No. 81-527 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

SHERRIE HERRIG, KATHY HERRIG, 

and PATTI HERRIG, 

Plaintiffs and Respondents, 

-vsHELEN M. HERRIG, 

Defendant and Appellant. 

Appeal from: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Peter G. Meloy, Judge presiding. 

Counsel of Record: 

For Appellant: 

Skedd, Ashley, McCabe & Weingartner; J. C. 

Weingartner, Helena, Montana 

For Respondents: 

Smith Law Firm, Helena, Montana 

Submitted on Briefs: April 1, 1982 

Decided: July 12, 1982 

Filed : JuL 12 1982 
Mr. Justice Fred J. Weber delivered the Opinion of the 

Court. 

Defendant appeals from summary judgment in this action 

for enforcement of divorce decree in the First Judicial 

District Court, Lewis and Clark County. We affirm the 

District Court. 

Defendant presents the following issues to this Court 

for review: 

1. Whether the information contained in the deposition 

of the husband's attorney was inadmissible as violative of 

the attorney-client privilege. 

2. Whether the provision in the divorce decree requiring 

the father to maintain a life insurance policy for the 

benefit of his children was valid and within the power of 

the District Court to order. 

Charles and Betty Herrig were divorced on February 24, 

1972. The three minor children of the marriage remained 

with their mother, who received $50 per child per month in 

support, payable until each child reached her majority. The 

divorce decree also provided, in pertinent part: 

"The defendant [husband] shall retain Twentytwo Thousand Five Hundred Dollars ($22,500.00) 

life insurance on his own life, naming his 

children as beneficiaries thereof. . ." 

Charles Herrig carried life insurance with Metropolitan Life 

Insurance Company, through his employer, Montana Power 

Company. The policy was worth $22,500 at the time of the 

divorce. 

Charles Herrig remarried, and on February 26, 1975, 

changed the beneficiary on his Metropolitan Life Insurance 

policy, designating his second wife, defendant Helen Herrig, 

as sole beneficiary. On October 27, 1979, Charles Herrig 

died. At the time of his death, only one of the three 
children from his marriage to Betty Herrig was still under 

18 years of age. The value of his life insurance policy was 

$50,000. In November of 1979, defendant claimed, and received, 

the entire $50,000 from Metropolitan Life. 

Plaintiffs, Charles Herrig's three children from his 

first marriage, filed suit against defendant on August 4, 

1980, seeking recovery of $22,500 from the proceeds of the 

insurance policy, plus interest. 

On November 3, 1981, following hearing on plaintiffs' 

motion for summary judgment, the District Court granted the 

motion. Defendant appeals to this Court. 

During discovery, plaintiffs deposed the attorney 

(Sternhagen) who had represented Charles Herrig in the 1972 

divorce action. Defendant objected to the use of the deposition 

and certain papers from the Herrig divorce file, arguing 

that the information therein was protected by the attorneyclient privilege and could not be considered in this action. 

The District Court in its findings of fact and conclusions 

of law entered November 2, 1981, stated: 

"Because of Mr. Sternhagen's uncertainty regarding Mr. Herrig's intention, this deposition does 

not support either plaintiffs' contention that 

the daughters were to receive the insurance 

proceeds no matter what, or defendant's contention that Herrig wanted to retain the right 

to change the beneficiary on the policy. Therefore, this deposition has not been used by this 

Court to discern Mr. Herrig's intent concerning 

the disposition of the insurance proceeds." 

However, the order included extensive reference to and 

reliance upon the divorce file submitted with Sternhagen's 

deposition which leads us to conclude that the District 

Court did, in some degree, rely upon the challenged information. 

Thus, the question remains whether evidence, which could be 

barred by the attorney-client privilege during the client's 
lifetime may be disclosed after the client's death. 

