No. 89-219 

IN THE SIJPREME COURT OF THE STATE OF MONTANA 

ROSE CHRISTENSEN, Conservator of the 

Estate of CLARENCE B. NEIDIGH, a protected 

person, 

Plaintiff and Appellant, 

-vsDOROTHY BRITTON, JOYCE LANGE, and 

DEBBIE McSHANE, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Joel G. Roth, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Michael W. Cotter, Cotter & Cotter, Great Falls, 

Montana 

For Respondent: 

Dirk Larsen; Larsen & Neill, Great Falls, Montana 

- 

Submitted on Briefs: Sept. 15, 1989 

Decided: December 28, 1989 

Filed. : 
Justice R. C. Mcnonough delivered the Opinion of the Court. 

This is an appeal from an action to recover real and 

personal property that Clarence Neidigh qave to defendants 

Dorothy Britton, Joyce Lange and Debbie McShane (sometimes 

collectively referred to as "Defendants"). Rose Christensen, 

later appointed conservator of the estate of Cla-rence 

Neidigh, brought this action for damages and to set aside 

certain transfers on the grounds that Clarence Neidigh was 

incompetent and the transactions were a result of undue 

influence . The District Court of the Eighth Judicial 

District, sitting without a jury, found that the transactions 

between Clarence Neidigh, who was found to be competent, and 

the Defendants, were fair and regular. We reverse, remand 

and order the trial court to conduct a new trial to determine 

damages. 

The issue in this case is: 

Whether the District Court erred in concludinq that the 

various transactions between Clarence Neidigh and the 

Defendants were valid. 

Clarence Neidigh (Lou) was born on January 15, 1900. In 

1929, he married Marie and had two children, Rose, and 

Dwight. Lou and Marie were married for 57 years. During 

this period of time, they enjoyed a very close and lovinq 

relationship. According to testimony, Lou and his wife were 

inseparable. They went everywhere together and he relied on 

her exclusively, for all of his needs. Marie died on 

September 14, 1986. Lou was extremely distraught over the 

loss of his wife. His neighbors described him as a "lost 

soul" during the months following the death. 

The Defendants, Dorothy Rritton, Debbie McShane and 

Joyce Lange, all knew Lou and Marie very well. Britton and 

McShane, who are daughters of Lange, grew up within a block 
of Lou. Consequently, they enjoyed a very close relationship 

with him for about 25 years before his wife died. 

After Marie died, Aritton began spending an inordinate 

amount of time with Lou. She helped him with his day to day 

activities, such as driving him to the store and fixing his 

meals. In October, approximately one month after Marie's 

death, Britton contacted her family attorney. She asked him 

to prepare a power of attorney, giving her full control over 

all of Lou's assets. She maintained that this was necessary, 

because Lou was unable to handle his business affairs due to 

his depression over his wife's death and because his eyesight 

was very poor. Accordinqly, on October 20, 1986, Rritton 

took Lou to her attorney's office and he signed a durable 

power of attorney giving her full and complete control over 

his property. 

On February 4, 1987, Britton took Lou to see her 

attorney for a second time. The purpose of this visit was 

for Lou to make a new will. According to Britton's 

testimony, Lou wanted to make a new will in order to leave 

the bulk of his estate to her, her mother and her sister. It 

was also decided that Lou would deed his house and all of its 

contents to Britton through an immediate transfer. Lou 

executed a warranty deed and conveyed his house and all of 

"the furniture, furnishings and equipment located therein" to 

Dorothy Britton. The house was fully paid for and there was 

no consideration paid to Lou for the home or the furnishings. 

A number of monetary transactions then took place 

between Lou and the Defendants, most of which were in 1987. 

They included a $5,000.00 loan to Joyce Lanqe, a $4,000.00 

loan to Rudette Mattingly (Dorothy Britton's sister), a 

$2,500.00 loan to Debbie McShane and a gift of a diamond 

ring, valued at $1,500, to Joyce Lanqe. 
Most of these loans have never been repaid. Lange 

maintains, however, that she has repaid her $5,000.00 loan. 

She asserts that the loan was repaid by returning to Lou a 

gun collection which he had previously given to her. Each of 

these loans and their purported repayments were cash 

transactions. No promissory notes were every drafted, nor 

did the Defendants keep records of any repayment. The loans 

were usually accomplished by Lou making out a check to 

"cash." The Defendants would then drive him to the hank 

where he would cash the check and give them the money. 

