              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

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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. ,
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