Kujath's Estate, Matter of

• Citation: 169 Mont. 128,33 St.Rep. 117,545 P.2d 662
• Decision Date: 13 January 1976
• Docket Number: No. 13062,13062
• Parties: In the Matter of the ESTATE of Goldie Mahr KUJATH, Deceased.
• Court: United States State Supreme Court of Montana

Page 662

545 P.2d 662

169 Mont. 128

In the Matter of the ESTATE of Goldie Mahr KUJATH,

Deceased.

No. 13062.

Supreme Court of Montana.

Submitted Dec. 11, 1975.

Decided Jan. 13, 1976.

Longan & Holmstrom and Vicki W. Dunaway, James C. Capser (argued), Billings, for appellant.

Small, Cummins & Hatch, Gregory A. Jackson (argued), Helena, for respondent.

JOHN C. HARRISON, Justice.

This is an appeal from a judgment of the district court, Lewis and Clark County, declaring section 91-102, R.C.M.1947, invalid as being in contravention of Article II, Section 4, 1972 Montana Constitution.

Goldie Mahr Kujath died on August 8, 1973, two days after executing a will in which she left nothing to her surviving husband, John H. Kujath. The Kujaths, who had been childhood sweethearts, were married on April 5, 1973. Both had been married previously, had families and each had lost the first spouse by death. Goldie was a long time resident of Lewis and Clark County and John a long time resident of Carbon County. Following their marriage they resident in the home of John on a small farm near Fromberg, Montana. Late in July 1973, the couple came to Helena to attend to some of Goldie's business affairs and she died on August 8 in Helena.

The First National Bank and Trust Company of Helena was designated to act as executor of the Last Will and Testament of Goldie and it petitioned the court for admission of the Will to probate and for appointment as executor. Following appointment of the institution as executor, a petition was received on behalf of John H. Kujath, in accordance with section 91-3801, R.C.M.1947, asking that the court declare he was, pursuant to section 91-102, R.C.M.1947, entitled to one-third of his wife's estate. The executor opposed the petition and thereafter agreed to submit the matter to the district court for its determination. The district court held that section 91-102, R.C.M.1947, violated Article II, Section 4, 1972 Montana Constitution and denied the petition of John H. Kujath to have set over to him one-third of his wife's estate.

The sole issue before this Court is whether section 91-102 imposes a discriminatory restriction on a wife solely because of her sex and therefore is in violation of the United States and Montana Constitutions.

Section 91-102, provides:

'Married women, wills by. A married woman may make a will in the same manner and with the same effect as if she were sole, except that such will shall not, without the written consent of her husband, operate to deprive him of more than two-thirds of her real estate, or of more than two-thirds of her personal estate.'

This Court in a series of cases has held that when considering the constitutionality of a statute, the constitutionality is presumed and anyone attacking the validity of a statute has a heavy burden of providing the invalidity. City of Billings v. Smith, 158 Mont. 197, 490 P.2d 221; State v. Safeway Stores, Inc., 106 Mont. 182, 76 P.2d 81. In establishing this test, Montana is in accord with every jurisdiction in the United States. 16 Am.Jur.2d, Constitutional Law, § 137; 16 C.J.S. Constitutional Law § 98, p. 357.

In the instant case, the question of the constitutionality of section 91-102 is more exact, for this Court previously considered the constitutionality of the statute in an identical factual situation. In re Mahaffay's Estate, 79 Mont. 10, 24, 254 P. 875, (1927). There the same statute was attacked as being in violation of the Fourteenth Amendment to the United States Constitution in that it denied certain persons the equal protection of the law. In upholding the constitutionality of the statute, this Court noted:

'The rule has been many times declared by this court that when a statute is assailed as unconstitutional, the question is not whether it is possible to condemn, but whether it is possible to uphold, and that it will not be declared invalid unless its conflict with the Constitution, in the judgment of the court, is placed beyond a reasonable doubt. * * * Testing the statute under consideration by this rule and in the light of judicial history, we think its validity should be upheld.'

Respondent-executor argues that Mahaffay should not be controlling because the laws and the policy of the state, under Montana's 1972 Constitution, have changed. In support it cites Article II, Section 4, 1972 Montana Constitution, which reads:

'The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws. Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas.'

Further, that Montana ratified the Equal Rights Amendment which provides:

'Article _ _ Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex. * * *'

Relying on the changes noted heretofore, respondent argues the law and the policy of the state of Montana have changed since Mahaffay, favoring a greater equality between sexes.

We could agree with this argument if section 91-102, R.C.M.1947, stood alone in Montana's statutes. However, it does not stand alone but rather imposes upon married women a restriction reciprocal to that placed on men in other sections of the code. Section 91-102 must be read in conjunction with the dower and elective share statutes.

The dower right of a widow (Title 22, Chapter 1, sections 22-101 through 22-117), has been recognized in Montana since statehood. Section 22-107, R.C.M.1947, provides:

'Widow may...