                            No.     94-522
           IN THE SUPREME COURT OF THE STATE OF MONTANA




APPEAL FROM:   District Court of the Fifteenth Judicial District,
               In and for the County of Daniels,
               The Honorable Leonard Langen, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               John F. Lynch; Lynch & Chisholm, Great Falls,
               Montana

          For Respondent:
               George D. Goodrich; Garlington, Lohn & Robinson,
               Missoula, Montana



                                  Submitted on Briefs:   April 6, 1995
                                              Decided:   May 9, 1995
Filed:
Justice W. William Leaphart delivered the Opinion of the Court.



     Judy Pulst King (King) appeals from an order of the Fifteenth

Judicial District Court, Daniels County, granting summary judgment

and dismissing her claim based on Montana's pretermitted heir

statute.     We affirm.

     We restate King's two issues as follows:

1)   Did the decedent disinherit King in his will, thereby
     invoking the Montana pretermitted heir statute?

2)   Is King's claim barred by collateral estoppel or res
     judicata?

     Ted Skornogoski (Skornogoski) died on March 6, 1993. His will

was admitted to probate on March 31,                 1993.      His wife, Evelyn

Skornogoski is the personal representative.                  The will states that

Skornogoski had no children and effectively disbursed his estate.
King asserts that she is Skornogoski's daughter and therefore is

entitled to a fifty percent share                 of his estate by virtue of

Montana's pretermitted heir statute.              Section 72-2-602, MCA (1991).
     King bases her claim on information allegedly provided to her

shortly after her mother,        Trudy       J.   Pulst   (Pulst),   learned   that

Skornogoski    had   died.    King alleges that near the end of 1963,

Skornogoski had sexual intercourse with Pulst and, in 1965, paid

three thousand dollars to settle a paternity suit with Pulst based

on King's birth.

     Skornogoski's will states that "I have no children and no

living     decedents."       The essence of          King's    argument is     that

Skornogoski must have thought she was dead when he wrote his will.

                                         2
She argues that "the & reason offered [in Skornogoski's will] as

to why he did not provide for such children is that he thought he

had     'no   living   descendants.'"   That is to say that Skornogoski

would have included King in his will but he thought she was dead.

King asserts that for Skornogoski to write in his will that "I have

no children and no living decedents" proves          his   mistaken   belief
that he thought his living children were dead and that to find

otherwise would be to ignore the operative language of the will.

        In support of her claim,        King cites to § 72-2-602(2), MCA

(1991), which provides:
        If at the time of execution of the will the testator
        fails to provide in his will for a living child solely
        because he believes the child to be dead, the child
        receives a share of the estate equal in value to that
        which [she] would have received if the testator had died
        intestate.

This section is adopted almost verbatim from the Uniform Probate

Code,    5 Z-302.      The comment of the Joint Editorial Board for the

Uniform Probate Code for code § 2-302 (1991) states that:

        This section provides for both the case where a child    was
        born or adopted after the execution of the will and      not
        foreseen at the time and thus not provided for in        the
        will, and the rare case where a testator omits one of    his
        existing children because of mistaken belief that        the
        child is dead.

The Editorial Board comment to § 2-302,          MCA (1991) (revised and

renumbered),      states that this section:

        addresses the problem that arises if at the time of
        execution of the will the testator fails to provide in
        his or her will for a living child solelv because he or
        she believes the child to be dead. Extrinsic evidence is
        admissible to determine whether the testator omitted the
        living child solelv because he or she believed the child
        to be dead.   [Emphasis  added.]


                                        3
To evidence that Skornogoski did not believe that King was dead

when he executed his will, the District Court was presented with

affidavits of         Evelyn Skornogoski and S.      Thomas Darland,     the
attorney who prepared Skornogoski's will. Both of these affidavits

evidence that Skornogoski did not believe that he had any dead

children.

         King presents no evidence to show that Skornogoski thought

that King was his child and that when he executed his will he

thought       she was dead.     Based on the record, it appears that

throughout Skornogoski's life, including when he drafted his will,
he acted as though he had no children.           King presents no evidence
to show that Skornogoski omitted her from his will                  "solely"

because,       when he executed his will,    he believed she was dead.

Absent any evidence that Skornogoski failed to provide in his will

for a living child solely because he believed the child to be dead,

King's claim must fail.

         "Our standard of review on a grant of summary judgment is

identical to that of the trial court's."         Minnie v. City of Roundup

(1993),       257 Mont. 429, 431, 849 P.2d 212, 214.     "Summary   judgment

is proper only when no genuine issue of material fact exists and

the moving party is entitled to judgment as a matter of law.            Rule

56 Cc)   ,   M.R.Civ.P."   Spain-Morrow Ranch,   Inc. v. West (1994), 264

Mont. 441, 444, 872 P.2d 330, 331-32. The District Court correctly

granted summary judgment for this issue.

         Because of our holding for this issue, we need not consider

King's second issue.


                                       4
     Dismissed.
     Pursuant to Section I, Paragraph 3 (c),   Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as

precedent and shall be published by its filing as a public document

with the Clerk of the Supreme Court and by a report of its result

to Montana Law Week, State Reporter, and West Publishing Company.




We copyg:




                                 5
                                           May 9, 1995

                                  CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:


John F. Lynch
LYNCH LAW FIRM
P.O. Box 2265
Great Falls, MT 59403

George D. Goodrich
GARLINGTON, LOHN & ROBINSON
P.O. Box 7909
Missoula, MT 59807

S. Thomas Darland
P.O. Box 335
Plentywood, MT 59254


                                                      ED SMITH
                                                      CLERK OF THE SUPREME COURT
                                                      STATE OF MONTANA
