No. 90-424 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

IN THE MATTER OF THE ESTATE 

OF HOWARD L. SANDER, Deceased. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable John S. Henson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Richard R. Buley, Esq., Tipp, Frizzell & Buley, 

Missoula, Montana 

For Respondent: 

Charles H. Recht, Esq., Recht & Greef, P.C., 

Hamilton, Montana 

Thomas W. Trigg, Esq., Missoula, Montana 

Submitted on Briefs: January 24, 1991 

El3 2 6 19911 Decided: February 26, 1991 

Filed: 

CLERK OF SUPREME GOUm 

STAYE OP. UOI\TANA 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

This is a dispute over property which was included in the 

estate of Howard L. Sander. The District Court of the Fourth 

Judicial ~istrict, Missoula County, ruled that four contested items 

of property were not part of the estate and were the sole property 

of the surviving joint tenant, Mary Sander. The estate of Jean 

Sander appeals. We vacate the judgment in part and affirm in part. 

The issues are: 

1. Did the District Court err in holding that the contested 

property was held by the deceased in joint tenancy with his exwife rather than in tenancy in common? 

2. Did the court improperly admit into evidence certain 

hearsay testimony concerning the decedent's statements of intent 

regarding ownership of the contested property? 

Howard and Mary Sander were married from 1946 through 1977. 

Their three surviving children are now adults. During their 

marriage, Howard and Mary owned, as joint tenants, ranch land and 

mineral rights in North Dakota. When the family moved to Montana 

in 1971, Howard and Mary disposed of the North Dakota real estate 

but retained mineral rights therein. They invested the proceeds 

of the sale of the North Dakota property in land which they 

purchased as joint tenants in Montana. 

In 1977, the marriage of Howard and Mary was dissolved. The 

dissolution decree provided in part: 
the real and personal property accumulated by 

the parties during their marriage [shall] be 

equitably distributed and if the parties are 

not able to come to an amicable agreement as 

to the division of their property, the Court 

will hold the necessary hearings to make such 

division in an equitable manner. 

Howard and Mary never sought further assistance of the court in 

dividing their marital property. 

Both during and after their marriage, Howard and Mary 

contracted to sell portions of their Montana property. Three of 

the properties in dispute here, which shall be referred to as the 

Van Wagoner property, the DiFrancesco property, and the Buffalo 

Bill Ranch, were sold on contracts. Howard and Mary also leased 

their North Dakota mineral rights. They usually split the payments 

received on the contracts and leases. 

Howard died in July 1987. At that time, he was married to 

Jean Sander, who became the personal representative of his estate. 

When she completed the inventory and appraisement for the estate, 

Jean included in the list of property the North Dakota mineral 

rights, the Van Wagoner property, the DiFrancesco property, and the 

Buffalo Bill Ranch. Mary filed an objection that these items 

should not be included in the estate. After a hearing, the court 

ruled that Mary held sole title to the disputed property as the 

sole surviving joint tenant. 
I 

Did the District Court err in holding that the contested 

property was held by the deceased in joint tenancy with his exwife rather than in tenancy in common? 

In Montana, a joint interest in property is created when the 

transfer of the property expressly declares the interest to be a 

j oint tenancy. Section 70-1-307, MCA. If not specifically 

declared in its creation to be a joint tenancy, an interest in 

favor of several people is an interest in common. Section 70-1- 

314, MCA. It is not disputed that the transfers of the four 

properties to Howard and Mary declared their interests to be joint 

tenancies. 

The argument pressed by Jean's estate is that the contracts 

for the three properties sold under contract for deed were held by 

Howard and Mary as tenants in common because Howard and Mary 

treatedthe proceeds of these contracts as owed one-half separately 

to each of them. As to the mineral rights, Jean's estate points 

out that Howard and Mary, acting individually, entered separate 

leases of those mineral rights. 

