No, 12891 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

LEONA M, CONITZ, by her Brother and 

Next Friend, William F. Hafferman, 

Plaintiff and Appellant, 

-vs - 

JOANE M, WALKER, 

Defendant and Respondent. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable Robert H. Wilson, Judge presiding, 

Counsel of Record: 

For Appellant : 

Hutton, Sheehy and Cromley, Billings, Montana 

John C. Sheehy argued, Billings, Montana 

For Respondent : 

Moses, Kampfe, Tolliver and Wright, Billings, 

Montana 

D. Frank Kampfc argued, Billings, Montana 

Submitted: June 16, 1975 

Decided : 0 CT 3 1 19E 

Filed : fir- Q j .,L" \ d 4 
Mr. Chief Justice James T. Harrison delivered the Opinion of 

the Court. 

This is an appeal from a judgment determining the distribution 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 Association 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 continually 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 advertisements 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 grocery business in Billings, known as "Gorham Park IGA"; this business 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 capitalized 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 corporation 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 languages 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 deposit 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 certificates 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 defendant "subject to my wife's dower interest." 

On August 7, 1972, Edward signed and delivered to defendant 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 remained 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 accomplished 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 def endant. 

There are many issues and arguments presented by both 

sides of this dispute. The arguments themselves are no less complicated 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 contract 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 Shopping 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 concur: 

Justices