No. 81-201 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

CHARLES SOHA et al., 

Defendants, Cross-Complainants, 

Cross-Defendants, Respondents 

and Appellants, 

VS . 

CYNTHIA WEST, 

Defendant, Cross-Complainant, 

Cross-Defendant, Appellant and 

Respondent. 

Appeal from: District Court of the Eighth Judicial District, 

In and for the County of Cascade 

Honorable Joel G. Roth, Judge presiding. 

Counsel of Record: 

For Appellants: 

James, Gray and McCafferty, Great Falls, Montana 

John C. Harrison, Jr. argued, Great Falls, Montana 

For Respondents: 

Howard F. Strause argued, Great Falls, Montana 

Submitted: September 21, 1981 

Decided: 

DEC 2 i l9@ DEC 2 i 1981 

Filed: 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Both defendants appeal from a summary judgment entered 

in favor of defendant West in the Eighth Judicial District, 

Cascade County. 

This case began as an interpleader action wherein the 

plaintiff, a life insurance company, filed a complaint and 

admitted its obligation to pay $29,310.09 pursuant tc a life 

insurance policy issued by the plaintiff on the life of 

Frederick Charles Soha. The plaintiff was discharged from 

liability by depositing the funds with the clerk of the 

District Court. The defendants filed their respective answers 

and cross-complaints. Thereafter, defendant West filed a 

motion for summary judgment. The District Court granted the 

motion and entered summary judgment in favor of defendant 

West in the amount of $28,840.00, plus all interest which had 

accrued thereon. This amount ($28,840.00) was arrived at by 

subtracting $470.00, which was awarded to plaintiff for 

attorney's fees and costs, from the $29,310.00 awarded to 

defendant West. Defendants Soha, et al., appeal from the 

judgment in favor of defendant West. West appeals from 

that portion of the judgment ordering that plaintiff's 

attorney's fees be paid out of the insurance proceeds with 

no provision requiring reimbursement by defendants Soha, 

et al. 

On May 31, 1979, Frederick Soha purchased a home in Black 

Eagle, Montana, taking title solely in his name. 

Frederick Soha and Cynthia West were married on June 29, 

1979, and separated on September 15, 1979, after living 

together as husband and wife for a total of 79 days. 

On October 11, 1979, Frederick Soha applied for life 

insurance with the plaintiff, Northwestern National Life 
Insurance Company, through Mark Lopez, an insurance agent. 

The policy was issued on October 15, 1979. Frederick 

designated the primary beneficiary on the policy to be his 

wife, Cindy L. Soha (now Cynthia West), if living, otherwise 

to Charles Soha and LaRue Soha (Frederick's parents). When 

she entered into the property settlement and separation 

agreement, Cynthia West did not know that Frederick had 

purchased the insurance policy or that she was named as the 

primary beneficiary. 

Frederick Soha had the right to change the beneficiaries 

under the policy but he never exercised that right. 

On November 7, 1979, Frederick and Cynthia Soha executed 

a property settlement and separation agreement. Under the 

terms of the agreement Frederick retained title to the house 

in Black Eagle and remained liable for the debt owing on it. 

The agreement does not refer specifically to the life insurance 

policy. It contains a "Mutual Release" provision which 

provides : 

"In consideration of the execution of this 

agreement, and the terms and conditions thereof, 

each party hereto releases and forever discharges 

the other party, his or her personal representative, 

and assigns from any and all right, claims, demands 

and obligations except as herein specifically provided 

and each party is forever barred from having or 

asserting any such right, claim, demand or obligation 

at any time hereafter for any purpose. . . ." 

The agreement also contains a "Full Disclosure" 

provision which states: 

"Each of the parties hereto represents and 

warrants to the other as an integral part of 

this agreement that there has been a full 

disclosure of assets between parties." 

On November 8, 1979, a joint petition for dissolution 

of marriage was filed .in the District Court, and on November 

15, 1979, a decree of dissolution was entered. The decree 
incorporated the property settlement and separation agreement. 

On December 6, 1979, the insurance agent delivered the 

life insurance policy to Frederick Soha. At this time, the 

agent told Frederick that Cynthia was named as the primary 

beneficiary under the policy and that Frederick could change 

the beneficiary at any time. Frederick had told a friend 

that he was in no hurry to remove Cynthia's name from the 

policy because he believed the property settlement agreement 

took care of the problem. 

