :

2. I f t h e d e c e d e n t l e a v e no i s s u e , t h e e s t a t e goes one-half t o the surviving h u s b a n d o r w i f e , and t h e o t h e r t o t h e d e c e d e n t ' s f a t h e r and m o t h e r i n e q u a l s h a r e s , a n d i f e i t h e r be d e a d the w h o l e of said h a l f goes t o t h e other. If there be no f a t h e r o r mother, then one-half goes i n e q u a l s h a r e s t o t h e b r o t h e r s and sisters o f t h e d e c e d e n t , and t o t h e c h i l d r e n of any deceased b r o t h e r or s i s t e r , by r i g h t o f r e p r e s e n t a t i o n . I f t h e d e c e d e n t l e a v e no i s s u e , n o r husband nor w i f e , t h e e s t a t e must go t o h i s f a t h e r and mother i n e q u a l s h a r e s , o r i f e i t h e r be d e a d t h e n t o t h e o t h e r .

The p l a i n l a n g u a g e o f t h e s t a t u t e makes t h e mother t h e o n l y h e i r under t h e f a c t s o f t h i s c a s e s i n c e ' h e i r ' m e a n s t h o s e who t a k e upon d e c e d e n t ' s d e a t h u n d e r t h e intestacy statute. We affirm t h e t r i a l c o u r t ' s judgment r p l y i n g upon t h e Johnson rationale denying Marcella Maki the s t a t u s o f ' h e i r ' and d e c l a r i n g Ruth Maki, d e c e d e n t ' s m o t h e r , a s sole h e i r . "

With t h i s c o r r e c t i o n , t h e o r i g i n a l opinion is approved.

DATED o n t h i s 2 7'idr d a y - o f August, 1985. A

<f&* hief Justice

Justices No. 84-494

IN THE SUPREME COURT OF THE STATE OF MONTANA

IN THE MATTER OF NORWEST CAPITAL MANAGEMENT AND TRUST COMPANY, et al., and MARCELLA E. MAKI, Joint Petitioners.

APPEAL FROM: ~istrictCourt of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable William J. Speare, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Nye & Meyer, Billings, Montana

For Respondent: Moses Law Firm, Billings, Montana

Submitted on Briefs: Feb. 28, 1985 Decided: April 9 , 1985

) 4;. :: J , , .. . 3 . \ * . , \ :;.. 3 Filed:

Clerk Mr. Justice Frank R . Morrison, Jr., delivered. the Opinion of the Court. This is an appeal from a declaratory judgment 05 the District Court of the Thirteenth Judicial District in Yellowstone County declaring Ruth Kaki, mother of decedent Carmen Maki, the sole heir of her daughter's estate for the * purpose of bringing a wrongful death action. On December 21, 1983, the parties filed a joint petition for a declaratory judgment in the District Court of the Thirteenth Judicial District in Yellowstone County, to deter- mine where mother and/or sister are "heirs" qualifying them . . to maintain an action for the wrongful death of Carmen Maki under 27-1-513, MCA. Norwest Capital Management &-'?rust Company was Conservator of the Estate of Ruth Maki, mother of decedent Carmen Maki.. The other Joint Petitioner was Marcella E. Maki, the sister of deced-ent Carmen ~ a k i . At the pre-trial conference, the trial court indicated it would. decide the legal issue based upon stipulated facts submitted by the parties. On October 2, 1984, the District Court entered its judgment in favor of Norwest, declaring Ruth Maki the sole heir. Marcella Maki appeals. The joint petition presented the following undisputed facts: "On May 27, 1983, Carmen Maki was killed in an automobile accident in Fergus County, Montana. Carmen Maki was an individual of legal age who resided in Billings, Yellowstone County, Montana, at the time of her death. "Ruth Maki is the natural mother of Carmen Maki and Marcy Maki is the sister of Carmen Maki. Carmen Maki left no other surviving relatives of any degree of kinship enumerated in 55 72-2-202 and 72-2-203, MCA. "The death of Carmen Maki has given rise to an action for wrongful death." The trial jud.ge declared that Ruth Eaki, as mother of d.ecedent, is the sole heir for purposes of maintaining a wrongful death action. We affirm. Montana ' s wrongful death statute, 27-1-51.3, MCA, grants only "heirs and personal representatives" the right to "maintain" an action for wrongful death. Nowhere in the wrongful death statutory scheme is "heir" defines. In Versland v. Caron Transport (1983), 671 P.2d 583, 40 St.Rep. 1681, this Court defined "heirs" as "those persons who are entitled to the property of a decedent under the statutes of intestate succession." The trial judge in this appeal correctly adopted the rationale in the concurring opinion of Johnson v. Marias River Electric Coop. (1984), 687 P.2d 668, 41 St.Rep. 1528, by applying the statutory definition in effect at the time of the enactment of the wrongful death statute to determine which parties qualified as "heirs. " We reject the appellant's argument that the date of the original enactment of the wrongful death statute, 1871, is the determinative date by which "heir" is defined. Montana's 1871 intestate succession laws included "sisters" in the same line as mothers and fathers. Both Montana's intestate succession and wrongful death statutes were amended in 1877. The Wrongful Death Act changed the class of individuals allowed to recover from "the widow and next of kin of such deceased person . . ." to "heirs and personal representatives." Since the operative term "heirs" was introduced. by this 1877 enactment, the definition in the 1877 intestate succession statutory scheme is the controlling law. The intestate succession statute was amended in 1-877 to drop "sisters" from the same succession line as parents. "Heir" means those who take upon decedent's death under the intestacy statute. After the 1877 amendment the Maki heir is the mother only. We affirm the trial court's judgment relying upon the Johnson rationale denying Marcella Maki the status of "heir" and declaring Ruth Maki, decedent's mother, as sole heir. , ,

//.H - / B i e f Justice

J I P U *

Justices