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No. 83-187
IN THE SUPREME COURT OF THE STATE OF XONTANA
1983

IN THE MATTER OF THE ESTATE OF
FLORENCE I. HEISER, a/k/a FLORENCE

I. BROWN, Deceased.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Charles Luedke, Judge presiding.

COUNSEL OF RECORD: For Appellant: Herndon, Harper & Munro; Rod Hartman argued, Billings, Montana
For Respondent : Larry D. Herman argued, Laurel, Montana
Submitted: September 19, 1983 Decided: December 8, 1983
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Filed:

Clerk

District Court Judge Thomas A. Olson delivered the Opinion of
the Court.
The Estate of Florence Heiser appeals from an order of
the District Court for the Thirteenth Judicial District,
Yellowstone County, approving a claim for homestead allowance
by the Estate of Frank Hei-ser, the surviving spouse. FJe
affirm.
Florence had previously been married to Homer Brown.
They purchased a house on North 24th Street in Billings,
Montana. Homer Rrotin died intestate in 1956, and the 24th
Street house passed to Florence and their five children
pursuant to the intestacy laws. Most of the children deeded
their share to Florence.
In December of 1958, Florence Brown married Frank
Heiser. Except for a brief period of time, the Heiser's did
not live in the 24th Street house. Florence Heiser died
intestate on September 6, 1980. At the time of her death,
the house had been rented for a substantial period of time.
She was survived by Frank Heiser and her five children from
her previous marriage. Pursuant to the intestacy statutes,
one-third of her estate would pass to the estate of Frank
Heiser and two-thirds of her net estate to her children by
her previous marriage to Homer Brown.
On September 16, 1980, Frank Heiser executed a valid
will by which he left his entire estate to a former wife,
Ethel Heiser. On October 29, 1980, Frank Heiser died testate.
Prior to his death, Frank Heiser made no claim against the
Estate of Florence Heiser for the homestead allowance, family
allowance, or for exempt personal property. Neither did
Frank Heiser execute a waiver of interest in the Estate of
Florence Heiser.
On June 11, 1981, the Estate of Frank Heiser filed a
claim for homestead a.llowance and exempt property with the

Estate of Florence I. Heiser. Because of the small size of
the estate, the only property which is of sufficient worth to
satisfy the homestead allowa.nce claim would be the proceeds
from the sale of the 24th Street house. The claim for
homestead allowance was denied by the personal representative
of the Estate of Florence Heiser on July 9, 1981, and the
present action was commenced.

The District Court ord.ered that the petition of the
Estate of Frank Heiser, for the homestead allowance in the
Florence Heiser Estate, be granted. This appeal fol-lows.

The sole issue on appeal is whether the homestead
allowance vests as a matter of law in the surviving spouse
upon outliving the deceased for 120 hours, or whether a
surviving spouse personally must first make a claim for the
homestead allowance.

Montana's homestead allowance statute, section 72-2-801,
MCA, provides tha.t a surviving spouse (defined as one who
outlives his deceased spouse by 120 hours) who is domiciled
in this state is entitled to a homestead allowance of
$20,000. Minor or dependent children are also entitled to
such an allowance. The homestead allowance is exempt from
and has priority over all claims against the estate, and is
in addition to any share passing to the surviving spouse or
minor or dependent child by the will of the decedent unless
otherwise provided, by intestate succession, or by elective
share. See sections 72-2-801 and 72-2-205, MCA.

Appellant contends that because Frank Heiser failed to
make an affirmative, formal claim for the homestead allowance
during his lifetime, his estate is barred from making the
claim. Appellant argues t.he right to make a claim for a
homestead allowance terminates upon the surviving spouse's
death.

We find no statutory, claim-filing requirement for the
homestead allowance to vest, and decline to create such a
requirement. As noted, the only statutory condition
expressly set forth is that the surviving spouse survive the
deceased by 120 hours. Section 72-2-205, MCA; acc. Estate of
F4erke1 (Mont. 1980), 618 P.2d 872, 877, 37 St.Rep. 1782,
1787.

We do not believe it was the intent of the drafters of
the Uniform Probate Code that the estate of a surviving
spouse would lose the homestead allowance because it was not
exercised while the spouse lived. If the drafters wanted
such a requirement before the homestead allowance would vest,
they could simply have so provided.

We are not blind to the fact that a stranger, Frank
Heiser's former wife, will receive the sale proceeds of the
house that was bought by Homer and Florence Brown. The
homestead allowance was created primarily to protect the
surviving spouse against creditors and other claims against
the estate to the extent of $20,000. It is simply a grant by
law to benefit the surviving spouse or his estate.

To permit the ultimate decision to be influenced by the
equities and sentiments of each particular case trould thus
render the homestead allowance meaningless and impossible of
interpretation.

When the surviving spouse dies, this protection inures
to his estate just as the allowance would if it were claimed
before his death. Estate of Merkel, supra.

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The decision of the District Court is affirmed.

Hon. Thomas A. Olson Sitting for Justice Frank B. Morrison, Jr.
We Concur:

LWk.8 ~&

Chief . us ti&
Justice

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