Frederick Soha died on May 3, 1980, as a result of an 

accident. He was survived by his ex-wife, Cynthia West, 

and by his parents, Charles and LaRue Soha. 

On this'record, the District Court entered summary 

judgment for Cynthia West. It is obvious, however, that 

questions of fact exist which require findings and a deterrtination by a trier of fact, especially as to the intent of 

the parties relating to the operation of the property settlement 

agreement. If their intent was that the agreement was final 

as to their property, then the right to proceeds would not 

vest in Cynthia West. The intent of the decedent as to the 

effect of the policy beneficiary designation in the light 

of the property settlement agreement is also a factual 

issue. Indeed, it may be an issue that the failure of 

Charles to disclose the presence of the insurance policy 

amounted to a breach of the full disclosure clause of the 

property settlement agreement. Where factual issues exist, 

entry of summary judgment is premature. Rule 56, M.R.Civ.P. 

The courts are divided on the effect of a property 

settlement agreement which for all purposes ends the claims 

of one party against another, in the light of insurance 
policies vesting later which have beneficiary designations 

that contravene the finality of the property settlement 

agreement. We have held that the function of a property 

settlement agreement is to make a "full and final" disposition 

of the parties' rights with respect to their joint and 

separate property. Miller v. Miller (1980), - Mont. I 

616 P.2d 313, 317, 37 St.Rep. 1523, 1525-26. A beneficiary 

of a policy of life insurance may become a trustee of the 

proceeds by force of attendant circumstances.. 44 Am.Jur.2d 

Insurance 5 1736. Kansas holds that the property settlement 

agreement is final, and neither party to the agreement can 

make any further claim except as provided in the agreement. 

Hollaway v. Selvidge (1976), 219 Kan. 345, 548 P.2d 835. 

Colorado and Florida agree, Matter of Estate of McEndaffer 

(1977), 192 Colo. 431, 560 P.2d 87; Hoffman v. White (Fla. 

App. 1973), 277 So.2d 290. Holding the other way are Shaw 

v. Board of Administration (1952), 109 Cal.2d 770, 241 P.2d 

635 (overruled on other grounds); Cassiday v. Cassiday (1969), 

256 Md. 5, 259 A.2d 299; and Cox v. Employer's Life Insurance 

Company of Wausau (1975), 25 Ill.App.3d 12, 322 N.E.2d 555. 

Wyoming, Costello v. Costello (Wyo. 1974), 379 F.Supp. 630, 

reasoned that the expectancy of a beneficiary is not effected 

unless the property settlement agreement clearly indicates 

that a contrary result is indicated. 

Since consent is an essential element of a contract, 

section 28-2-102, MCA, and consent is not mutual unless all 

the parties agree upon the same thing in the same sense, 

section 28-2-303, MCA, the extent and nature of the parties' 

consents to the property settlement agreement are questions 

of fact which must be first determined. Those questions 

have yet to be determined in this case. 
We affirm the award of attorney fees and costs to 

Northwestern National Life Insurance Company, the stakeholder 

in this case. A stakeholder, disinterested in the result, 

who interpleads money or property so that a court may decide 

the true owner is entitled to costs and reasonable attorney 

fees for the interpleader action. Mutual of Omaha Insurance 

Company v. Walsh (Mont. 1975), 395 F.Supp. 1219. Such fees 

and costs may be charged against the stake to be distributed. 

Rocky Mountain Elevator Co. v. Bamrnel (1938), 106 Mont. 407, 

81 P.2d 673. Whether the stake should be replenished by the 

losing party to the extent of the awarded fees and costs is 

a matter for the discretion of the District Court, depending 

upon the equities of the case. Generally, where a bona 

fide conflict exists between parties as to which is entitled 

to the stake, no absolute duty devolves upon the losing 

party to bear the interpleader's fees and costs as awarded. 

The District Court has discretion under section 25-8-101, 

MCA, to order the deposited money to be delivered "upon such 

conditions as may be just." 

Affirmed as to the appeal of Cynthia West with respect 

to attorneys fees and costs to the interpleader, and reversed 

and remanded for further proceedings as to the Soha appeal. 

No costs on appeal to either party. 

i/ Justice V 

We Concur: 

Chief Justice 
Justices