Estate of Sander, Matter of, 90-424

• Docket Nº: No. 90-424
• Citation: 247 Mont. 328, 806 P.2d 545
• Case Date: February 26, 1991
• Court: United States State Supreme Court of Montana

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806 P.2d 545 247 Mont. 328 In the Matter of the ESTATE OF Howard L. SANDER, Deceased. No. 90-424. Supreme Court of Montana. Submitted on Briefs Jan. 24, 1991.
Decided Feb. 26, 1991.

[247 Mont. 329] Richard R. Buley, Tipp, Frizzell & Buley, Missoula, for appellant.

Charles H. Recht, Recht & Greef, P.C., Hamilton, Thomas W. Trigg, Missoula, for respondent.

TURNAGE, Chief Justice.

This is a dispute over property which was included in the estate of Howard L. Sander. The District Court of the Fourth Judicial District, Missoula County, ruled that four contested items of property were not part of the estate and were the sole property of the surviving joint tenant, Mary Sander. The estate of Jean Sander appeals. We vacate the judgment in part and affirm in part.

The issues are:

1. Did the District Court err in holding that the contested property was held by the deceased in joint tenancy with his ex-wife rather than in tenancy in common?

2. Did the court improperly admit into evidence certain hearsay testimony concerning the decedent's statements of intent regarding ownership of the contested property?

Howard and Mary Sander were married from 1946 through 1977. Their three surviving children are now adults. During their marriage, Howard and Mary owned, as joint tenants, ranch land and mineral rights in North Dakota. When the family moved to Montana in 1971, Howard and Mary disposed of the North Dakota real estate but retained mineral rights therein. They invested the proceeds of the sale of the North Dakota property in land which

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they purchased as joint tenants in Montana.

In 1977, the marriage of Howard and Mary was dissolved. The dissolution decree provided in part:

the real and personal property accumulated by the parties during their marriage [shall] be equitably distributed and if the parties are not able to come to an amicable agreement as to the division of their property, the Court will hold the necessary hearings to make such [247 Mont. 330] division in an equitable manner.

Howard and Mary never sought further assistance of the court in dividing their marital property.

Both during and after their marriage, Howard and Mary contracted to sell portions of their Montana property. Three of the properties in dispute here, which shall be referred to as the Van Wagoner property, the DiFrancesco property, and the Buffalo Bill Ranch, were sold on contracts. Howard and Mary also leased their North Dakota mineral rights. They usually split the payments received on the contracts and leases.

Howard died in July 1987. At that time, he was married to Jean Sander, who became the personal representative of his estate. When she completed the inventory and appraisement for the estate, Jean included in the list of property the North Dakota mineral rights, the Van Wagoner property, the DiFrancesco property, and the Buffalo Bill Ranch. Mary filed an objection that these items should not be included in the estate. After a hearing, the court ruled that Mary held sole title to the disputed property as the sole surviving joint tenant.

I

Did the District Court err in holding that the contested property was held by the deceased in joint tenancy with his ex-wife rather than in tenancy in common?

In Montana, a joint interest in property is created when the transfer of the property expressly declares the interest to be a joint tenancy. Section 70-1-307, MCA. If not specifically declared in its creation to be a joint tenancy, an interest in favor of several people is an interest in common. Section 70-1-314, MCA. It is not...