In October of 1987, Lou gave Britton his 1982 Ford LTD, 

which was valued at $3,800.00. Britton used the car for 13 

days. She then sold the car back to Lou for $6,000.00. A 

receipt evidencing this sale was executed by both Lou and 

Britton. 

During this period of time Lou met a young woman named 

Kim Stevens. Kim was 24 years old when she was introduced to 

Lou. Apparently Kim was a close friend of Defendant, Debbie 

McShane . Kim had three children and was, at this time, 

involved with a man by the name of Leland LaPier, who is 

currently incarcerated at the Montana State Prison. 

A short time after they met, Lou and Kim were married on 

October 23, 1987. She moved herself and her three children 

into the home which Lou had previously deeded to Dorothy 

Britton. Debbie McShane also moved into the house with Rim 

and Lou. 

Lou, no longer having any furniture and appliances in 

the house, bought furniture and appliances. He obtained many 

of the items that he needed by repurchasing some that he had 

given to Dorothy Britton. Among other things, he repurchased 

from her, his bed for $600.00 and his washer and dryer for 

$700.00. 
In December of 1987, animosity began to develop between 

Lou and the Defendants. Britton's testimony is that the 

animosity arose after Iloul s marriage to Kim. Eventually 

Britton asked Lou to leave the house. As a result Lou was 

forced to leave the home that he had occupied for over thirty 

years. He was not allowed to take any of his personal 

possessions because, as stated earlier, these had been 

conveyed to Britton. Following Lou's departure Britton began 

renting the house to her sister, Debbie McShane, for $342.00 

a month. 

Lou's son, Dwight, died in January of 1988. At the 

funeral Lou's daughter, Rose, discovered that he was out of 

money and was no longer in possession of his home or his 

belongings. Consequently, she moved him into her home in 

Helena. In February, after she was appointed conservator of 

her father's estate, she cashed out his bank account. He had 

only $800.00 left. 

When Lou's wife died, his checking account contained 

between $45,000 and $50,000. He also had an income of 

approximately $1,500.00 a month which was obtained through 

retirement benefits and stock dividends. The total depletion 

of his cash assets between September of 1986 and February of 

1988 was in an amount between $69,000 and $74,000. 

Additionally, he lost his home and virtually all of his 

personal possessions. 

Lou's marriage to Kim was annulled in June of 1988. In 

the stipulation to annul the marriage, Kim stated her belief 

that "other parties set up and fraudulently induced the 

marriage relationship." Following the annulment Kim returned 

all of Lou's property that was in her possession. 

Rose Christensen, as Conservator of the Estate of Lou 

Neidigh, brouqht this action to recover the property given to 

Dorothy Britton, Joyce Lanqe and Debbie McShane. After a 
bench trial, the District Court held that the various gifts 

and transactions between Lou and the Defendants were valid. 

The court further concluded that the Defendants did not 

exercise undue influence over Lou and Lou was competent at 

the time of the transactions. Judgment was therefore entered 

in their favor. From this judgment, the plaintiff appeals. 

The plaintiff advances two theories, either of which if 

proven would operate to invalidate the transfers of property 

by Lou Neidigh to the Defendants. She maintains that either 

Lou lacked the capacity necessary to make a valid gift or, in 

the alternative, that the gifts were obtained through the use 

of undue influence. The evidence does not support her claim 

that Lou lacked the capacity to make a valid gift. In fact 

Lou's doctor testified to his belief that Lou did have the 

mental capacity to understand and manage his financial 

affairs at the time the transfers were made. LVe, therefore, 

will examine the appellant's claim that the gifts were 

obtained through the use of undue influence. 

Proof of undue influence does not depend upon a showing 

of mental incapacity on the part of the donor. In re Estate 

of Aageson (1985), 217 Mont. 78, 702 P.2d 338. Undue 

influence is never presumed and must be proven like any other 

fact. Adams v. Allen (1984), 209 Mont. 149, 679 P.2d 1232. 

Therefore, we must review the evidence to determine whether 

the plaintiff has carried her burden of proving that the 

gifts were a product of the Defendants' use of undue 

influence. 

In Montana, the question of whether undue influence was 

exercised on a donor making a gift is determined by the same 

criteria used in deciding whether undue influence was 

exercised on a testator making a will. Cameron v. Cameron 

(1978), 179 Mont. 219, 587 P.2d 939. These criteria, as set 

out in Montana case law, are: 
(1) Confidential relationship of the person 

attempting to influence the testator; 

(2) The physical condition of the testator as it 

affects his ability to withstand influence; 

(3) The mental condition of the testator as it 

affects his ability to withstand the 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 donor taking into 

consideration the time, the place, and all- the 

surrounding circumstances. 

