                                                No, 12891

             I N T E SUPREME C U T O THE STATE O M N A A
                  H           OR    F           F OTN

                                                    1975



L O A M, CONITZ, by h e r B r o t h e r and
 EN
Next F r i e n d , William F. Hafferman,

                                        P l a i n t i f f and A p p e l l a n t ,

             -vs      -
JOANE M, WALKER,

                                        Defendant and Respondent.



Appeal from:                  D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
                              Honorable Robert H Wilson, Judge p r e s i d i n g ,
                                                       .
Counsel of Record:

         For Appellant :

                      Hutton, Sheehy and Cromley, B i l l i n g s , Montana
                      John C. Sheehy argued, B i l l i n g s , Montana

         For Respondent :

                   Moses, Kampfe, T o l l i v e r and Wright, B i l l i n g s ,
                    Montana
                   D. Frank Kampfc argued, B i l l i n g s , Montana



                                                                Submitted:          June 16, 1975

                                                                   Decided : 0CT 3 1       1E
                                                                                            9
F i l e d : fir-
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Mr. Chief Justice James T. Harrison delivered the Opinion of
the Court.
        This is an appeal from a judgment determining the dis-
tribution of the estate of Edward H. Conitz.   This appeal was
brought by plaintiff's brother and next friend, William F.
Hafferman.   Plaintiff, Leona M. Conitz, wife of the deceased
is presently a patient at the Warm Springs State Hospital.
Leona is specifically appealing from that portion of the judgment
which finds valid inter vivos gifts between Edward H. Conitz,
deceased, and defendant, Joane M. Walker, in the following personal
property:    the checking account in Security Trust and Savings
Bank, the savings account in the Eureka Savings   &   Loan Associa-
tion of Eureka, California, and the 1966 Thunderbird automobile
owned by Edward.   Leona also appeals from that portion of the
judgment which holds that the remaining gifts made by Edward to
defendant were gifts causa mortis, and in effect holding defendant
is entitled to one-third of such causa mortis gifts.     Finally,
Leona appeals from that portion of the judgment requiring her to
bear the costs of her own hospitalization, care and maintenance
from the moneys which have been received by defendant.
        The district court's findings of fact, which are not in
dispute, show that Leona M. and Edward H. Conitz were married at
Whitefish, Montana, on January 7, 1939, and remained married until
the date of his death, November 23, 1972.   There were no children
born to this marriage.   After their marriage, Leona and Edward
lived in Kalispell, Portland, Oregon, and Billings.     They were
both always employed or engaged together in the grocery business
and during the course of the marriage Leona contributed continu-
ally to the building of the finances of the couple.
        Over a period of years, Leona contracted and suffered
from Parkinson's Disease, so that as the disease progressed it
became difficult for her to walk; then the disease affected her
arms, causing them to shake constantly.     Her condition progressed
to the point that she became nearly bedridden the latter part
of 1971.   Until then, however, she participated in the family
business actively, in spite of her condition, working in the
store until she could no longer do so, and later planning ad-
vertisements and sales for the grocery business conducted by
the couple.
        Leona and Edward had engaged in the grocery business
in Portland, Oregon, shortly after their marriage.       They jointly
owned a house in Portland.     Eventually they sold their Portland
grocery business, and in 1957 or 1958, moved to Billings where,
after a period of private employment, they started another groc-
ery business in Billings, known as "Gorham Park IGA"; this bus-
iness in turn they sold and a year later in 1967, began a grocery
business in Billings known as "State Street IGA".
        In addition to the grocery business, Edward and Leona
accumulated property over the years.    They jointly owned a house
on Rimrock Road in Billings; they jointly owned stocks, but some
stocks were kept in the name of Edward only; their checking account
was a joint account in the Security Trust    &   Savings Bank of Billings,
Montana; they maintained a joint safety deposit box where they
kept valuable documents.
        In the year 1967, Edward and Leona began the State Street
IGA business.    They purchased the land for the site, and contracted
to build a building upon it.    The land and the building were cap-
italized at approximately $120,900.    To provide funds for such
capitalization for land and buildings, the joint assets of the
parties were transferred from their joint ownership to a corpor-
ation they set up for the new business known as "Ed Conitz Shopping
Center, Inc.".   In 1967, Leona transferred the following joint
assets to the shopping center corporation:       her joint interest
in their home on Rimrock Road, which later became subject to
a contract for sale, which contract for sale is also owned by
the corporation; her joint interest in stocks of corporations
jointly held with her husband; her joint interest in the land
on which the State Street IGA was built; her interest as a
joint seller in the contract for sale of the Gorham Park IGA
Store, which the couple had formerly operated; and her interest
in a contract for sale in the house which they jointly owned
in Portland, Oregon.    In addition, the couple encumbered the
property for $50,000 by mortgage to the Security Trust   &

