                            No. 80-181
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                1981


THE MONTANA CONFERENCE OF THE SEVENTH-
DAY ADVENTIST CHURCH, a non-profit
corporation,
                        Plaintiff and Appellant,


ESTATE OF SOPHIE MILLER, Deceased, by
ARTHUR B. HARR, et al.,
                        Defendant and Respondent.


Appeal from:   District Court of the Fourth Judicial District,
               In and for the County of Missoula.
               Honorable John Henson, Judge presiding.
Counsel of Record:
      For Appellant:
          Gregory 0 Morgan argued, Bozeman, Montana
                   .

      For Respondent:
          Murray, Holt and McChesney, Missoula, Montana
          Harold L. Holt argued, Missoula, Montana
          Morales, Volinkaty & Harr, Missoula, Montana
          Jon E. Ellingson, Missoula, Montana


                             Submitted:   February 19, 1981
                              Decided:    June 1, 1981




     TW
     A ,        (2. ))zk&&+
                                   Clerk
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.

     Plaintiff, Montana Conference of the Seventh Day
Adventist Church (Conference), appeals from a declaratory
judgment of the Missoula County District Court holding that
a personal guardianship and a property conservatorship did
not prevent Sophie Miller from revoking a trust in which
the Conference was both the trustee and a beneficiary in the
event of her death or "incompetency."
    Although the issues can be stated in various ways, the
essence of this appeal is the claim by the Conference that
because Sophie Miller was under a personal guardianship and
her property was under a conservatorship, she was legally
incapacitated from revoking the trust--a trust which provided
that it was irrevocable upon the "incompetency" or death of
Sophie Miller.   A second issue inherent in this appeal,
although not directly raised by the Conference, is the
contention that the Conference proved at trial that Sophie
Miller did not have the mental capacity on July 8, 1977 to
revoke the trust.
    After the Conference was notified that Sophie Miller
had revoked the trust and the Conference refused to abide by
the revocation, the Conference filed a declaratory judgment
action in September 1977 to have the trust revocation
declared invalid.   The Conference, as trustee, claimed that
Sophie Miller was legally incompetent to revoke the trust
because she was then under a personal guardianship and her
property was in the hands of a conservator.     The complaint
did not allege that Sophie Miller did not have the mental
capacity on July 8, 1977 to revoke the trust.    However, the
defense was based in part on the contention that Sophie
~illerhad the required mental capacity to revoke the trust.
     The trust, created in 1968,when Sophie Miller was 85
years old, named the Conference as trustee and beneficiary.
It was to become irrevocable upon the death or incompetency
of Sophie Miller.      Before its revocation, it was amended 6
times, and usually each amendment increased the Conference's
share of the estate.     Originally, 30 percent of Sophie's
estate was to go to the Conference, 15 percent to the General
Conference Foreign Mission Fund, and 15 percent was to go
to the Voice of Prophecy (a Conference-connected organization
which is an organization that provides a way for Seventh Day
Adventists to continue spreading the good word after their
death).   The remainder of the estate was to go to Sophie's two
daughters and her grandchildren.       Under the last trust
amendment, the Conference was to get 56 percent of the
estate and the Voice of Prophecy was to get 25 percent of
the estate.   The remaining estate (19 percent) was to go to
Sophie's daughters and her grandchildren.
     In April 1977, Ruth Mahle, Sophie Miller's granddaughter,
petitioned the District Court to be appointed personal
guardian for Sophie and conservator for Sophie's estate.
These petitions were filed under the provisions of the
Uniform Probate Code, effective July 1, 1975.     The court
appointed the granddaughter as temporary guardian but took
no immediate action on the application for conservatorship.
The court set July 7, 1977 to hear the application for
guardianship and application for conservatorship.       In
early June 1977, the District Court appointed attorney
Arthur B. Harr to represent Sophie Miller at the guardianship
and conservatorship hearing.    The trust revocation came