The North Dakota mineral interest is an interest in real 

property. The Montana District Court did not have jurisdiction 

over an interest in real property located in North Dakota. We 

therefore vacate the portion of the District Court's judgment 

relating to the North Dakota mineral interests. 
Howard and Mary sold the DiFrancesco property on a contract 

for deed which referred to them as "husband and wife, as Joint 

Tenants with the Right of Surviv~rship.~ That contract was later 

modified by an assignment of the original buyer's interest to 

DiFrancesco. The contract modification agreement did not state 

that Howard and Mary held the property as joint tenants, but it did 

state that "[wlith the exception of this modification of the 

payment schedule, the remainder of the [original agreement] shall 

remain in full force and effect." 

The Van Wagoner property was sold under a lease-option 

agreement. That document merely listed Howard and Mary by name as 

vlsellers.w Similarly, Howard and Mary sold the Buffalo Bill Ranch 

on a land purchase agreement which referred to them by name and did 

not identify them as joint tenants. 

Jean's estate argues that Howard's and Mary's interests 

changed, under the doctrine of equitable conversion, when they sold 

their property and acquired an interest in personal property (the 

proceeds of the sales) instead of an interest in real property. 

But "mere change of form through equitable conversion does not 

automatically change the nature of the interest." In Re Estate of 

Rickner (1974), 164 Mont. 51, 56, 518 P.2d 1160, 1162. There was 

no provision in any of the contracts for deed showing an intent of 

the joint tenants, Howard and Mary, to sever their joint tenancies. 

Though Howard and Mary directed the escrow agents to pay them 
separately, they could, and did, change those payment instructions 

from time to time. We conclude that the payment directions given 

to the escrow agents did not change the nature of Howard's and 

Mary's interests in the property. 

Jean's estate argues that when Howard and Mary split the 

proceeds of the sales of their property under the contracts for 

deed, the unity of interest, or the right of each to enjoy the 

whole, was destroyed, violating the "four unities" of their title 

as joint tenants. The rigid requirements of the common law 

doctrine of the four unities are not part of Montana's statutory 

law on property. We hold that the splitting of the proceeds of the 

sales did not terminate the joint tenancies due to violation of the 

four unities. 

Neither did the dissolution of the parties1 marriage destroy 

their joint tenancies in these properties. A joint tenancy is not 

extinguished as a result of the dissolution of the marriage of the 

joint tenants. Clark v. Clark (1963), 143 Mont. 183, 387 P.2d 907. 

We hold that the District Court was correct in ruling that 

the Van Wagoner property, the DiFrancesco property, and the Buffalo 

Bill Ranch remained the joint property of Howard and Mary Sander 

until Howard's death. We further hold that because Mary now holds 

title as the surviving joint tenant, those properties are not part 

of Howard's estate. ;c 
I1 

Did the court improperly admit into evidence certain hearsay 

testimony concerning the decedent's statements of intent regarding 

ownership of the contested property? 

The District Court allowed into evidence testimony about 

statements Howard Sander made indicating that he wanted his 

property to remain in joint tenancy with Mary Sander so that when 

he passed away the property would go to her and eventually to their 

children. The court ruled that these statements 1) were made by 

a predecessor in title to Jean Sander and were adverse or against 

the interests of Jean Sander, 2) were against Howard Sander's own 

interest as a tenant in common, 3) were statements of Howard 

Sander's then-existing state of mind or intent, and 4) were the 

best source of evidence. Jean's estate argues that these statements do not qualify under any exception to the rule against 

hearsay evidence. 

We need not discuss whether Howard's statements were admissible under any hearsay exception, because we conclude that the 

statements were not relevant. "Evidence which is not relevant is 

not admissible." Rule 402, M.R.Evid. The issue of the form of 

ownership of the contested property was determined by the deeds 

under which Howard and Mary acquired title to the property and the 

contracts by which they conveyed their interests in those properties. Howard's statements of his intent to remain a joint tenant 
with Mary were not needed to determine who held title to the 

properties. They did not have any tendency to make the existence 

of any fact of consequence more probable or less probable than it 

would be without the evidence. We therefore hold that it was error 

to allow into evidence the testimony about Howard's statements of 

intent to remain in joint tenancy with Mary. 

Nevertheless, because of our holding under Issue I, the 

judgment of the District Court is affirmed as to the Van Wagoner 

property, the DiFrancesco property, and the Buffalo Bill Ranch. 

As discussed above under Issue I, the portion of the judgment 

relating to the North Dakota mineral interests is vacated. 

We concur: