No. 81-419 

IN THE SUPREPqE COURT OF THE STATE OF MONTANA 

1982 

RALPH CRADDOCK, 

Plaintiff and Appellant, 

ROBERT BERRYMAN and GEORGE TREVENNA, 

Personal Representatives of the 

Estate of Oscar W. Craddock, 

deceased, et al., 

Defendants and Respondents. 

.1 from: District Court of the Second Judicial District, 

In and for the County of Silver Bow 

Honorable W. W. Lessley, Judge presiding. 

Counsel of Record: 

For Appellant: 

Edward D. Yelsa, Anaconda, Montana 

For Respondents: 

Burgess, Joyce and Whalen, Butte, Montana 

Neil Lynch, Butte, Montana 

Filed: 

Submitted on briefs: February 4, 1982 

Decided: May 6, 1982 

MAY 6 

u- ,XI " Clerk 
Mr. ~ustice Frank B. Morrison, Jr., delivered the Opinion of the 

Court. 

Appellant brought an action in the Second Judicial 

District Court seeking to quiet title based upon adverse 

possession or, in the alternative, to obtain a decree of 

specific performance of an oral contract to make a will. 

The trial court entered summary judgment in favor of defendant 

on appellant's claim of adverse possession. Trial was held 

to the court on appellant's claim for specific performance. 

The trial court entered judgment in favor of defendants, 

denying the relief requested. Appellant appeals both judgments. 

Oscar Craddock died on November 22, 1969, at the age of 

80 years. Oscar Craddock and the appellant, Ralph Craddock, 

were brothers. The two brothers farmed and ranched near 

Rocker and Ramsay in Silver Bow County, Montana. Oscar 

Craddock sustained several horse-connected injuries and 

became crippled from arthritis in the early 1950's. 

Ralph Craddock testified that in August of 1954, Oscar 

proposed to Ralph that if he, Ralph, would move his equipment 

down to Oscar's place, and care for Oscar's ranch and for 

Oscar himself, that he, Oscar, would leave his land to 

Ralph. Ralph Craddock further testified that he performed 

by moving to Oscar's ranch, caring for Oscar personally, and 

doing all of the ranch work. Corroborative testimony was 

received showing that Ralph Craddock cared for his brother's 

personal needs and worked his ranch. However, there was no 

testimony which directly corroborated Ralph's testimony that 

there was an oral contract to will him the land. Based upon 

this testimony, the appellant sought to have an oral contract 

to make a will specifically performed. 

In March of 1972, a purported holographic will was 

found, leaving Oscar's land to Ralph. After three appeals 
to the Montana Supreme Court, the purported holographic will 

was declared to be invalid and denied admission to probate. 

See In re Craddockts Estate (1975), 166 Mont. 68, 530 P.2d 

483; In re Craddockts Estate (1977), 173 Mont. 8, 566 P.2d 

45; In re Craddock's Estate (1978), 179 Mont. 74, 586 P.2d 

292. 

Appellant sought to quiet title based upon adverse 

possession by filing a complaint in March of 1980. He 

alleged that he had been in possession of the land since 

November of 1969, when Oscar Craddock died. He alleged he 

had been in actual, exclusive, open, notorious and adverse 

possession of the land, under claim of title and color of 

title for a continuous period of five years preceding the 

filing of the action and, during the time in question, had 

paid all taxes assessed against the property. Respondents 

contend that from and after March, 1972, when appellant 

offered the purported holographic will for probate, litigation 

was in existence over the status of title to the property 

and that the limitation period necessary for adverse possession 

could not run. 

The following issues are dispositive: 

(1) Did the trial court err in granting summary judgment 

on the issue of adverse possession? 

(2) Is there substantial credible evidence to support 

the trial court's finding that there was no oral contract to 

make a will? 

Defendants moved for summary judgment on the adverse 

possession count, contending that appellant claimed title 

under the purported holographic will and was estopped from 

claiming title by adverse possession. Respondents further 

rely upon Flathead Lumber Corporation v. Everett (1953), 127 

Mont. 291, 263 P.2d 376, wherein this Court said: 
"During the pendency of the action defendants 

can acquire no new right as against plaintiffs 

by the mere fact that they remain in possession." 

The District Court, in its opinion of August 20, 1980, 

held the undisputed facts showed that the plaintiff was not 

in possession, claiming adversely, and hence granted summary 

j udgment . 

The record clearly shows that the appellant claimed 

under color of right against the interest of respondents and 

did so continuously from 1969 to the present. The record 

also shows that appellant paid taxes on the property for the 

statutory period. However, the weakness in the appellant's 

position is that respondents did not acquiesce in appellant's 

claim to the property, but rather contested that right. 

Since 1972, respondents have sought to dispossess appellant 

through the litigation process and, during the pendency of 

that litigation, the period for adverse possession does not 

run. See Flathead Lumber Corporation v. Everett, supra, and 

authorities cited therein. The summary judgment in favor 

of respondents on adverse possession is affirmed. 

Appellant contends that the undisputed evidence in this 

case proves an oral contract whereby Oscar Craddock agreed 

to leave his land to appellant, the consideration being 

appellant's services rendered to Oscar Craddock. Respondents 

counter by asserting the law looks with disfavor upon oral 

contracts to make a will and, absent clear and convincing 

proof of such a contract, courts will not honor them. 

Appellant gave testimony which, if believed, would 

support an oral contract to make a will. The remainder of 

the testimony offered only proved that Oscar Craddock intended 

to leave his land to the appellant and that the appellant 

rendered services to Oscar Craddock. After hearing all of 
the testimony, the trial court determined that appellant had 

failed to carry his burden and denied specific performance. 

Contracts to make wills are looked upon with disfavor 

because the other contracting party is dead and cannot 

affirm or deny the making of the contract. The law, therefore, 

requires clear and convincing evidence. Sanger v. Huguenel 

(1922), 65 Mont. 236, 221 P. 349. See also Cox v. Williamson 

(19511, 124 Mont. 512, 227 P.2d 614; Conitz v. Walker (1975), 

168 Mont. 238, 541 P.2d 1028. 

The rule in Sanger is based upon sound public policy. 

Section 72-2-105, MCA, 1981, now provides that a contract to 

make a will must be in writing or referred to in a written 

will. The codification is an extension of a public policy 

enunciated in Sanger. 

This Court has repeatedly held that it will not substitute 

its judgment for that of the lower court on factual issues 

if there is credible evidence to support the court's findings. 

Kearns v. McIntyre Construction Co. (1977), 173 Mont. 239, 

567 P.2d 433. The trial court found the services rendered 

were rendered gratuitiously, out of brotherly love and not 

as a result of the alleged oral contract. There is sufficient 

credible evidence in the record from which the trial court 

could draw such an inference. Therefore, we affirm the 

judgment of the trial court in denying specific performance 

of the alleged oral contract. 

Appellant also contends he was denied his right to 

trial by jury. The record shows that after defendants' 

motion for summary judgment on adverse possession was granted, 

the court set the remaining count, that being one for specific 

performance, for trial to the court without a jury. No 

objection was made to trial commencing without a jury. 
Furthermore, the relief sought was equitable. Appellant's 

argument fails. 

Appellant, after judgment denying specific performance 

was entered, sought to amend the judgment to allow damages 

for the reasonable value of services performed for Oscar 

Craddock. This was denied by the trial court and properly 

so. A claim for damages was not pleaded, not addressed in 

the evidence and could not be raised post judgment. 

The judgment of the trial court is in all respects 

a£ f irmed. 

We Concur: _, .