about while Harr was acting in his capacity as attorney for
Sophie Miller.
                                - 3-
      The circumstances leading to the trust revocation
in July 1977, were triggered by Sophie's illness in the
spring of 1977.     Until the spring, Sophie Miller was still
able to take care of herself and her Missoula home.    But
after a two week hospital stay in the spring, Sophie was very
weak and could not take care of herself or her home.    In
April 1977, Ruth Mahle, a granddaughter, petitioned the District
Court to be appointed Sophie's personal guardian and conservator
of her property.    She was appointed as temporary guardian but
no order was then entered on her petition for conservatorship.
      For the next two months, Frieda Miller Benson, a daughter,
and Ruth Mahle, the granddaughter, were unable to agree on
where Sophie Miller could best be cared for, and had Sophie
in and out of her Missoula home, hospitals and nursing homes.
Finally, in June 1977, the granddaughter, as temporary
guardian, brought Sophie to a nursing home in Ronan, and
Sophie lived there until her death in February 1978, at age
96.   The granddaughter, who visited Sophie Miller more than
other relatives, both before and after her illness, lived
in St. Ignatius, near Ronan, and this made it easier for
her to visit Sophie and attend to her needs.    The granddaughter

could not do this as easily if Sophie had stayed in a nursing
home in Missoula.
      As stated earlier, in early June 1977, the ~istrict
Court appointed attorney Harr to be guardian ad litem for
Sophie Miller, and to represent her interests on the application
of the granddaughter to be personal guardian and conservator
of Sophie's property.     On June 15, Harr had a long visit
with Sophie Miller at the Ronan nursing home--and tape
recorded this conversation.    Most of the directed questioning
concerned whether Sophie Miller wanted the granddaughter,
Ruth Mahle, to be her guardian and conservator.     The response
was that she would rather have Ruth Mahle do this than
anyone else. (This tape and a transcript of the tape were
admitted in evidence at trial. )
     On July 6, the day before the scheduled hearing, Harr
again visited Sophie Miller, and had a long conversation
with her--which was again tape recorded.      (This tape and
a transcript of the tape wcreadmitted in evidence at the
trial.)   She expressed dismay that by the trust agreement
and her will, she had left so little to her children and
grandchildren.   In response to a very nonleading question
asking her what she should do about her property, she
declared that the property distribution scheme was "absolutely
not" justice to her children and grandchildren.     It was
because of this clearly expressed declaration that Harr
later prepared the trust revocation for Sophie to sign.
     The hearing on the application for guardianship and
conservatorship took place on July 7, 1977.      It was a brief
hearing, lasting no more than 30 minutes, and, unfortunately,
no court reporter was present.     Although Sophie Miller was
not present, Harr was there to represent her interests as
her court-appointed attorney.      The Conference disputes what
took place, but the unrefuted testimony as to what took
place is that both the guardianship and conservatorship
applications were made because of the feeling that Sophie
Miller could not take care of her person or property, and
not because she lacked the mental capacity.
     No order was issued on July 7, but four days later
(on July ll), the District Court appointed the granddaughter
as guardian for Sophie Miller and also attorney Harr as
temporary conservator of Sophie Miller's property. The
guardianship order stated that Sophie Miller was "incap-
acitated by physical disability and advanced age     . . ."    The
conservatorship order stated "that Sophie Miller is a
person for whom appointment of a conservator is proper for
reasons of physical disability and advanced age."
     On July 8 (between the July 7 hearing and the July 11
orders) Sophie Miller signed the trust revocation.    On this
day, acting on the basis of the tape-recorded conversation
he had with Sophie Miller on July 6 to the effect that she
did not like the property distribution scheme set up in the
trust, attorney Harr prepared a trust revocation and took it
to Ronan for Sophie Miller to sign.   She signed it in the
presence of Harr.
     On July 12, the day after he had been appointed con-
servator for Sophie Miller's property, Harr wrote to the
Conference and told them that Sophie Miller had revoked the
trust on July 8, that he had been appointed conservator on
July 11, and that Ruth Mahle had been appointed guardian on
July 11.   He also requested that the Conference turn over
the trust assets to him.
     Later, on August 17, 1977, Harr visited Sophie Miller
and had another tape-recorded conversation with her in the
morning--his object was to find out what she wanted done
with her property.   (The tape and a transcript of the tape
we= admitted in evidence at the trial.)   Later that afternoon,
Sophie Miller signed a will that was witnessed by Elizabeth     +