Savings Bank of Billings, under which mortgage indebtedness
monthly payments must be made and under which mortgage Leona is
co-obligor.
        After transfer of the properties to the corporation,
the corporation stock was issued in such manner that one share
of stock was issued to Leona, one share to the attorney who
handled the formation of the corporation, and 120,901 shares in
two certificates, to Edward.
        That same year, Leona and Edward executed mutual wills
leaving their property to each other upon their death.
        In October, 1971, Leona's condition became worse and she
voluntarily committed herself to the Warm Springs State Hospital.
        In December, 1970, Edward had contracted cancer of the
intestine and underwent an operation.   He seemed to recover from
this, but in 1971, he sold the inventory and equipment of the
State Street IGA Store under a contract, which contract for sale
of inventory and equipment remained as an asset of the shopping
center corporation.    The ownership of the land and building on
which the store is situated remained also in the corporation.
Edward attended Eastern Montana College where he majored in lang-
uages and-achieved honors.   He had a recurrence of his cancer in
late July, 1972.    He was hospitalized for this condition in Billings
Deaconess Hospital in Billings on August 1, 1972, where it was
found that his condition was considered terminal.
        In October, 1971, and subsequent to the time that Leona
voluntarily committed herself to the State Hospital at Warm
Springs, Edward and defendant, Joane M. Walker, met by chance
during their lunch hour at Eastern Montana College.          They had
been acquainted with each other previously by reason of defendant
having been a customer of Edward and Leona while they were in the
grocery business.   Edward and defendant thereafter dated.
        On or about August 2, 1972, while in the hospital, Edward
wrote out a direction to the Security Trust      &   Savings Bank that
would allow defendant access to his and Leona's joint safety de-
posit box; Leona's consent was not obtained.         On August 2, 1972,
defendant went to the bank, obtained entrance to the joint safety
deposit box, and removed several stock certificates and the will
of Edward.   These documents she delivered to an attorney in Billings.
The attorney eventually obtained a bank certification of Edward's
signatures on the stock certificates and then caused the certifi-
cates to be transferred and delivered to Edward's father.
        On August 6, 1972, Edward, while in the hospital, made
and executed a will in which he left all of his property to de-
fendant "subject to my wife's dower interest."
        On August 7, 1972, Edward signed and delivered to defend-
ant and the same attorney, a check upon the joint checking account
of Edward and Leona in Security Trust    &   Savings Bank.    The check
was made out to defendant and was signed by Edward; the remainder
of the check was in blank at delivery.       Defendant and the attorney
went to the bank and through an officer, ascertained the balance
in the account, which the bank officer entered upon the check,
and dated it.   The check was then used to withdraw all of the


