No. 12238 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1972 

JOHN F . PATTERSON, JR. , SPECIAL 

ADMINISTRATOR OF THE ESTATE OF 

CLARA M. MODLIN, Deceased, 

Plaintiff and Respondent, 

ANNA K. HALTERMAN and THE FIRST 

NATIONAT, BANK OF MISSOULA, MONTANA, 

Defendants and Appellants. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable Jack L. Green, Judge presiding . 

Counsel of Record: 

For Appellants : 

Worden, Thane, Haines and Williams, Missoula, Hontana. 

Shelton C. Williams argued, Missoula, Montana.. 

For Respondent: 

Mulroney , Delaney and Dalby , Missoula , Montana. 

Dexter Delaney argued, Missoula, Montana. 

Boone, Karlberg and Haddon, Missoula, Montana. 

Submitted: November 30, 1972 

Decided: JAN 2 4 1973 

Filed : JAN 2 19T3 
%re Justice Gene R, Daly delivered the Opinion of the Court, 

This action was commenced in the district court of Missoula 

Counry by John F, Patterson, Jr., a practicing attorney, acting 

in his own behalf in his capacity as special administrator of the 

escate of Clara M. Modlin, deceased. The suit joined Anna K. 

Yal-terman and the First National Bank of Missoula as parties defendmt. However, the status of the bank was that of a stakeholder 

with no interest in the outcome and it did not participate in the 

trial. The trial court, sitting without a jury, entered findings 

l~f fact, conclusions of law and judgment for the plaintiff, which 

held that defendant Anna K. Halterman had no claim in a particular 

savings account and a certificate of deposit and directed defendant 

5irst National Bank of Missoula to pay over the savings account 

drld certificate of deposit to the estate. From the judgment, the 

court's denial of her motion to amend the findings of fact and 

cunclusions of law, and her motion for a new trial, Mrs. Halterman 

appeals. 

Undisputed facts appearing in the record are that Clara Modlin 

died on October 26, 1968, at the age of 88 years. On March 22, 1968, 

about seven months prior to hew death, Mrs. Halterman was named as 

ioint tenant with Clara Modlin in a savings account with a balance 

at that time of approximately $1,065.89 and in a certificate of 

deposit wit11 a balance at that time of approxi.mately $5,523.62, both 

2E which were and are held by the First National Bank of Missoula. 

About three years prior to her death, Clara Modlin executed 

d will which was admitted to probate and under which John F. Patterson, Jr, was appointed special administrator. Mrs. Halterman, 

niece of Clara Modlin, was not a beneficiary under the will. 

The will divided the entire estate between Mr. Glen Boyer, husband 

of a predeceased daughter, and two granddaughters, children of 

Glen Boyer. 

Plaintiff testified he had assisted Clara Modlin in two transactions concerning her property. On August 18, 1967, he drew a 
deed which created a joint tenancy of Clara Xodlin and Glen Boyer 

in her home, worth about $14,000, On April 7, 1968, he helped her 

complete a change of beneficiary form which designated Glen Boyer 

beneficiary of two life insurance policies owned by Clara Modlin, 

amounting to about $500. 

During the two year period preceding her death, Clara Modlin 

was in a state of declining health, She resided at her home as 

long as she was able then entered St. patrick's Hospital in 

Missoula. She later spent ten months to a year in the Hillside 

Yanor Nursing Home in Missoula, and was finally again admitted 

to St. Patrick's Hospital, where she died, 

Xrs, Halterman testified that the joint tenancy transaction 

of March 22, 1968 between she and Clara Modlin was not made pursuant 

to any preexisting debt or any express or implied contract for 

services rendered or goods delivered. 

The disputed facts, which are the crux of the lawsuit and 

appeal, concern (1) whether on March 22, 1968, Clara Modlin had 

the mental capacity to comprehend the nature of the transaction 

entering Mrs. alterm man's name on the two bank accounts as joint 

tenant; (2) whether Clara Modlin was capable of and formed an 

intention to make a gift to Mrs. Halterman, and (3) whether Mrs. 

Halterman had exerted undue influence on Clara Modlin. 

