CHRISTENSEN v BRITTON
Annotate this Case
Download PDF
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 Montana & Cotter, Great Falls, 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 . The District Court of the Eighth Judicial influence 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 currently incarcerated at the Montana A short time after they met, Lou October 23, 1987. She moved herself Leland LaPier, who is State Prison. and Kim were married on 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 marriage to Kim. s 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. At the Lou's son, Dwight, died in January of 1988. 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 t r i a l , t h e D i s t r i c t Court held t h a t t h e v a r i o u s g i f t s and t r a n s a c t i o n s between Lou and t h e D e f e n d a n t s were v a l i d . The court concluded further that the Defendants did not e x e r c i s e undue i n f l u e n c e o v e r Lou and Lou was c o m p e t e n t a t t h e time of t h e t r a n s a c t i o n s . i n t h e i r favor. Judgment was t h e r e f o r e e n t e r e d From t h i s judgment, The p l a i n t i f f the plaintiff appeals. a d v a n c e s two t h e o r i e s , e i t h e r o f which i f p r o v e n would o p e r a t e t o i n v a l i d a t e t h e t r a n s f e r s o f p r o p e r t y by Lou N e i d i g h t o t h e D e f e n d a n t s . She m a i n t a i n s t h a t e i t h e r Lou l a c k e d t h e c a p a c i t y n e c e s s a r y t o make a v a l i d g i f t o r , i n t h e a l t e r n a t i v e , t h a t t h e g i f t s w e r e obtained through t h e use o f undue i n f l u e n c e . The e v i d e n c e d o e s n o t s u p p o r t h e r c l a i m t h a t Lou l a c k e d t h e c a p a c i t y t o make a v a l i d g i f t . Lou's doctor t e s t i f i e d t o h i s belief mental capacity to understand t h a t Lou d i d h a v e t h e and manage his a f f a i r s a t t h e t i m e t h e t r a n s f e r s were made. will examine the appellant's In fact claim that financial LVe, t h e r e f o r e , the gifts were o b t a i n e d t h r o u g h t h e u s e o f undue i n f l u e n c e . P r o o f o f undue i n f l u e n c e d o e s n o t depend upon a showing o f m e n t a l i n c a p a c i t y on t h e p a r t o f t h e d o n o r . of Aageson (1985), 217 Mont. 78, 702 P.2d I n re E s t a t e 338. Undue i n f l u e n c e i s n e v e r presumed and must b e p r o v e n l i k e any o t h e r fact. Adams v . plaintiff gifts ( 1 9 8 4 ) , 209 Mont. 1 4 9 , 679 P.2d 1232. w e must r e v i e w t h e e v i d e n c e t o d e t e r m i n e w h e t h e r Therefore, the Allen were a has carried product her of the burden of proving Defendants' use that of the undue influence. I n Montana, t h e q u e s t i o n o f w h e t h e r undue i n f l u e n c e was e x e r c i s e d on a d o n o r making a g i f t i s d e t e r m i n e d by t h e same criteria used in deciding whether undue e x e r c i s e d on a t e s t a t o r making a w i l l . ( 1 9 7 8 ) , 179 Mont. 219, 587 P.2d 939. o u t i n Montana c a s e l a w , a r e : influence Cameron v . was Cameron These c r i t e r i a , a s s e t (1) Confidential relationship of attempting to influence the testator; the person (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 Lou took the death very hard. on September 14, 1986. 