The parties do not dispute that the pertinent information 

in Sternhagen's deposition as well as his file on the Herrig 

divorce could have been barred during Herrig's lifetime, as 

work product or privileged communication. But defendant 

argues that section 26-1-803, MCA, read together with section 

37-61-401(2), MCA, indicates the intent of the legislature 

to extend the attorney-client privilege beyond the death of 

the client. Those sections provide: 

"An attorney cannot, without the consent of 

his client, be examined as to any communication made by the client to him or his advice 

given thereon in the course of professional 

employment." Section 26-1-803, MCA. 

"The death of a party to an action or proceeding does not revoke the authority of his attorney of record in said action or proceedings but 

the authority of the attorney is continued in 

all respects the same and with like effect as 

it was prior to the death of such party until 

such attorney shall withdraw his appearance in 

said action or proceeding or some other attorney 

shall be substituted for him or his authority 

shall be otherwise terminated and entry thereof 

made to appear in the record of such action or 

proceeding." Section 37-61-401(2), MCA. 

Defendant further argues that because the deceased 

client can no longer contradict his attorney's disclosures, 

it is crucial that the privilege be applied, to prevent the 

attorney from disclosing evidence which can be used against 

the client's estate. 

Plaintiffs argue that the action is not against the 

estate of Charles Herrig, but against defendant as constructive 

trustee, to recover money from her which they claim was 

equitably assigned to the children. 

Plaintiffs also point out that section 26-1-803, MCA, 

has never been construed by this Court where the client is 

deceased. They argue that defendants have misapplied section 

37-61-401(2), MCA, which, according to plaintiffs, does no 
more than continue the authority of an attorney to serve in 

a pending action after the death of his client. Plaintiffs 

cite State ex rel. Ross v. District Court (1967), 150 Mont. 

233, 433 P.2d 778, as supporting the same limited extension 

of an attorney's authority beyond the death of his client. 

Plaintiffs urge this Court to adopt the generally 

accepted exception to the privilege rule. In 81 Am. Jur. 

2d, WITNESSES 211, 8175, the general rule regarding duration 

of privilege is stated as follows: 

"Ordinarily, the protection given by the law 

to communications made during the relationship of attorney and client is perpetual, 

and does not cease with the termination of 

the suit, nor is it affected by the party's 

ceasing to employ the attorney and retaining 

another, or by any other change of relation 

between them, or by the death of the client. 

The seal of the law once fixed upon them remains 

forever, unless removed by the party himself 

in whose favor it is there placed. Some 

privileged communications, however, may lose 

their privileged character by the lapse of 

time. That which may be confidential at one 

time may not be so at an after time. Thus, 

directions to an attorney to make a certain 

contract are a confidential communication before but not after the contract is made. And 

while an attorney cannot be compelled to disclose the contents of an answer in equity before it is filed, he may be afterward. 

"The privilege -- does not apply in litigation, 

-- after the client's death, between parties, all 

-- of whom claim under the client, --- as where the 

auestion -. - - - - - - - ---- is - as to who shall -A take bv succession 

the property -- of the decedent. And -- so generally, 

where --- both of the parties - to - a lawsuit claim 

under a deceased client, neither can assert 

the prrvilege against the other. -- This rule 

-- has been applied where the heirs of - - a grantor - 

-- sued the grantee of a deed for recovery of - the property conveyed by the decedent." (Emphasis 

added. ) 

Plaintiffs refer us to McSpadden v. Mahoney (1967), 

Okla. , 431 P.2d 432, where the Oklahoma Supreme Court 

held that both the physician and the attorney for deceased 

donor were competent to testify in an action by the deceased 

donor's heirs at law against the donee to set aside inter 
vivos gifts of real property. The court made the following 

statement concerning the attorney-client privilege after 

death of client: 

"There can be no doubt that the testimony of 

an attorney concerning communications with his 

client is not admissible against the client 

where the privilege against such testimony is 

properly invoked. Jayne v. Bateman, 191 Okl. 