Two assignments of error involve questions of law: (a) 

whether the plaintiff's original complaint stated a claim entitling 

him to relief; and (b) whether the trial judge erred in excluding 

certain evidence offered by defendant. The remaining assignments 

of error relate to the three issues of fact, 

Considering first the law issues, we find that the cases cited 

by defendant in support of her motion to dismiss the original complaint predate the adoption of the rules of civil procedure in 

effect at the time the complaint was filed. The original complaint 

was no model of draftsmanship, but it does not invoke any serious 

due process question of lack of notice to defendants. The complaint 

was amended to conform to the proof at trial. 
The excluded evidence which defendant assigns as error concerns statements made by Clara Modlin to Mrs. Halterman and a 

Mrs. Stevenson, as to Clara Modlin's attitude toward her granddaughters and her intention regarding the disposition of her 

property. We find the trial judge acted within his discretion 

in excluding the offered testimony on various grounds. The proposed testimony of both witnesses falls squarely under the hearsay 

rule stated in section 93-401-2, R.C.M. 1947. The proposed testimony of Mrs. Halterman falls squarely under the dead man statute 

R.C.M. 

section 93-701-3,11947. The proposed testimony had questionable 

probative value, in light of the preceding evidence concerning 

Clara ~odlin's senility at the time the statements were made. 

Considering now the fact issues, we find the transaction which 

placed Mrs. t alter man's name on the two bank deposits to be valid 

and binding must meet the legal requirements of a gift inter vivos. 

Section 67-1706, R.C.M. 1947, states: 

1' A gift is a transfer of personal property made 

voluntarily, and without consideration. 11 

In In re Brown's Estate, 122 Mont. 451, 455, 206 P.2d 816, 

this Court stated: 

I I To constitute a gift of a chattel there must be 

(1) an intention on the part of the donor to make 

the gift; (2) delivery by the donor of the subject 

matter of the gift, and (3) acceptance of the gift 

by the donee. 11 

See also: State Board of Equalization v. Cole, 122 Mont. 9, 195 

P.2d 989; Fender v. Foust, 82 Mont. 73, 265 P. 15. 

It is requirement (1) from Brown which is determinative here, 

If by reason of old age inducing senility, illness inducing incompetence, undue influence, or a combination of these factors, 

Clara Modlin did not have a rational, independent intention to 

make a gift, i.e. the requisite donative intent, there was no 

gift. 

38 C.J.S. Gifts $5 13,34, explain the requirement in more 

detail: 
I1 5 13 in pertinent part states: It is essential to the 

validity of a gift that the donor shall have sufficient 

mental capacity to make a gift; a gift by a donor mentally 

incompetent is void. 11 

5 34 in pertinent part states: "Freedom of will on the 

part of the donor is essential to the validity of a gift, 

and where the donor has been induced to make a gift through 

fraud, duress or undue influence the gift may be set aside. 

In determining whether fraud or undue influence invalidating 

a gift exists, the courts will look to the special facts of 

each case. The court must consider the situation of the 

parties, the conditions that surround them, the attitude 

that they occupy toward each other, and the influences that 

control their actions. Thus, in determining whether undue 

influence entered into a transfer by gift, consideration 

will be given to the nature of the relationship between the 

donor and donee, the donor's susceptibility to undue influence, and the reasonableness of the transfer in light 

of the existing circumstances," (Emphasis added). 

Ar trial, plaintiff introduced four witnesses to testify concerning Clara ~odlin's state of health and mental capability during 

the general time span in which the joint tenancy transaction was 

carried out. The witnesses were: the plaintiff John F. Patterson, 

Jr., Clara ~odlin's attorney for many years; Dr. Gerald A. Diettert, 

M.D., Clara ~odlin's physician for the five years preceding her 

death; Geraldine A. OIConnor, a registered nurse at the Hillside 

)faanor Nursing Home; and J. Lynn Kellogg, a recently retired director 

of the First National Bank of Missoula, who for many years was 

acquainted with Clara Modlin in his professional capacity. 

