                          No. 13618
         IN THE SUPREP4E COURT OF THE STATE OF MONTANA
                            1977


IN THE MATTER OF TEE ESTATE
OF HELEN HARMON BREWINGTON, Deceased.


Appeal from:   District Court of the Fourth Judicial District,
               Honorable Nat Allen, Judge presidina.
Counsel of Record:
     For Appellant:

         Julio Elorales argued, Missoula, Montana
     For Respondents:
         Glen Neier argued, and John V. Potter appeared,
          White Sulphur Springs, Montana


                                Submitted:   -.   May 18, 1977




Filed:
Mr. Justice Daniel J. Shea delivered the Opinion of the Court.



           Lawrence rew wing ton appeals from an order of the district
court, lleagher County, denying his petition to amend a determination
of heirs to include him as an heir of decedent, Helen Harmon Brew-
ington.

           Raymond Brewington died intestate in the 1950's.      His
wife, Helen Harmon Brewington, survived him.    Raymond had several
brothers and sisters, but under the laws of intestate succession

Helen inherited the entire estate.    Helen did not remarry and died
intestate September 12, 1975.    Several cousins survived her.   During

the probate of Helen's estate, her cousins were listed as heirs in
a petition for adjudication of intestacy.    At the time of Helen's
death several brothers and sisters of her deceased husband Raymond
were still living.    One of them, Lawrence Brewington, filed a peti-
tion in Helen's estate proceedings asking the district court to
amend the determination of heirs, claiming he was one of her next
of kin under Montana's laws of succession.   Because of his claim he
asserted he had the right to notice of the adjudication of intestacy.

           The district court ruled he was not next of kin under
Montana's laws of succession and was therefore not entitled to
notice of the probate of Helen's estate.
          We agree.

           Lawrence does not contend he is entitled to inherit all

of Helen's estate, to the exclusion of her cousins.   Rather, he
contends under the common law doctrine of "ancestral succession",
he is entitled to inherit that portion of her estate which came to
her when her husband Raymond died.   He contends he should be allowed

to trace this property.
           The sole issue here is whether Lawrence rew wing ton, as
the brother of Helen Brewington's predeceased husband, ~aymond
Brewington, is "next of kin" under section 91A-2-103, R.C.M. 1947,
and therefore entitled to inherit part of Helen Brewington's estate.

           Under the common law doctrine of ancestral succession,
property reverted to the line of family from which property was
descended or devised.    Because "next of kin" is not defined in the

Montana version of the Uniform Probate Code, and the doctrine of
ancestral succession has not expressly been abrogated by statute or

overruled by court decision, Lawrence argues that collateral rela-

tives of a predeceased spouse should be included among next of kin
as to property which descended from that spouse.

           Lawrence refers this Court to annotations under former
Section 91-403, R.C.M. 1947, (repealed Laws    1974) which governed

succession to an intestate estate.    It is important to note, however,
that none of the cases cited under this statute held that relatives
by affinity, other than a spouse, could inherit from an intestate.
In fact, the laws of Montana indicate the contrary.

           In the earliest territorial laws of Montana, it is true

relatives of a predeceased spouse inherited by law the estate of a
decedent who died intestate leaving no relatives of his own.    Sec.
254, Cod. Stat. 1871, p. 362.   Even under that statute, however,
cousins of an intestate fell under the category of "paternal or
maternal kindred" and preempted the rights of the relatives of the

predeceased spouse.    That statute was expressly repealed by Sec.

558, Laws of 1877, p. 370.

          All later statutory enactments indicate "next of kin"
or "kindred" was never intended to include relatives by affinity
as those who would inherit under the laws of intestate succession.
In 1877, the laws of succession included for the first time the
words "next of kin".    Sec. 534, p. 365, Sixth Clause, read:
           "If the decedent leave no issue, nor husband,
           nor wife, and no father, nor mother, nor brother,
           nor sister, the estate must go to the next of
           kin, in equal degree, excepting that when there
           are two or more collateral kindred in equal
           degree, but claiming through different ancestors,
           those who claimed through the nearest ancestors
           must be preferred to those claiming through an
           ancestor more remote * * *."

           "Kindred" was then defined in terms of ancestors, and
therefore, blood relatives.   Sec. 538 and Sec. 539, Laws of 1877,

pp. 366-367, provide:
           "Sec. 538. The degree of kindred is established
           by the number of generations, and each generation
           is called a degree.
           "Sec. 539. The series of degrees forms the line;
           the series of degrees between persons who descend
           from one another, is called direct or lineal con-
           sanquinity; and the series of degrees between
           persons who do not descend from one another, but
           spring from a common ancestor, is called the
           collateral line, or collateral consanquinity."