272, 129 P.2d 188. The same rule applies to 

the testimony of a physician. St. Louis-San 

Francisco Ry. Co. v. Kilgore, Okl., 366 P.2d 

936. But the privilege to exclude such testimony is not applicable in the instant proceedings. Here both parties are claiming under 

the deceased, the plaintiff as an heir and 

devisee and the defendant as a grantee and 

assignee. In Gaines v. Gaines, 207 Okl. 619, 

251 P.2d 1044, a case in which both parties 

were claiming property under an assignment 

from the deceased, this court held: 

"'The --- rule of privilege between attorney and 

client -- does not apply in litigation, after 

the client's death, between parties, -- all of 

whom claim under -- the same client.' 

"This exception has often been applied in 

cases in which heirs or devisees of the grantor sued the grantee of a deed for recovery 

of the property conveyed. (citing cases)." 

431 P.2d at 440. (Emphasis added.) 

Plaintiffs also rely upon Bergsvik v. Bergsvik (1955), 

205 Or. 670, 291 P.2d 724, which considered whether or not 

testimony of an attorney for the deceased client should be 

admitted where the conversation with the deceased client and 

the attorney concerned the interpretation of a community 

property agreement. The community property agreement conflicted 

with the will, and the testimony of the attorney was necessary 

to clear up the conflict. The court, in response to the 

objections that such information was privileged between the 

attorney and client, responded: 

"[Allthough the conversations might have been 

privileged during the lives of the parties, 

after the death of both of them the privilege 

is removed. The rule is stated in Corpus 

Juris in this way: 
"'It is generally considered that the rule 

of privilege does not apply in litigation, 

after the client's death, between parties, 

all of whom claim under the client; and, so, 

where the controversy is to determine who 

shall take by succession the property of a 

deceased person and both parties claim under 

him, neither can set up a claim of privilege 

against the other as regards the communications of deceased with his attorney.' 70 

C.J. 438, Witnesses, 8587." 291 P.2d at 731. 

In Tanner v. Farmer (1966), 243 Or. 448, 414 P.2d 340, the 

Oregon Supreme Court allowed deceased wife's attorney to 

testify that the wife had intended to divorce her husband 

and cut him from her will. The court said: 

"The Uniform Rules of Evidence propose that 

the privilege shall not extend 'to a communication relevant to an issue between parties 

all of whom claim through the client, regardless of whether the respective claims are by 

testate or intestate succession or by inter 

vivos transaction.' Rule 26(2) (b) Uniform 

Rules of Evidence [now Rule 502 (d) (2) Uniform 

Rules of Evidencejnot included in Montana 

Rules of Evidence]. This is in keeping with 

the Bergsvik decision and with the rule followed by the other courts. See McCormick on 

Evidence (1954) 598, pages 199,200." 414 P.2d 

at 342. 

While the cases relied upon by plaintiffs are not 

identical factually to the present case, we find plaintiffs' 

argument persuasive. In the present case, all the parties 

are next of kin to Charles Herrig and claim an interest in 

his life insurance policy. The provision in the divorce 

decree requiring that the insurance policy be maintained for 

the benefit of plaintiffs conflicts with the amended provision 

in the policy itself naming defendant as sole beneficiary. In 

order to determine whether the insurance provision in the 

divorce decree was something desired or agreed to by Charles 

Herrig or was something which was imposed upon him by the 

court, it is necessary to consider Sternhagen's deposition, 

which indicates Charles Herrig's intent. 

This Court has not considered whether section 26-1-803, 
MCA, extends the attorney-client privilege beyond the client's 

death; we now hold that, under the facts of this case it 

does not; Sternhagen's deposition was admissible. We hereby 

adopt the above exception to the general attorney-client 

privilege rule; where both parties to a lawsuit claim under 

a deceased client, neither can assert the attorney-client 

privilege against the other. The District Court did not err 

in considering Sternhagen's testimony and those papers which 

were part of the Herrig divorce file. 

11. 

Defendant argues that the District Court in 1972 was 

without power to require Charles Herrig to maintain his life 

insurance for the benefit of his children, particularly, 

where there was no provision for the termination of the 

requirement as to each child when she reached her majority. 

Defendant relies upon the following rules for support: 

(1) A divorced parent has no greater obligation to his 

children than a non-divorced parent. Clavin v. Clavin 

(1977), 238 Ga. 421, 233 S.E.2d 151. 

