                                           No.    81-381

                  I N THE SUPREME COURT O THE STATE OF M N A A
                                         F              OTN

                                                  1982




I N RE THE ESTATE OF

RICHARD STANLEY MATYE, D e c e a s e d ,




Appeal from:       D i s t r i c t Court of t h e Fourth J u d i c i a l District,
                   I n and f o r t h e County o f M i s s o u l a , The H o n o r a b l e
                   J a c k L. Green, J u d g e p r e s i d i n g .


C o u n s e l o f Record:

      For Appellant:

                   T i p p , Hoven, S k j e l s e t & F r i z z e l l , M i s s o u l a ,
                   Montana


      F o r Respondent:

                   Datsopoulo.s, MacDonald & L i n d , P l i s s o u l a ,
                   Montana




                                           Submitted on B r i e f s :          March 1 8 , 1982

                                                               Decided:        J u n e 7,   1982


         J N 1 - 19%
          U
Filed:
Mr. Justice Fred J. Weber delivered the Opinion of the
Court.

     The Personal Representative (PR) of the estate of
decedent Matye appeals from the order of the Fourth Judicial
District Court, Missoula County, holding that a widow retained
an undivided half-interest in real property owned jointly by
the widow and her husband, notwithstanding the possibility
that the widow had intentionally killed her husband.   We
affirm the District Court.

     The PR of Matye's estate presents the following questions
for review:
     (1) Whether a joint tenant who feloniously and intentionally
kills the other joint tenant retains an undivided half-
interest in the jointly-held property.

     (2) Whether, if an interest in jointly-held property

is retained by the slayer, a constructive trust should be

imposed for the benefit of decedent's heirs.
     At the time of this appeal, deliberate homicide charges
were pending against the wife, charging that on February 20,

1981, decedent Matye was shot and killed by his wife, as he

slept.
     On April 27, 1981, the District Court heard the petition
of decedent's father for adjudication of intestacy, determination
of heirs and appointment of PR.   The wife agreed to the

appointment of the decedent's father as PR on the condition
that the District Court supervise the administration of the
estate.   She asked the court to order the sale of the jointly-
held property and "make available to [her] a one-half share
of the proceeds of that sale, with the determination as to

the disposition of the remaining one-half share awaiting the
outcome of her trial."   She emphasized her need for funds
"to secure the best possible defense."     The PR opposed any
payment of proceeds to the wife.    On May 4, 1981, the District
Court ordered the sale of the real property, and further

ordered that the proceeds be placed in a trust account for
the estate of Richard Matye pending the court's determination

of the respective rights of the parties.

     After considering the arguments and briefs, on June 5,
1981, the District Court ordered that after the sale of the

jointly-held property, upon application of the wife, the PR

should deliver to the wife one-half of the sale proceeds, including
principal and interest.    The PR appeals from that portion of
the June 5, 1981, order.
     We are not concerned in this appeal with the remaining
one-half of the proceeds from the sale of the jointly-owned
property.



     The PR argues that the District Court relied upon
section 72-2-104(2), MCA, and failed to apply section 72-2-
104(1), MCA, which has not yet been construed by this
Court.   The statute provides:

            "72-2-104. (1) A surviving spouse, heir,
            or devisee who feloniously and intention-
            ally kills the decedent is not entitled to
            any benefits under the will or under this
            chapter, and the estate of decedent passes
            as if the killer had predeceased the
            decedent. . .
            "(2) 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. This
            provision applies to joint tenancies in real
            and personal property, joint accounts in
            banks, savings and loan associations, credit
            unions, and other institutions, and any other
            form of co-ownership with survivorship inci-
            dents. 'I
The PR maintains that these provisions are inconsistent and

that this Court should reconcile them by construing them
against the blameworthy party.     He argues that the wife
should be treated as having predeceased decedent; thus the
entire interest in the jointly-held property should be found
to have passed to Richard Matye by survivorship and vested
in his estate.    According to the PR, allowing the wife to

keep half the proceeds of the sale rewards her wrongdoing,
contrary to section 72-2-104(1), MCA, by permitting her to
benefit from her destruction of the possibility that the
husband would survive her and become sole owner of all the
property.