Cameron, 587 P.2d at 945, see also 5 28-2-407, MCA. 

To prove an assertion of undue influence one must 

satisfy each of these criteria. We therefore apply the 

evidence to each of the five points. 

There was a close confidential relationship between Lou 

Neidigh and Dorothy Britton. Before the death of Lou's wife, 

Britton had known Lou for approximately 25 years. According 

to her testimony, she thought of Lou as a "grandfather." 

Within five weeks after Lou's wife died, however, this 

relationship began to change. Britton then took on the added 

responsibility of controlling and managing Lou's financial 

affairs by obtaining power of attorney over his entire 

estate. This blanket power of attorney, which was obtained 

through Britton's lawyer, imposed upon her a fiduciary duty 

to act in the utmost good faith when dealing with Lou's 

financial affairs. This fiduciary duty, together with her 

long personal relationship with him, demonstrates that 

Britton had a confidential relationship with Lou Neidigh. 

Due to Lou's advanced years, his physical condition was 

deteriorating at the time he engaged in the transactions on 

review. Testimony revealed that his sight had deteriorated 
to the point of near blindness. In order to read, he needed 

a magnifying glass. This poor eyesight required him to 

become dependent upon others to write his checks and review 

his bank records. This dependency, in turn, made him 

susceptible to overreaching influence asserted by the 

Defendants. 

Lou was also in a precarious mental state during the 

time the gifts and the loans were made to the Defendants. As 

we have previously mentioned, Marie Neidigh, Lou's wife, died 

on September 14, 1986. Lou took the death very hard. 

Witnesses at trial described him as a "lost soul" and 

testified that he would often cry in front of them. As can 

be expected, after the loss of a longtime spouse, Lou was 

sad, dependent, confused and lonely. 

His dispositions were unnatural and indicate that he was 

in a weakened emotional state and was therefore easily 

susceptible to undue influence. Very shortly after Marie's 

death, Lou gave Joyce Lange, Marie's wedding rings. 

Following this gift a number of other unnatural transactions 

occurred between Lou and the Defendants. He gave his house 

and all of its contents to Dorothy Rritton. In making this 

transaction, he did not even reserve to himself a life estate 

which would insure that he had a place to live. 

Additionally, a number of loans were made to the Defendants. 

These loans and their repayment were all purported to be in 

cash. No records were kept of their repayment and no 

promissory notes were ever signed by the Defendants. The sum 

of these loans approximated at least $12,000.00. 

In addition to conveyinq all of the property contained 

in his house to Britton, Lou also gave her his only car. 

Thirteen days after this gift was made, Britton sold the car 

back to Lou for $6,000.00, which was $2,200.00 more than its 

fair market value. When Lou asked that other items of his 
personal property be returned, Rritton sold them to him. For 

instance, she sold him his washer and dryer for $700.00, his 

snowblower for $100.00, and his bedroom furniture for 

$600.00. 

In December of 1987, after her relationship with Lou 

began to deteriorate, Dorothy Britton forced Lou to leave the 

house that he owned for over 30 years. When he left, he was 

not allowed to take any of his personal effects. Shortly 

after his departure, Rritton rented the house to her sister 

for $342.00 a month. 

The only conclusion that can he drawn from these 

transactions is that they were unnatural and were the product 

of an unbalanced mind or one that was easily susceptible to 

influence. We point out that in addition to losing his home 

and most of his personal property, Lou's monetary loss 

approximated somewhere between $69,000-$74,000. The 

Defendants, therefore, gained over $100,000 through their 

dealings with Lou. 

As a final consideration in our examination of undue 

influence, we must look at the demands made by the Defendants 

as they may have affected Lou. Due to his weakened physical 

and emotional state, Lou was highly susceptible to influence 

exerted by the Defendants. Moreover, the manner in which the 

various transactions took place is highly suspect. 