(2) A parent's legal obligation to support his children 

ends with their emancipation--in Montana, at 18 years of 

age. Chrestenson v. Chrestenson (1979), 180 Mont. 96, 589 

P.2d 148. 

Defendant concedes that a mutual separation agreement 

or property settlement agreement which "clearly and unmistakably" 

provided for insurance maintenance would be enforceable. 

But defendant points out that "no property settlement agreement 

was ever signed or filed with the [~istrict] court," and 

argues that, even if it had been, such an agreement should 

be enforceable as to each child only until that child reached 

majority. Finlay-Wheeler v. Rofinot (1976), 276 Or. 865, 

556 P.2d 952. 
Defendant argues, too, that, apart from the question of 

the admissibility of the deposition of Charles Herrig's 

attorney, the attorney's speculations about Charles Herrig's 

intent a decade earlier are not very conclusive evidence. 

Defendant has raised a number of questions which are 

not applicable here. In Chrestensen, supra, this Court did 

not hold that all legal obligations cease when the child 

reaches majority, but that the legal obligation to provide 

child support ceases at that time. Justice Sheehy, in a 

special concurrence, recognized "that the parties could 

agree to an obligation to support a child beyond the age of 

eighteen years." This is consistent with case law in other 

states, and is perfectly logical. Similarly, where there 

is no settlement agreement, a parent may, through his attorney, 

suggest to the court certain provisions for the benefit of 

the children which are agreeable to that parent. When the 

court accepts the parent's suggestions, and incorporates 

them into the decree, they are enforceable. In Clavin v. 

Clavin, supra, the court stated: 

"There is, of course, no question that a father 

may agree to provide life insurance for the 

benefit of his child. Such an agreement, if 

valid and incorporated in the decree, will be 

enforced. (Citations omitted.)" 233 S.E.2d 

at 152. 

Here, the District Court judge acted upon the husband's 

offer to maintain his life insurance for his childrens' 

benefit. The return on the order to show cause dated November 

15, 1971, shows that the husband, whose take-home pay was 

approximately $425.00 per month declared himself incapable 

of paying $300.00 per month child support. He offered 

instead to pay $50.00 per child per month ($150.00), and 

further stated: 
"The defendant is also agreeable to keeping 

the group life insurance policy of the Montana Power Company, defendant's employer, 

in the amount of $22,000, but alleges that 

the beneficiary provision on such policy 

should be changed to retain the children of 

the parties but to exclude the plaintiff." 

The attorney's records and testimony support plaintiffs' 

argument that the District Court did no more than incorporate 

into the divorce decree a provision for the protection of 

the children, suggested to the court by the husband. The 

District Court referred to those sections of the Herrig 

divorce file which indicated Charles Herrig's intent to keep 

up his life insurance for his children: 

"Evidence of the existence of the oral property 

settlement agreement, is found throughout the 

court record of the Herrig divorce case, and 

in the file kept on that case by William Sternhagen. Documents in Sternhagen's file have 

become a part of the record in the instant 

action. 

"In notes taken over the phone by William Sternhagen in a conversation with Charles Herrig on 

about November 24, 1970, the following appears: 

"'5. MPC group life in. $22,000-beneficiary 

will be children' 

"The next document in Sternhagen's file is more 

notes. At the top of the single page, he has 

written, 'Maybe write to Kottas and make this 

offer as the terms for a separation agreement.' 

Written on that page is this notation: 

"'Life Ins--$22,500 ben is wife-to be changed 

to children---will keep up payments---right 

reserved to change beneficiaries after youngest 

child (12) becomes of legal age.' 

"Attached to that page of notes is a letter to 

Leo Kottas dated December 2, 1971, which proposes terms for a separation agreement. Item 

number 3 reads: 

"'3. Mr. Herrig will keep up his life insurance 

changing the beneficiaries to his children 

reserving the right to change beneficiaries 

if he so desires, but not until his youngest 

child becomes of legal age.' 