       We disagree.   The factual analysis must take place as

of the moment of the death of the husband.     Immediately
prior to such death, the husband and wife were the owners as

joint tenants with rights of survivorship in the real property.
It should be noted that the right of survivorship exists by
virtue of the grant in the deed itself.    Section 70-20-310,

MCA.    That right of survivorship, which normally allows the
survivor to take full title to the jointly-owned property,
exists under the deed grant and is not in any way related to
the estate of the deceased which passes by the law of intestate
succession or under the law of wills.
       A joint tenancy in real property may be severed during
lifetime by a conveyance on the part of a joint tenant.

Such a conveyance is termed a severance.    By section 72-2-
104(2), MCA, the Montana legislature has provided that the
felonious and intentional killing of a joint tenant effects
a severance of the interest of the decedent.    As further
stated in the statute, the effect of the severance is that

the share of the decedent, one-half in this case, passes as
the property of the decedent and the killer has no right of
survivorship. While there have been extensive arguments
made in other states because of the absence of statutes, our
statute is clear.   If it is ultimately determined that the
wife feloniously and intentionally killed her husband, then
under section 72-2-104(2), MCA, a severance took place at
the moment of death, resulting in a one-half interest being
retained by the wife and the remaining one-half interest
passing as the property of the decedent husband.
     Section 72-2-104(1), MCA, then clearly describes the
treatment to be given to the estate of the decedent.    If the
wife is found to have feloniously and intentionally killed
the husband, then the wife is not entitled to any portion of
the estate of the deceased, and the estate passes as if the
wife had predeceased the decedent.   The result of this
statute is that if the wife is found to have feloniously and
intentionally killed the husband, the one-half interest in
the property which would have passed by the right of survivorship
instead passes as a part of the estate of the decedent,
excluding the killer.
     The effect of section 72-2-104(1) and ( 2 ) , MCA, is to
provide that where a joint tenant feloniously and intentionally
kills another joint tenant, the killer may not benefit by
virtue of the right of survivorship provision in the joint
tenancy deed, and that the killer also may not participate
in the estate of the decedent passing under the laws of

testate and intestate succession.
     This conclusion is consistent with two factually similar
cases decided by this Court prior to the adoption of the

Uniform Probate Code.   In Sikora v. Sikora (1972), 160 Mont.
27, 499 P.2d 808, and In re Cox's Estate (1963), 141 Mont. 583,
380 P.2d 584, this Court determined that a joint tenant who
killed the other joint tenant was entitled to retain his
interest in the jointly-held property.     The Court relied

upon the principle that the wrongdoer should not take advantage
of his own wrong and held that the killer was not entitled
to the survivorship share of the property.

        The PR now urges this Court to extend the above principle,
and hold that, because the wife might have predeceased the
husband and been entitled to none of the jointly-held property,
she cannot benefit from her wrongful act by retaining her
half-interest in the property.

        We do not view the wife's retention of her half-interest
as a benefit resulting from decedent's murder.
        The wife's interest in the jointly-held property vested
with the creation of the joint tenancy.     She had the right
to convey her interest and sever the joint tenancy at any
time.    Barrett v. Ballard (1980),       Mont.     , 622 P.2d
180, 37 St.Rep. 2038.    This was not a situation where the
wife could succeed to ownership by will or intestate succession.
She already owned a half-interest in the property.    We
decline to deprive her of that interest on the speculative
basis suggested by the PR.    We find that the wife obtained

no concrete benefit as a result of killing her husband, and
is entitled to retain her half-interest in the jointly-held

property.


     The PR argues in the alternative, that if the wife is

entitled to a severance and half-interest in the jointly-
held property, she should hold that property subject to an
involuntary, constructive trust for the benefit of decedent's
heirs.    The PR relies upon section 72-20-111, MCA, which
provides for the imposition of an involuntary trust when
one "gains a thing by    . . . wrongful act."
     We do not find that the severance of the joint tenancy
in any way constituted a gain by the widow and hold that
section 72-20-111, MCA, is not applicable.   Nor does section

72-2-104(2), MCA, provide for the imposition of a constructive
trust under these circumstances.   The District Court correctly
held that while Montana law requires the imposition of a
constructive trust on the murdered decedent's interest, for the

benefit of the decedent's heirs, the slaying results in a
severance of the joint tenancy with the survivor retaining
the other undivided one-half interest.
     Affirmed.




We Concur:
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