Dorothy Rritton took Lou to her attorney on two 

occasions. On the first occasion she obtained blanket power 

of attorney over his entire estate. On the second occasion, 

she obtained a warranty deed to his house and all of its 

contents. The appointments for both of these meetings were 

made by Dorothy Britton. She accompanied Lou to these 

meetings and sat in with Lou while he spoke with the 

attorney. This afforded her a unique opportunity to 

influence the disposition of Lou's propertv. 
We also note that the power of attorney, conferred upon 

Britton the duty to act in the utmost good faith in any 

financial dealings with Lou. This fiduciary duty was 

breached in a number of ways. In support of this conclusion 

we make reference to the facts that Britton allowed Lou to 

make improvident loans to her family members and that after 

obtaining title to his property she embarked on a course of 

selling it hack to him. 

The five criteria necessary to support the conclusion of 

undue influence have been met and the burden now shifts to 

the Defendants to prove that the transactions were fair and 

voluntary. 29 Arn.Jur 2d, Evidence S 128. Defendants advance 

a number of arguments in support of their position that the 

transactions were valid. We find little merit to any of 

these arguments. 

When Britton brought Lou to her attorney to make a new 

will, she obtained a statement from his doctor which stated 

that Lou was competent. We have no argument with this 

assertion. However, we point out that the fact that Lou was 

competent has no hearing on his susceptibility to undue 

influence. One does not need to be incompetent in order to 

be subject to overreaching influence. In re Estate of 

Aageson (1985), 217 Mont. 78, 702 P.2d 338. We note that 

this same doctor testified that the dispositions made by Lou 

were not natural. 

The Defendants also presented testimony which indicated 

that Lou's children knew that he was going to give his house 

to Dorothy Sritton. The testimony on this issue is 

conflicting, but at least one witness for the defense 

testified that Lou told his children of his desire to make 

this gift at a Christmas party in 1986. Assuming this 

testimony is true, we do not find that it has any relevance 

to the issue of undue influence. Even though Lou's children 
may have known of Lou's intent, there is no evidence that 

they knew it was done and that he may later be forced to 

leave his house. Nor is there any evidence that they knew of 

the extensive drain on his financial resources. 

Finally, the Defendants presented evidence of their 

close relationship with Lou Neidigh. Dorothy Rritton 

testified that Lou was "like a grandfather" to her. Another 

witness testified that Lou stated that Rritton was more of a 

daughter to him than his own. This close relationship, it is 

maintained, indicates that the gifts were made as a result of 

Lou's desire to show his love for the Defendants and were 

not, therefore, a product of undue influence. Britton ' s 

actions, however, speak louder than any of this testimony. 

As a matter of common human experience, we find it hard to 

comprehend how one could at the same time think of another 

person as a "grandfather" and then evict him from his own 

house. 

Britton maintains that Lou's removal from the house and 

the subsequent sales of property to him resulted from her 

desire to protect the assets after his marriage to Kim 

Stevens. In view of the overall actions of Britton, we 

reject this argument. Lou married Kim on October 23, 1987. 

By this time Britton had obtained ownership of his house, his 

car and other possessions. His monetary worth had decreased 

by over $20,000.00. We also point out that upon the filing 

of this lawsuit, only one Defendant returned Lou's property. 

That defendant was Kim Stevens. 

The facts of this case paint a vivid picture of unfair 

advantage and undue influence over an elderly and depressed 

man. We are, therefore, obligated to reverse. We do not 

take lightly the fact that we are reversing the findings of a 

court sitting without a jury. However, as we have stated on 

many occasions, the findings of a court sittinq without a 
jury must be based upon substantial evidence. Cameron v. 

Cameron (1978), 179 Mont. 219, 587 P.2d 939. 

Substantial evidence is defined as that evidence that a 

reasonable mind might accept as adequate to support a 

conclusion. Blacks Law Dictionary 1281 (5th ed. 1979). 

Although it may be based upon weak and conflicting evidence, 

in order to rise to the level of substa-ntial evidence it must 

be greater than trifling or frivolous. If a lower court's 

findings are not based upon substantial evidence and there is 

a clear preponderance of evidence against them, we must 

reverse. Taylor v. Pretranek (1977), 173 Mont. 433, 568 P.2d 

120. 

The evidence in this case, taken as a whole, of undue 

influence is overwhelming. Three women, within a time period 

of fifteen months, stripped Lou Neidigh of his house, his 

car, virtually all of his personal belongings, and over 

$40,000 in savings. The Defendants' evidence, in essence, is 

that these were gifts, freely given, as a result of Mr. 