"A return on order to show cause was filed 

December 15, 1971 by Mr. Sternhagen. The life 

insurance provision therein states: 

"'4. The defendant is also agreeable to keeping the group life insurance policy of the Montana Power Company defendant's employer, in the 
amount of $22,000.00, but alleges that the 

beneficiary provision on such policy should 

be changed to retain the children of the 

parties but to exclude the plaintiff.' [see 

above] 

"In a post-trial memorandum, filed February 

14, 1972, and prepared by defendant's attorney, 

Mr. Sternhagen, he summarized Mr. Herrig's 

testimony: 

11 1 Mr. Herrig, in addition to the above, agreed 

that he would continue to pay about $14 per 

monthfor $22,500 insurance on his life and 

that the children would remain beneficiaries 

of this.' (emphasis added) 

"In that memorandum was a section entitled 

'Suggestions and requests for property settlement.' Items 11. . .read[s]: 

"'11. Mr. Herrig continue the life insurance 

for his children in the total coverage of 

$22,500 which is at a cost to him of $14 per 

month. ' " 

These records were compiled during the 1972 divorce action. 

Defendant's objection to Sternhagen's evidence, as being 

unreliable due to the passage of years, is without merit. 

This Court must determine whether summary judgment was 

appropriate. The general rules governing summary judgment 

were stated in Krone v. McCann (1982), Mont. , 638 

"Under Rule 56(c), M.R.Civ.P., a summary judgment is proper only if the record discloses no 

genuine issue of material fact and that the 

movant is entitled to judgment as a matter of 

law. (Cites omitted.) The party moving for 

summary judgment has the burden of showing the 

complete absence of any genuine issue as to 

all facts which are deemed material in light 

of those substantive principles which entitle 

him to a judgment as a matter of law. (Cites 

omitted.) Once the movant has established 

that no material issues of fact exist, the 

burden shifts to the opposing party to raise 

an issue of fact. As we stated in [Rumph v. 

Dale Edwards, Inc. (19791, Mont. I 

600 P.2d 163, 167, 36 St.Rep. 1022, 10261: 

"'While the initial burden of proof must attach 

to the moving party, that burden shifts where 

the record discloses no genuine issue of material fact. Under these circumstances, the 

party opposing the motion must come forward 

with substantial evidence raising the issue 
[Citations omitted.] Once the burden has shifted, the party opposing the motion is held to a 

standard of proof which is as substantial as 

that initially imposed upon the moving party. 

[Citation omitted. 1 ' " 

Respondents' brief in support of their motion for 

summary judgment is adequately supported by reference to 

the above rule and case law interpreting it. The brief sets 

forth copious facts supporting respondents' argument that 

Herrig's clear and continuing intent was to maintain his life 

insurance policy for the benefit of his children. It points 

out the offer in Herrig's return on order to show cause, 

November 15, 1971, which stated that Herrig was agreeable to 

keeping the policy but that the beneficiary provision should 

be changed to retain the children. 

Appellant's brief in opposition failed to raise any issue 

of disputed fact, or to argue that there was any genuine issue 

of material fact. 

We find nothing in the record of the divorce itself 

or of this action to indicate that any property settlement 

agreement, oral or otherwise, had been reached between the 

Herrigs at the time of their divorce. But the record leaves 

no doubt that Charles Herrig intended his children to be the 

beneficiaries of his life insurance, and that he offered that 

benefit to the court in return for the court's lowering the 

requested $300/mo. total child support to $50 per child per 

month, or $150/mo. 

The District Court never directly addressed the question of 

whether Herrig effectively contracted with -- the court to waive 

his right to change beneficiaries. But, the abundant evidence 

from the Sternhagen file, which is undisputed except for the 

question of its admissibility and the question of the duration of 

the waiver, adequately supports the District Court's conclusion 

that there is no genuine factual dispute over Charles Herrig's 
intent to maintain the policy for his children. It would 

be unreasonable for this Court to render invalid or unenforceable, the provisions of a divorce decree offered by one party 

and accepted by the trial court, although unsought by the other 

party, when those provisions involve benefits to the children. 