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 p e r s o n a l p r o p e r t y be r e t u r n e d , R r i t t o n s o l d them t o him. For instance, his s h e s o l d him h i s washer and d r y e r f o r $700.00, snowblower for $100.00, and his bedroom of a f t e r her furniture for $600.00. I n December 1987, r e l a t i o n s h i p with Lou began t o d e t e r i o r a t e , Dorothy B r i t t o n f o r c e d Lou t o l e a v e t h e house t h a t h e owned f o r o v e r 30 y e a r s . not a l l o w e d t o t a k e any o f a f t e r h i s departure, When he l e f t , h e was h i s personal effects. Shortly R r i t t o n r e n t e d t h e house t o h e r s i s t e r f o r $342.00 a month. The only conclusion that can he drawn from these t r a n s a c t i o n s i s t h a t t h e y were u n n a t u r a l and were t h e p r o d u c t of an unbalanced mind o r one t h a t was e a s i l y s u s c e p t i b l e t o influence. and W p o i n t o u t t h a t i n a d d i t i o n t o l o s i n g h i s home e most of his approximated personal somewhere Defendants, therefore, property, between gained Lou's monetary loss $69,000-$74,000. over $100,000 The through their d e a l i n g s w i t h Lou. As a final consideration in our examination of undue i n f l u e n c e , we must l o o k a t t h e demands made by t h e Defendants a s t h e y may have a f f e c t e d Lou. Due t o h i s weakened p h y s i c a l and e m o t i o n a l s t a t e , Lou was h i g h l y s u s c e p t i b l e t o i n f l u e n c e e x e r t e d by t h e Defendants. Moreover, t h e manner i n which t h e v a r i o u s t r a n s a c t i o n s took p l a c e i s highly suspect. Dorothy occasions. Rritton took Lou to obtained contents. made by meetings attorney. attorney on two On t h e f i r s t o c c a s i o n s h e o b t a i n e d b l a n k e t power of a t t o r n e y over h i s e n t i r e e s t a t e . she her a warranty deed On t h e second o c c a s i o n , t o h i s house and a l l o f its The a p p o i n t m e n t s f o r b o t h of t h e s e m e e t i n g s were Dorothy and sat This Britton. She accompanied with Lou while afforded her a in he unique i n f l u e n c e t h e d i s p o s i t i o n of L o u ' s p r o p e r t v . Lou spoke to these with opportunity the to 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 The testimony on this issue is to Dorothy Sritton. 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 o f Lou's intent, i s no e v i d e n c e t h a t there t h e y knew i t was done and t h a t h e may l a t e r be forced to Nor i s t h e r e any e v i d e n c e t h a t t h e y knew o f l e a v e h i s house. t h e e x t e n s i v e d r a i n on h i s f i n a n c i a l r e s o u r c e s . Finally, close the Defendants relationship with presented Lou evidence Neidigh. of their Dorothy Rritton t e s t i f i e d t h a t Lou was " l i k e a g r a n d f a t h e r " t o h e r . Another w i t n e s s t e s t i f i e d t h a t Lou s t a t e d t h a t R r i t t o n was more of a d a u g h t e r t o him t h a n h i s own. T h i s c l o s e r e l a t i o n s h i p , it i s m a i n t a i n e d , i n d i c a t e s t h a t t h e g i f t s were made a s a r e s u l t of Lou's desire t o not, therefore, actions, As show h i s a however, love product speak of f o r t h e Defendants undue Britton 's influence. l o u d e r t h a n any o f and were t h i s testimony. a m a t t e r of common human e x p e r i e n c e , we f i n d it h a r d t o comprehend how one c o u l d a t t h e same t i m e t h i n k o f person as a " g r a n d f a t h e r " and t h e n e v i c t him another from h i s own house. B r i t t o n m a i n t a i n s t h a t L o u ' s removal from t h e house and the subsequent desire to Stevens. s a l e s of protect the In of view r e j e c t t h i s argument. property assets the t o him r e s u l t e d after overall his from h e r marriage actions of to Kim Britton, Lou m a r r i e d K i m on October 2 3 , we 1987. By t h i s t i m e B r i t t o n had o b t a i n e d ownership of h i s h o u s e , h i s c a r and o t h e r p o s s e s s i o n s . by o v e r $20,000.00. H i s monetary worth had d e c r e a s e d W a l s o p o i n t o u t t h a t upon t h e f i l i n g e of t h i s l a w s u i t , o n l y one Defendant r e t u r n e d L o u ' s p r o p e r t y . T h a t d e f e n d a n t was K i m S t e v e n s . The f a c t s o f t h i s c a s e p a i n t a v i v i d p i c t u r e o f u n f a i r a d v a n t a g e and undue i n f l u e n c e o v e r an e l d e r l y and d e p r e s s e d man. W are, e therefore, obligated t o reverse. W do n o t e t a k e l i g h t l y t h e f a c t t h a t we a r e r e v e r s i n g t h e f i n d i n g s of a c o u r t s i t t i n g without a jury. many occasions, the However, a s we have s t a t e d on findings of a court s i t t i n q 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: d h 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, 2 9 3 , 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 h e r a n immediate g i f t o f t h i s p r o p e r t y t o a v o i d any future w i l l contests . . . With f u r t h e r r e g a r d t o t h e t r a n s f e r o f t h e h o u s e , the Dis- t r i c t C o u r t found: 9 . F o l l o w i n g the t r a n s f e r o f t h e h o u s e t o Dorothy, Clarence continued t o l i v e i n t h e house u n t i l November o r December 1987 when h e moved t o a n o t h e r h o u s e h e had p u r c h a s e d . I n connection with t h e d e e d o f t h e h o u s e t o D o r o t h y , t h e r e was a n o r a l u n d e r s t a n d i n g between C l a r e n c e and D o r o t h y t h a t Clarence c o u l d s t a y i n t h e house a s long a s he wanted t o s o l o n g a s h e p a i d t h e t a x e s and m a i n t e n a n c e on t h e h o u s e . . . With r e g a r d t o t h e i s s u e o f d u r e s s and undue i n f l u e n c e , t h e f i n a l f i n d i n g o f f a c t by t h e D i s t r i c t C o u r t was: 1 9 . A l t h o u g h C l a r e n c e now w a n t s h i s p r o p e r t y t o him t h e c o u r t f i n d s - - e v i d e n c e p r e s e n t e d that the d o e s -t e s t a b l i s h t h a t C l a r e n c e ' s d e c i s i o n s w i t h no r e s p e c t t o h i s f i n a n c i a l a f f a i r s and p r o -. e r t y p i n t e r e s t s were made u n d e r d u r e s s - o r undue i n f l u ~ h r e v i d e n c e w r e ~ o n d e r a t e s i n favor of ence. f i n d i n g t h a t C l a r e n c e made h i s own d e c i s i o n s and H i s properknew what h e was d o i n g a t t h o s e t i m e s . t y d i s p o s i t i o n d e c i s i o n s may h a v e been u n w i s e . C l a r e n c e h i m s e l f - - t e s t i f y -a t- e-was did not th h c o e r c e d o r u n d e r undue i n f l u e n c e from anyone when h e made t h e g i f t s o f h i s p r o p e r t y and when h e (Emphasis s u p p l i e d . ) married Kim Stevens. A . . A The D i s t r i c t C o u r t t h e n made t h e f o l l o w i n g c o n c l u s i o n s o f l a w which h a v e e l e m e n t s o f f a c t u a l f i n d i n g s i n them: 2. C l a r e n c e B. N e i d i g h made a v a l i d g i f t by deed o f h i s house t o g e t h e r w i t h t h e f u r n i t u r e , f u r n i s h i n g s and e q u i p m e n t l o c a t e d t h e r e i n t o Dorot h y B r i t t o n on F e b r u a r y 1 0 , 1987. .. 3. The v a r i o u s t r a n s a c t i o n s between C l a r e n c e N e i d i g h a n d D o r o t h y B r i t t o n whereby s h e s o l d t o him a 1982 F o r d , h o u s e h o l d f u r n i s h i n g s and g u n s were f a i r and r e g u l a r . B. 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 ~larenceB. Neidiqh to Dorothy Britton was obtained through duress o r 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.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