Neidigh's love and affection. The extent of the gifts and 

the Defendants ' course of conduct, however, belies these 

contentions and does not, therefore, rise to the level of 

substantial evidence. There is a clear preponderance of 

evidence against the findings of the trial court. As a 

result, we must reverse, remand and order further 

consideration consistent with this opinion. 

Justice 

We concur: 

dh Justice 
Justices 
Justice Fred J. Weber dissents. 

In reversing the District Court, this Court has become 

the finder of fact, which is appropriate only in limited 

circumstances which do not apply here. Rule 52(a), 

M.R.Civ.P., states that a district court's findings of fact 

shall not be set aside unless "clearly erroneous," and that 

"due regard shall be given to the opportunity of the trial 

court to judge the credibility of the witnesses." In Parker 

v. Elder (Mont. 1988), 758 P.2d 292, 293, 45 St.Rep. 1305, 

1307, this Court pointed out that if substantial credible 

evidence supports the findings, they are not clearly 

erroneous. 

The majority concluded there were inequities in the 

transfers by an elderly man and have set aside the District 

Court's findings. The majority analyzes the evidence and 

sets forth its own findings of fact. The majority opinion 

does not analyze the findings of fact and the supporting 

evidence as determined by the District Court. 

The District Court pointed out that the plaintiff called 

five witnesses and the defendants called six witnesses. With 

regard to the transfer of the house, the District Court 

found : 

8. On February 4, 1987, Dorothy took Clarence 

to Robert Clary's law office where Clarence told 

Robert Clary that wanted to prepare his Last Will 

and Testament. He told Robert F. Clary, Jr. that 

he wanted to leave his house, his automobile and 

the contents of the house to Dorothy Britton. 

After some discussion, Clarence B. Neidigh decided 

that because his own children, Dwight Neidigh and 

Rose Christensen, might contest such a provision in 

his will, he instructed Robert F. Clary, Jr. to 

prepare a deed of the house of the house and its 

contents to Dorothy Rritton as he wished to make to 
her an immediate gift of this property to avoid any 

future will contests . . . 

With further regard to the transfer of the house, the District Court found: 

9. Following the transfer of the house to 

Dorothy, Clarence continued to live in the house 

until November or December 1987 when he moved to 

another house he had purchased. In connection with 

the deed of the house to Dorothy, there was an oral 

understanding between Clarence and Dorothy that 

Clarence could stay in the house as long as he 

wanted to so long as he paid the taxes and maintenance on the house . . . 

With regard to the issue of duress and undue influence, the 

final finding of fact by the District Court was: 

19. Although Clarence now wants his property 

to him the court finds -- that the evidence presented 

-- does not establish that Clarence's decisions with 

respect to his financial affairs and property - -. 

interests were made under duress - or - undue influence. ~hrevidence wre~onderates in favor of A. A. 

finding that Clarence made his own decisions and 

knew what he was doing at those times. His property disposition decisions may have been unwise. 

Clarence himself -- did not testify --- that he was 

coerced or under undue influence from anyone when 

he made the gifts of his property and when he 

married Kim Stevens. (Emphasis supplied.) 

The District Court then made the following conclusions 

of law which have elements of factual findings in them: 

2. Clarence B. Neidigh made a valid gift by 

deed of his house together with the furniture, 

furnishings and equipment located therein to Dorothy Britton on February 10, 1987. . . 

3. The various transactions between Clarence 

B. Neidigh and Dorothy Britton whereby she sold to 

him a 1982 Ford, household furnishings and guns 

were fair and regular. 
5. The loans made by Clarence R. Neidigh to 

Dorothy Britton and Joyce Langie [sic] have been 

repaid in full and there remains no balance due to 

Clarence B. Neidigh on thse [sic] loans. 

6. There is no evidence that the gift made 

by deed from ~larence B. Neidiqh to Dorothy Britton 

was obtained through duress or undue influence. 

(Emphasis supplied.) 

While the record does contain substantial evidence in 

support of the findings set forth in the majority opinion, 

the record also contains substantial evidence to support the 

findings of the District Court. It is interesting to note 

that the district judge specifically found that a reason for 

the transfer of the real property was to prevent will contests and an attempt to obtain the property by his children. 

The record demonstrates that it is Rose Christensen, one of 

those two children who has acted as the plaintiff. 

I conclude there is substantial credible evidence to 

support the findings of the District Court, and this should 

be the end of the inquiry. I would affirm the District 

Court. 

Justice William E. Hunt, Sr., joins in the foregoing dissent 

of Justice Fred J. Weber.