                                                  No.    90-525
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                        1991


IN THE MATTER OF THE ESTATE OF
MERLE RUDOPLH LIGGETT, Deceased.



APPEAL FROM:             District Court of the Fifth Judicial District,
                         In and for the County of Jefferson,
                         The Honorable Frank M. Davis, Judge presiding.


COUNSEL OF RECORD:
               For Appellant:
                         John H. Jardine, Jardine & Grauman, Whitehall,
                         Montana; Kenneth W. Gates, Gates & Zeirnantz, P.S.,
                         Spokane, Washington
               For Respondent:
                         W. M. Hennessey, Hennessey and Joyce Law Office,
                         Butte, Montana
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                                         :~-9ji   Submitted on Briefs:       August 15, 1991
                                                                  Decided:   August 27, 1991
Justice Terry N. Trieweiler delivered the opinion of the Court.
        Plaintiff Lester E. Grady appeals from the judgment of the
~istrictCourt of the Fifth Judicial District for Jefferson County,
determining that Grady is not a pretermitted heir as set forth
under 5 72-2-602, MCA.       We affirm the District Court.
        The sole issue before the Court is whether the District Court
erred    in   its   determination   that   Grady   does   not   qualify as a
pretermitted heir.
        The decedent, Merle R. Liggett, died on August 20, 1989, at
the age of 92.         His will was admitted to informal probate on
September 20, 1989.      The will was executed on August 14, 1989, six
days before decedentlsdeath.         either that will nor the prior will
that it revoked acknowledged that the testator had a surviving
child.
        The decedent did in fact have a surviving child.                  The
plaintiff was born of the marriage of the decedent and Jessie May
Goodell on March 31, 1932, in Dillon, Montana.                  This birth is
confirmed by hospital and military records.           The father filed for
divorce in 1936, and custody of the child, Lester E. Liggett, was
granted to the mother.       Sometime after the couplels divorce, the
child's surname was changed to Grady.
        The record discloses that there was almost no contact between
the father and son over the succeeding years. However, it is clear
that the decedent was aware that his son was alive and living in
Washington as late as 1969, the last time the two saw each other.
     Upon the decedent's death and probate of his will, the
plaintiff petitioned   for a portion of the estate under the
provisions of d 72-2-602, MCA, the pretermitted child statute.    A

hearing on the matter was held on June 11, 1990.      The District
Court determined that the plaintiff was entitled to succeed to his
father's estate pursuant to the pretermitted child statute.      The
personal representative of the estate moved for reconsideration.
On reconsideration, the court determined that it had erred in its
earlier determination that 5 72-2-602, MCA, applied, and dismissed
Gradyls petition.   This appeal followed.
     The statute at issue in this case, 5 72-2-602, MCA, reads in
pertinent part:
     Pretermitted child. (1) If a testator fails to provide
     in his will for any of his children born or adopted after
     the execution of his will, the omitted child receives a
     share in the estate equal in value to that which he would
     have received if the testator had died intestate unless:
           (a) it appears from the will that the omission was
     intentional;
           (b) when the will was executed the testator had one
     or more children and devised substantially all his estate
     to the other parent of the omitted child; or
           (c) the testator provided for the child by transfer
     outside the will and the intent that the transfer be in
     lieu of a testamentary provision is shown by statements
     of the testator or from the amount of the transfer or
     other evidence.
           (2) 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 in the estate equal in value to
     that which he would have received if the testator had
     died intestate.
    The District Court premised its reconsideration of plaintifils
status as a pretermitted child on an earlier misreading of the
statute.     On reconsideration, the court noted that the statutory
language refers to children "born or adopted after the executiontt
of a will.     This is clearly not the case here.   The District Court
was correct when it reconsidered its original decision.
        Plaintiff argues that subsection (2) should also grant him
pretermitted child status.     Plaintiff argues that his father had
ltemotionally
            and psychologically killed off his sontt
                                                   sometime between
his last visit in 1969 and the drafting of decedent's first will in
1980.     This argument is wholly unsupported by any evidence.   There
is, in fact, contrary evidence that indicated that plaintifftswife
had contacted the decedent in his last years in an unsuccessful
attempt to set up a meeting between father and son.      The District
Court heard the evidence and concluded that none of it indicated that
the decedent believed his son to be dead. We conclude that the lower
court correctly determined the plaintiff's status as an heir pursuant
to 5 72-2-602, MCA.    We affirm the decision of the District Court.
        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 concur:




    Justices
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