J. Doty, and Dr. Gerald Moredock, a medical doctor.   This
will gave the Conference 25 percent of Sophie Miller's
property, and the remaining 75 percent was to be divided 15
percent to each of two daughters, and 45 percent was to be
split between 11 grandchildren.   The estate is a modest one.
     Between July 1, 1977 and September 19, 1977, (when the
Conference's petition for declaratory judgment was filed)
Harr invited the attorney for the Conference or any member
of the Conference to visit Sophie Miller at the nursing home
so that they could get firsthand knowledge of what her
wishes were on her property distribution and so they could
observe her mental capacity.    They never visited Sophie,
even though the Conference had been told that even under
Sophie's new will, the Conference was to get 25 percent of
her property.     Sophie died on February 19, 1978, before this
case was tried.
    At trial, and on appeal, the Conference argues that the
law in effect in 1968, when the trust was first created,
should control this proceeding.    With this as its premise,
the Conference then argues that the 1968 statutory scheme on
guardianships incapacitates a person from revoking a trust
if a guardian has been appointed.    We do not have to decide
this second question because the Conference is in error on
its first premise.      The Uniform Probate Code (effective
July 1, 1975) was in effect for two years when the guardian
and conservator were appointed on July 11, 1977.
     Section 72-1-107, MCA (formerly section 91A-6-102,
R.C.M. 1947) not only provides an effective date of July
1, 1975, but more important here, declares that the code is
to govern all proceedings in court after its effective date
unless it would be unjust to do so.     Because the 1968 statutes
had been repealed in 1975, we see no reason to apply them
to a guardianship and conservatorship proceedings started in
1977, two years later.     Further, section 72-1-107, MCA
(formerly section 91A-6-102), states that the Uniform Probate
Code must govern if it conflicts with any statutes adopted
before enactment of the Uniform Probate Code.     If there is
no conflict between the 1968 and 1975 law, the Conference
then can show no prejudice by the use of the 1975 statutes,
for the result would be the same under either the 1968
or 1975 statutes.     But should there be a conflict between
the 1975 law and the 1968 law, section 72-1-107, MCA, of
the 1975 law expressly declares that the Uniform Probate
Code shall control.    The Conference has raised no constitutional
issue, and we see no valid constitutional argument to
prevent application of the 1975 Uniform Probate Code in
this case.   We hold, therefore, that the Uniform Probate Code
controls.
     The Conference further contends that even under the
Uniform Probate Code, the combination appointment of a
personal guardian plus a conservator for the estate, made
Sophie Miller legally incapable of revoking the trust.    First,
the Conference is in error on its dates.    When the trust was
revoked on July 8, 1977, a permanent guardian had not yet
been appointed, nor had a conservator been appointed.    That
was not done until July 11, 1977.     (It is true, however, that
the granddaughter had been appointed the temporary guardian
in April 1977, before the revocation of the trust agreement.)
Second, assuming that a conservator had been appointed before
Sophie Miller revoked the trust, it would have had no effect
on her capacity to revoke the trust.    Section 72-5-421(5),
MCA (formerly section 91A-5-408, R.C.M. 1947) expressly states
that an order finding a basis to appoint a conservator "has
no effect on the capacity of the protected person."    Thus,
even if a conservator had already been appointed before Sophie
Miller revoked the trust, the order could not have decided
her mental capacity to revoke the trust.    Even the order
appointing the conservator (entered after the trust was
revoked) is of no aid to the Conference's argument.    It stated
that "Sophie Miller is a person for whom appointment of a
conservator is proper for reasons of physical disability
and advanced age."
     Although all of the same considerations do not apply,
we reach the same basic decision on the guardianship pro-
ceedings.    The application for appointment of a guardian
alleged that Sophie Miller   ".   . . is an incapacitated person
by reason of the fact of advanced age and -
                                          diminished mental
capacity."    (Emphasis added.)   But the allegation as to
"diminished mental capacity" is not found within the definition
of an "incapacitated person" in section 72-5-101(1), MCA,
which sets out the grounds to apply for guardianship of an
adult. Of course, no order had been entered on July 8 appointing
a guardian--that order did not come until July 11.     It is
true that Ruth Mahle had already been appointed the temporary
guardian of Sophie Miller (April 7, 1977) but we do not
have that order before this Court.     Even if we had that
order, it would not change the result here because all the
evidence points to the fact that a guardianship was desired,
and a guardian was appointed, because Sophie Miller was
physically incapable of taking care of herself, not because
she was mentally incapacitated.
     There is no record of the guardianship hearing, but the
unrefuted testimony at trial from those who were present at
the guardianship proceeding on July 7, is that application
was made on the basis of, and the testimony was, that Sophie
Miller was physically incapable of taking care of herself.
The July 11 order setting out the reason for appointment of
a guardian, stated "that Sophie Miller was 'incapacitated by
physical disability and advanced age.'"      Furthermore, we
cannot ignore the efforts of attorney Harr in inviting any
member of the Conference or its attorney to visit with Sophie
Miller to find out for themselves that Sophie Miller had
the mental capacity to revoke the trust and that she intended
to do so.   The Conference ignored those offers, apparently
on the advice of its lawyer.
     We do not feel we are splitting straws or miscontruing
the intent of the guardianship statutes in reaching this
decision.   The statute setting out the grounds for appointment
of a guardian for an adult, section 72-5-101(1), supra, is
directed at the inability of one to make "responsible decisions
concerning his person   . . ." or   "a rational decision with
respect to his need for kreatment     . . ."    It is silent on
the legal effect a guardianship appointment has on the
ward's capacity to sign legally binding papers.       Therefore,
we are unwilling to declare here that Sophie Miller lost her
legal capacity to revoke the trust when a temporary guardian
had been appointed. The statute is not directed at incapacitating
a ward from making any decisions regarding his property.
Further, the guardianship hearing was not directed at Sophie
Miller's mental capacity, and the order appointing the
guardian declared that Sophie Miller was "incapacitated by
physical disability and advanced age."         We reserve judgment
on the effect of a guardianship appointment where mental
capacity is the issue and where a guardian is appointed
because the ward is mentally incapacitated.        This is not the
issue in this case.
     Thirty-one states, plus England and Canada, support
the rule that the mere fact that an adult is under a guardian-
ship does not deprive him of the power to make a will, or to
revoke a will made by him, before he, as an adult, was
placed under guardianship.   89 A.L.R.2d   1122; also see, 79
Am.Jur.2d Wills S 58, at 319.   The reason is that an adult
may require a guardianship because of incapacity in one