                             - 5 -
funds in the joint checking account and the whole balance,
amounting to $8,381.09, was transferred to an account started
that day in the same bank in the sole name of defendant.
          Edward also had a savings account in the Eureka Savings
&   Loan Association of Eureka, California in his name.   On August
7, 1972, the account was closed and the balance, $1,531.06, was
sent to Edward while he was in the hospital by means of a draft
payable to him.   He endorsed the draft and gave it to defendant
who also endorsed her name on the draft and deposited it in her
personal savings account at Valley State Bank in Billings.
         On August 14, 1972, Edward endorsed the assignment forms
on the two stock certificates which he held in Ed Conitz Shopping
Center, Inc., one certificate for one share and the other for
120,900 shares, and delivered and assigned them to defendant.
         While Edward was in the hospital he endorsed and delivered
to defendant the title to his 1966 Thunderbird.   He also signed
the title to a trailer home owned by himself over to defendant
who in turn sold the trailer to a third party and transferred title.
         As a result of all these transfers, Edward transferred
all the property which he owned which was of any consequence.
         Edward was discharged from the hospital on August 30,
1972, and thereafter moved to the home of defendant where he re-
mained until his death November 23, 1972.   On November 6, 1972,
he executed a codicil to his will.   However, by virtue of the
transfers and assignment made while in the hospital he had at
the time of making the codicil to his will no estate of any kind
which could be subject to probate.
         The district court found valid inter vivos gifts of the
checking account, the savings account and the 1966 Thunderbird.
The district court found that all other gifts made by Edward to
defendant were gifts causa mortis and held that since a person
cannot do by gifts causa mortis that which could not be accomplish-
ed by will, that Leona could renounce the will and take her dower
share of the estate.     Therefore, the court awarded Leona two-third
interest in the estate aside from the checking account, savings
account and Thunderbird automobile.     From that judgment Leona
M. Conitz brings this appeal.     There was no cross-appeal by de-
fendant.
        There are many issues and arguments presented by both
sides of this dispute.    The arguments themselves are no less com-
plicated than the fact situation we set out above.    Therefore, in
the interest of brevity, this Court will discuss only that issue
which we find dispositive of the case:    Whether a contract existed
between Leona and Edward to leave in their wills, their property
to each other upon their deaths?
        Leona argues that there was sufficient evidence presented
for this Court to find that a contract to execute mutual wills
existed between Leona and Edward.     Respondent, however, argues
that there is no such evidence and that Leona's contract theory
was pulled by Leona out of the air.
        It is clear that in Montana a person may make a valid
contract to dispose of his property by will.    Erwin v. Mark, 105
Mont. 361, 73 P.2d 537.
        This Court in Rowe v. Eggum, 107 Mont. 378, 87 P.2d 189,
enforced an oral agreement of a decedent not to change a will
made in favor of the plaintiff.
        The rule of law in Montana is that proof of an oral con-
tract by a deceased to leave property by will:
       " * * * must be clear, cogent, and convincing,
       and that the making of such an oral contract or
       agreement must be established by disinterested
       witnesses." Cox v. Williamson, 124 Mont. 512,
       227 P.2d 614.
        Reviewing the evidence before us, we see that in 1967
Leona transferred considerable property to the "Ed Conitz Shop-
ping Center, Inc."     She also assumed considerable obligation in
the financing of that corporation as a co-obligor of the note
involved.    In return she received only one share of stock in that

corporation.    At that same time Leona and Edward executed wills
leaving their property to the other upon their death.
          Leona testified that the agreement between herself and
Edward was that "    * * *   when one of us goes first then everything
that is left belongs to the remaining one."
          The attorney who drafted the wills testified:
          " * * * Ed's old Will gave everything to Leona and
          Leona's old Will gave everything to Ed."
          Mrs. Eldon Shirley, Edward's aunt, testified that Edward
told her :
          " * * * if Leona goes first I get it all, if I go
          first Leona gets it all."
          Perhaps each item of evidence above standing by itself
does not establish a contract between Edward and Leona to make
mutual wills leaving their property to the other.        However, viewed
as a whole this Court finds that the oral contract between Leona
and Edward has been established in this case by clear, cogent and
convincing evidence and by the testimony of disinterested witnesses,
Edward's attorney and his aunt.
          To hold otherwise would be to ignore the obvious:     A woman
does not work all her life next to her husband, help build a large
estate, transfer her share of that estate to a corporation and
assume a long-term obligation on an outstanding note, all for one
share of stock in that corporation with no guarantee of any future
financial security.    This is especially true when she is sick from
a crippling disorder and unable to ever support herself in the
future.
          The judgment of the,district court is reversed.



                                   ''w   Chief Justice
We c o n c u r :




   Justices