           It is significant that in none of these succession stat-

utes is there reference to relatives by affinity.   Sec. 543, Laws of
1877, the original statute regarding blood line descent, in fact
preferred whole blood relatives to half-blood relatives:

          "Sec. 543. Kindred of the half blood inherit
          equally with those of the whole blood in the
          same degree, unless the inheritance came to the
          intestate by descent, devise, or gift of some
          one of his ancestors, in which case all those
          who are not of the blood of such ancestor must
          be excluded from such inheritance."
          A notable exception to the preference to blood relatives
in the scheme of inheritance is the right of adopted children to
inherit in the same manner as natural children.   However, this

right was created especially by statute and did not exist previously
under common law.
          The 1877 statutes on intestate succession were reenacted

in essentially the same form (sections 91-403, 91-407 through 91-
411, R.C.M. 1947) and were effective up to the adoption of the
Montana Uniform Probate Code in 1974.   Even the new code incorporates
much of the same language, including section 91A-2-103, R.C.M. 1947,

which reads in pertinent part:
              "Share of heirs other than surviving spouse.
           The part of the intestate estate not passing to
           the surviving spouse under section 91A-2-102, or
           the entire intestate estate if there is no sur-
           viving spouse, passes as follows:


              " (5) 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
           (2) 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."
A simple reading of this statute indicates relatives by affinity are

not explicitly included as "next of kin" under this statute.         The

new code, Title 91A, does not include provisions regarding "kindred".

In absence of such provisions, this Court adopts the interpretation
of "kindred" under the former laws.

           In a case supporting this restricted definition, In re
Bernheim's Estate, 82 Mont. 198, 208, 266 P. 378, 57 A.L.R. 1169,
Anno., 5 ALR3d 715, 717, the Court held that the word "relatives"
in a will included only relatives by blood unless words to the con-
trary are expressed:

          "The word 'relatives' has two meanings: (1)
          an enlarged meaning which includes all persons
          who are related in any way, by consanquinity
          or affinity, lineal and collateral relatives;
          (2) a restricted meaning which is confined to
          such relatives as are heirs, under the law of
          succession. It is the universal holding that,
          when used in a will, the word is presumed to
          mean relatives in the restricted sense, unless
          a contrary intention is apparent from the con-
          text of the will." 82 Mont. 205.

Although Bernheim revolved around the wording of a will, it did
confine "relatives   * * *   under the law of succession" to those
related to a decedent by consanquinity and not affinity, and there-
fore, is pertinent here.

           Cases cited in support of the argument for the rights
of blood relatives of a predeceased spouse are based on statutes
to that effect, and in at least half of the cited jurisdictions,
these statutes have been repealed.   The trend is definitely towards
eliminating the rights of such relatives.

           Lawrence correctly states the "law favors one's own
blood relatives as the natural object of one's bounty".    He does

not allege, however, that he was entitled to priority over his bro-
ther's wife on the death of his brother 20 years ago, and by statute,
Raymond's "bounty" passed in full to Helen at that time.     Raymond's

estate should not be open to new claims 20 years later.
           Lawrence also argues that in equity less distant rela-
tives through marriage should receive the benefit of an estate over
more distant cousins by blood.   In this connection, this Court

recognizes the general comments of the Uniform Probate Code, 8 U.L.A.

Probate--Intestate Succession, pp. 322, 323:
              "While the prescribed patterns may strike
           some as rules of law which may in some cases
           defeat intent of a decedent, this is true of
           every statute of this type. In assessing the
           changes it must therefore be borne in mind that
           the decedent may always choose a different rule
           by executing a will."

          Moreover, as the district court stated in its denial of
Lawrence's request, if the laws of intestate succession work to the

detriment of certain classes of individuals, it is for the legisla-
ture, and not the courts, to rectify.
          We conclude that blood relatives of a predeceased spouse

are not next of kin of the spouse last to die, and Lawrence has no
claim to a portion of Helen Brewington's estate.
          While we do not discuss the argument that assets from
Raymond's estate are no longer identifiable, we note in most cases
it would be extremely unlikely they would be identifiable after a

passage of 20 years.
          We affirm the district court order.
We Concur:




    Chief Justice
