Opinion
ORDER
The original opinion, Matter of Norwest Capital Management and Trust Co. (Mont.1985), 697 P.2d 930, 42 St.Rep. 493, is corrected to delete the last paragraph of the opinion and substitute therefore the following:
"In 1895, the State of Montana adopted the Montana Codes Annotated of 1895. In adopting the Code, the Legislature enacted Sec. 579 of the Code of Civil Procedure, which was a reenactment of Sec. 14 of the Code of Civil Procedure of 1877; by doing so, the Legislature adopted the current wrongful death statute language found in Sec. 27-1-513, MCA. Also in 1895, the Legislature adopted a new succession statute which defined heirs which definition controls the meaning of heirs found in the enactment of Montana's wrongful death statute. Section 1852, Probate Code of 1895, provides in part:
2. If the decedent leave no issue, the estate goes one-half to the surviving husband or wife, and the other to the decedent's father and mother in equal shares, and if either be dead the whole of said half goes to the other. If there be no father or mother, then one-half goes in equal shares to the brothers and sisters of the decedent, and to the children of any deceased brother or sister, by right of representation. If the decedent leave no issue, nor husband nor wife, the estate must go to his father and mother in equal shares, or if either be dead then to the other.
The plain language of the statute makes the mother the only heir under the facts of this case since 'heir' means those who take upon decedent's death under the intestacy statute. We affirm the trial court's judgment relying upon the Johnson [v. Marias River Electric Coop. (Mont.1984), 687 P.2d 668] rationale denying Marcella Maki the status of 'heir' and declaring Ruth Maki, decedent's mother, as sole heir."
With this correction, the original opinion is approved.
J.A. Turnage
Chief Justice
Frank B. Morrison, Jr.
Fred J. Weber
John C. Sheehy
John C. Harrison
L.C. Gulbrandson
Justices