Defendant introduced six witnesses for the same purpose: 

Sarah Stephenson, Kate J. Rasmussen, Wes Waldbillig, Ruth Bloom, 

and Theodora T. Reed, all long time personal friends of Clara 

Nodlin; and Mrs. Halterman, the defendant. A seventh witness, 

Wallace E. Small of the First National Banlc of Missoula, testified 

basically about bank policy and his observations of the joint 

tenancy transactions, 

The testimony of plaintiff's and defendant's witnesses concerning 

Clara ~odlin's physical and mental condition, her susceptibility to 

influence, and the question of whether she had been influenced, was 

in conflict. This, as we have stated, is the determinative issue 

of the case. 
The burden of proof for undue influence and the basic elements 

for the court's consideration in determining the fact of undue 

influence were stated by this Court in In re Estate of Mack G. Hall, 

Mont . -9 492 P.2d 1388, 1394, 29 St,Rep. 53,62, quoting from 

Estate of Maricich, 145 Mont. 146, 161, 400 P.2d 873: 

11 1 The law in the cases concerning undue influence 

places upon the contestant the burden of proof in 

showing substantial evidence of undue influence. In 

determining this issue on undue influence we may 

consider : 

'I' (1) Confidential relationship of the person 

attempting to influence the testator [donor]; 

"'(2) The physical condition of the testator 

[donor] as it affects his ability to withstand the influence ; 

"' (3) The mental condition of the testator [donor] 

as it affects his ability to withstand influence; 

"'(4) The unnaturalness of the disposition as it 

relates to showing an unbalanced mind or a mind easily 

susceptible to undue influence; and 

"' (5) The demands and importunities as they may 

affect the particular testator [donor ] taking into 

consideration the time, the place, and all the surrounding circumstances . I I' 

Although in Hall this expression of legal principles is directed 

toward an alleged undue influence on a testator in making a will, 

the same basic criteria apply to an alleged undue influence on a 

donor in making a gift, and they are particularly pertinent in the 

instant case, since the nature of the alleged gift was essentially 

testamentary in partially defeating the effect of the donor's will. 

Reviewing, then, the evidence as it relates to the various 

criteria enumerated in - Hall, the record discloses that Mrs. Halterman was a close friend and blood relative of Clara Modlin. In the 

opinion of her physician, Clara Modlin suffered from cerebral 

arteriosclerosis and was disoriented and forgetful. In the opinion 

of her nurse, she was more susceptible to suggestion than the 

average healthy person. The unnatural effect of this joint tenancy 

transaction was to partially defeat the provisions of her will 

toward closer relatives. Mrs. Halterman in a letter which was 

introduced at trial, and testified to at trial, suggested to Clara 

Modlin that "she put someone else's name on her savings account". 
/ 

It is readily apparent that on some material points the 

testimony of plaintiff's and defendant's witnesses was contradictory. It also appears there was an inherent contradiction in 

the plaintiff's own testimony regarding Clara Modlin's competency 

on the dates of the two joint tenancy transactions in which he 

participated. However, we find there was ample evidence, if 

believed, that would fully support the court's findings of fact. 

In Stromberg v. Seaton Ranch Company, Mont . , 502 P.2d 

41,48, 29 St.Rep. 848, this Court stated the pertinent rule of 

appeal and error which must be applied to the factual issues raised 

on appeal: 

"As is indicated in the summary of the facts, there 

was an unusual amount of evidence presented to the 

trial judge which resulted in numerous conflicts in 

the evidence. He was the one who had the only opportunity to see and hear all witnesses. Each party makes 

a strong argument that these facts and circumstances 

favor his position. Yet, as has been stated by this 

Court too many times to require citation, it is not 

this Court's province to review the record of the trial 

court to determine whether or not we agree with the 

conclusions reached, if supported by the evidence. We 

must indulge the presumption that the judgment of thr 

district court is correct and will not be disturbed unless 

- there is a clear preponderance of evidence against it 

when viewed in the light most favorable to the prevailing party ;k 9: 9; " (Emphasis added), 

Accordingly, in light of the facts and in the absence of a 

showing of a clear preponderance of evidence against the trial 

court's findings of fact and conclusions of law, the judgment 

of the district court is affirmed.