particular area, but he may still be entirely competent in
other respects. 89 A.L.R.2d    at 1122.   That is the situation
here:   Sophie Miller needed a guardian not because of her
mental incapacity, but because of her physical incapacity--
she could no longer take care of herself or her home.
     After ruling that the 1975 Uniform Probate Code applied
and that the guardianship order and conservatorship order
did not nullify the right of Sophie Miller to revoke the
trust agreement, the trial court then had to interpret the
word "incompetency" as contained in the trust.     The word
"incompetency" was not defined in the trust agreement, nor
is the word used in the Uniform Probate Code.     Because there
is room to disagree on the meaning of "incompetencyn,the
trial court declared that the meaning is ambiguous and
strictly construed the meaning against the Conference because
the Conference chose the word for its printed forms.      The
trial court therefore construed the word "incompetency" to
mean the "complete mental incompetency and lack of under-
standing of the Trustor [Sophie Miller] at the time she
executed the revocation."     The trial court then concluded
that Sophie Miller was mentally competent on the day she
signed the trust revocation, and that she intended to revoke
the trust.   The Conference objects to the trial court strictly
construing the word "incompetency" against the Conference,
but the trial court was correct.     Any ambiguity should have
been resolved against the Conference, for the Conference not
only supplied the printed form for the trust agreement but
was also a beneficiary under the trust agreement.
     Finally, although the Conference did not raise an issue
the trial court's findings and conclusions that Sophie
Miller was mentally competent when she revoked the trust,
the respondents argue that this is the only issue and that
the evidence abundantly shows that Sophie Miller was competent
when she revoked the trust.    Several witnesses testified to
Sophie Miller's mental condition, including Harr, who was
present when she revoked the trust, the granddaughter Ruth
Mahle, who had more opportunity than anyone to observe
Sophie Miller's mental condition, and Elizabeth Dc:ty, the
owner-administrator of the Ronan nursing home where Sophie
Miller stayed. In addition to their testimony, tape recordings
and transcripts of conversations Sophie Miller had with Harr
were admitted in evidence.    Only one witness, Frieda Miller
Benson, Sophie Miller's daughter, testified that she did not
believe Sophie had the mental capacity to revoke the trust.
     The Conference attacks the testimony of attorney Harr,
of the guardian, Ruth Mahle, and of the nursing home operator,
Elizabeth Doty, on the grounds that each of them had something
to gain.   But they were competent witnesses and the weight
to be given to their testimony was for the trial court, not
this Court.   The trial court chose to believe them.
     The judgment of the District Court upholding Sophie
Miller's revocation of the trust agreement is affirmed.
We Concur:
