## Facts

- Berger O. Mebust died intestate in February 1991.
- Mebust was unmarried, had no children, and was predeceased by his parents.
- Mebust had four siblings (three brothers and one sister), all of whom predeceased him.
- Mebust had eleven nieces and nephews; eight were living at his death and three had died earlier.
- Each of the three deceased nieces/nephews left surviving children.
- The District Court for the Twelfth Judicial District, Hill County, stated its intent to divide the estate into eleven equal shares—one share for each niece/nephew—giving each living niece/nephew one share and dividing each deceased niece/nephew’s one-eleventh share among that person’s children.
- Kristina Hanson and four other heirs petitioned the district court to divide the estate into four equal shares—one share for each of Mebust’s deceased siblings—with each sibling’s descendants sharing that sibling’s one-quarter portion.
- The district court reaffirmed the eleven-share distribution, and Hanson appealed.

## Issues

1. When an intestate decedent is survived only by nieces/nephews and by children of deceased nieces/nephews, does Montana’s representation statute require initial division into shares at the sibling level (four shares) or at the nieces-and-nephews level (eleven shares)?

## Decision

- The Montana Supreme Court affirmed the district court’s order.
- The estate was properly divided into eleven equal shares, counting both (a) the eight living nieces and nephews and (b) the three deceased nieces/nephews who left surviving children.
- The children of each deceased niece/nephew took only their parent’s one-eleventh share, divided among themselves, by right of representation.

## Legal Principles

- Under Mont. Code Ann. § 72-2-112, the court identifies the nearest degree of kinship to the decedent that contains at least one living heir.
- The estate is divided into as many equal shares as there are (1) living persons in that nearest degree and (2) deceased persons in the same degree who left surviving issue.
- Each living person in that nearest degree takes one full share.
- If a person in that nearest degree is deceased but left surviving issue, that person’s issue take the deceased person’s share by representation (substitution), divided in the manner directed by the statute.
- A more remote generation (such as children of nieces/nephews) does not set the initial number of shares when there are living heirs in a nearer generation.
- A method that assigns initial shares by sibling “lines” (one share per deceased sibling) conflicts with § 72-2-112 when the nearest degree with living heirs is the niece/nephew degree.

## Conclusion

Because the nearest kinship degree containing living heirs was the nieces-and-nephews generation, Montana law required the court to create eleven equal shares—one for each niece/nephew, including deceased nieces/nephews with surviving children—and to pass only those deceased nieces/nephews’ one-eleventh shares to their children by representation, so the district court’s distribution was affirmed.


Estate of Mebust, 843 P.2d 310 (1992)