A parent who offers to put his children through college, for 

example, rather than pay the entire amount of support sought 

by the other parent should be held to that agreement once 

it is incorporated into the decree. Or a parent who offers 

to pay medical/dental bills until his children are 21, rather than 

pay full support asked until their majority, should not be 

able to escape that bargain, once his offer has been accepted 

by the court. 

Here, Herrig offered to the court the life insurance 

policy as trade for lower support. The court accepted the 

offer. The record is clear and reflects no factual dispute 

regarding that offer. We find there is no genuine issue of 

material fact as to Herrig's intent to maintain his life 

insurance for his childrens' benefit. 

The second factual question was whether Herrig intended to 

retain the right to change beneficiaries 

(a) From the time of the divorce. 

(b) When his youngest reached majority. 

(c) As to each child when she reached her majority. 

(d) Never. 

There is absolutely no evidence to support (a) or (c) . 

The insurance provision in the decree is meaningless if (a) 

is found applicable; and the only argument in support of (c) 

is that what appellant presents as the minority view (that 

a parent can be required to maintain his life insurance for 

his childrens' benefit), generally holds that the requirement 
terminates upon the child's reaching majority. The minority 

view is not applicable here, where the decree is obviously not 

an imposition of the court's will upon Herrig, but rather an 

incorporation of Herrig's offer into the decree. A parent's 

legal obligation to support his children ceases with their 

majority, but the parent can agree to extend their support or 

benefits beyond that time. See Chrestensen concurrence, above. 

That obviously is what happened here. 

If (b) and (d) are the only two legitimate offers, as 

indicated by the Sternhagen file, then the factual dispute is 

not material, since in either case, the $22,500 policy for all 

three children would be in effect at least until the youngest 

reached her majority, which she had not, at the time of Herrig's 

death. 

Thus, although the District Court wrongly relied upon 

an apparently non-existent settlement agreement between husband 

and wife, the result was correct. There is no genuine issue of fact 

as to whether Herrig intended to maintain the policy for his 

children, and no issue of material fact as to when his right 

to change beneficiaries came into effect. This Court has often 

held that if the result reached by the trial court is correct, 

it will be upheld regardless of the reasons given for the 

conclusion. Steadman v. Halland (1982), Mont . , 641 

P.2d 448, 452, 39 St.Rep. 343, 347; Johnstone v. Sanborn (1960), 

138 Mont. 467, 471, 358 P.2d 399, 401. 

Here, Charles Herrig, through his attorney, clearly indicated 

to the trial court his willingness to keep up his life insurance 

policy in the amount of $22,500 for his children, at least until 

his youngest child reached her majority. The court incorporated 

that offer into the divorce decree; the provision is enforceable 

and may not be defeated by Herrig's subsequently naming his 

second wife sole beneficiary. We refer to Matter of Estate of 
Lemer (S.D. 1981), 306 N.W.2d 244, a case factually similar 

to the case at bar, wherein the South Dakota Supreme Court 

stated: 

"[Tlhough a beneficiary named in a policy which 

contains a provision reserving a right in the 

insured to change the beneficiary is without 

a so-called vested right in the policy, he may 

nevertheless become invested with equitable 

rights therein through a separate contract with 

the insured, and. . .such rights may prevail 

over the legal and equitable rights of one who 

has been subsequently substituted as the named 

beneficiary. (Cites omitted.) That such an 

equitable right in the policy may arise from 

a settlement of property rights in connection 

with a divorce proceeding is not questioned. 

(Cites omitted.)" 306 N.W.2d at 245-246. 

Here, although plaintiffs were never actually named beneficiaries, 

and their interest was created by agreement between the husband 

and the court, the incorporation of the husband's offer into the 

divorce decree created equitable rights in the policy, in the 

children. Those rights prevail over the defendant's rights to 

the extent of the value of the insurance policy referred to in 

the divorce decree. 

The District Court correctly granted judgment against 

defendant in the amount of $22,500. 

Af f irmed . 

We Concur: