Estate of Shaw, Matter of, 92-606

Citation259 Mont. 117,855 P.2d 105
Decision Date21 June 1993
Docket NumberNo. 92-606,92-606
PartiesIn the Matter of the ESTATE OF Vern A. SHAW, a/k/a Vern Shaw, Deceased.
CourtUnited States State Supreme Court of Montana

Gene I. Brown, Landoe, Brown, Planalp & Braaksma, Bozeman, for appellant.

Suzanne A. Nellen, Bozeman, for respondent.

NELSON, Justice.

This is an appeal from a Fifth Judicial District Court, Madison County, denial of a petition for a restraining order in the matter of the Estate of Vern A. Shaw, a/k/a Vern Shaw. We remand for further proceedings consistent with this opinion.

There are two issues on appeal: (1) whether the word "or" between the names on a brand certificate creates a joint tenancy and (2) whether the claim of petitioner/appellant is subject to the equitable doctrine of laches.

Vern and Erma Jean Shaw owned and operated a cattle ranch near Cardwell, Montana. Erma passed away on November 3, 1990, and Vern passed away on April 24, 1991. In Vern's last will and testament, he bequeathed his entire estate to his wife and, if she predeceased him, to his four children in equal shares. Ronald Vern Shaw, Vern and Erma's son, and one of their daughters, Carol Marie Patrick, were named as co-personal representatives of his estate at the time of the informal probate. The two other daughters, Verna Louise Poore and Beverly Jean Roark, consented to the appointment.

However, Beverly later filed a petition for an order restraining final distribution of the estate on October 27, 1992. She contended that Vern owned a property interest in ranch livestock and a checking account at the Whitehall State Bank and that his interest in such property was to be divided equally among his children at the time of his death in accordance with his will.

In her petition, Beverly asserted that Ron was claiming the property as his own because he believed the livestock and the checking account were held in joint tenancy and that he was the surviving joint tenant. At the time of the hearing, Beverly had abandoned her claim concerning the checking account but sought a determination that the livestock were held in tenancy in common and therefore, should pass to the four children under Vern's will. Other facts will be provided as necessary.

"Our standard of review relating to conclusions of law ... is whether the tribunal's interpretation of the law is correct." Steer Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-475, 803 P.2d 601, 603.

ISSUE I.--JOINT OWNERSHIP VS. TENANCY IN COMMON

In the instant case, petitioner claims that the livestock are owned by the siblings as tenants in common because there was not a clear indication that the title created by the brand certificate was a joint tenancy. The respondent, however, contends that the use of the word "or" between the names on the brand certificate "creates a joint tenancy interest in the brand and, therefore, a joint tenancy interest in the cattle bearing such brand."

In support of his argument, the respondent cites § 81-3-105, MCA, which states that "the certificate is also prima facie evidence that the person entitled to use the mark or brand is the owner of all animals on which it appears" and that he is presumptively the sole owner of the cattle. We disagree with Ron's conclusion that the cited code section and the use of the word "or" between the names on the certificate creates a joint tenancy.

Section 81-3-105, MCA, provides:

Right of owner of recorded brand. A person in whose name a mark or brand is recorded is entitled to the exclusive use of the mark or brand on the species of animal and in the position designated in the record. A copy of the record certified by the department is prima facie evidence of this right, and the certificate is also prima facie evidence that the person entitled to use the mark or brand is the owner of all animals on which it appears in the position and on the species of animal stated in the certificate.

An official brand certificate for the Shaw cattle was issued on October 24, 1985 in the name of Vern A. or Erma Jean or Ronald V. Shaw. (Emphasis added.) In its order on the petition for a restraining order, the trial court stated that "[t]he certificate was issued in this form at the special personal request of the now deceased, Vern Shaw, his now deceased wife, Erma Shaw, and Ronald V. Shaw." The court further concluded that "[t]he proceeds of all livestock sold went into the mentioned survivorship banking accounts, ownership of which is not now in question. The entire ranching operation was conducted under the survivorship concept, i.e. vehicles, operating accounts, etc." The court noted in its supporting memorandum, however, that it did not believe that the single conjunction "or" and nothing else created a survivorship tenancy; or that, in using that term, the decedent and his wife intended to disinherit their other three children; or that § 81-3-105, MCA, did anything more than create a tool of marketing and identification.

Section 81-3-105, MCA, states that the person whose name is on the brand certificate is entitled to the exclusive use of the brand and is the prima facie owner of the animals on which the brand appears. While placing the name of a person on the brand certificate creates, prima facie, an ownership interest in that person in the brand and in the livestock so branded, the statute does not address the nature of interest created, nor does it resolve the question of ownership when one of the co-owners dies. Accordingly, § 81-3-105, MCA, is not determinative of the ownership of the cattle at issue.

Ron also argues that his position should be upheld on the basis of our decision in Marshall v. Minlschmidt (1966), 148 Mont. 263, 419 P.2d 486, which, at first blush, appears to resolve this ownership issue. A close reading of that case will, however, indicate that such reliance is misplaced.

In that case, Marshall, the administrator of the estate of the deceased, Henry Verne Field, brought an action against the surviving co-owners, the decedent's sister and brother-in-law, to recover partnership assets which were transferred by Field shortly before his death. The assets consisted of the decedent's bank account and an interest in cattle owned by the decedent and the defendants/appellants, William L. Minlschmidt and Etta M. Minlschmidt, the decedent's brother-in-law and sister. The brand certificate issued by the Montana Livestock Commission stated the ownership of the partnership brand as "Wm. L. or Etta M. Minlschmidt or Vern Field." However, during his last illness, Vern transferred the brand to the names of "Wm. L. or Etta M. Minlschmidt." Marshall, 419 P.2d at 489.

The pertinent issue considered by this Court in Marshall was whether there was "sufficient evidence for the lower court to conclude that plaintiff-respondent, as administrator, was the owner of one-half of the cattle herd, rather than the one-third interest indicated by the recorded brand?" Marshall, 419 P.2d at 488.

This Court noted that the District Court had received testimony from the decedent's son and sole heir-at-law and the son's wife that the deceased told them of his one-half interest in the partnership cattle, and that, on his death, the one-half interest was to go to the son. The District Court had also taken testimony from William Minlschmidt about the intent behind the use of the word "or" on the brand certificate. Minlschmidt stated that he used 'or' because "I have used that all my life, and 'or' if anything happens to one or the other it goes to the other party." Marshall, 419 P.2d at 489.

Without further analysis, we then stated, that "[t]he recorded brand signifies a joint interest in the brand, the several persons having equal shares," citing § 67-308, RCM 1947, the predecessor to § 70-1-307, MCA, discussed hereafter, and quoting from In State Board of Equalization v. Cole (1948), 122 Mont. 9, 195 P.2d 989. Marshall, 419 P.2d at 489.

We then went on to cite § 46-606, RCM, (now § 81-3-105, MCA), which states a brand certificate is prima facie evidence that the person who owns the brand is the owner of all the animals which have that brand. We continued, "A corollary to this statutory rule, that prima facie, one is the owner of cattle bearing his recorded brand is that prima facie the owners of the recorded brand have the same interest in the cattle bearing their brand as is indicated by the brand record." Marshall, 419 P.2d at 490.

We then concluded that "[t]his prima facie one-third joint ownership of the cattle must be contradicted and overcome by other evidence." Marshall, 419 P.2d at 490. We observed that the trial court was persuaded by the testimony of the decedent's son and daughter-in-law along with other testimony and facts that "... the prima facie one-third ownership evidenced by the brand record...." was overcome. The district court concluded that the respondent administrator owned a one-half interest in the partnership cattle, and we affirmed.

Marshall is not properly cited for the proposition that simply using the word "or" between the names of the owners on a brand certificate creates a joint tenancy between or among such persons. First, the opinion does not analyze the meaning of the word "or" as it appears on the brand certificate. The trial court simply accepted the witness' testimony that the use of "or" was meant to create a joint interest in the cattle and inquired no further. Second, the Marshall case cited, but did not discuss, the effect of then § 67-308, RCM, which is virtually the same as our present day § 70-1-307, MCA, and which requires that to create a joint interest or tenancy, an express declaration is required. Third, Marshall does not clearly delineate the concepts of joint tenancy and tenancy in common.

In fact, it can be argued that what is termed a "joint interest" in the opinion is actually a tenancy in common. Had the use of the word "or" on the brand certificate...

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2 cases
  • Estate of Hill, In re
    • United States
    • Montana Supreme Court
    • 6 Marzo 1997
    ... ...         This conclusion is supported by this Court's decisions In re Estate of Shaw (1993), 259 Mont. 117, 855 P.2d 105, and Lahren, 886 P.2d 412. In Shaw, this Court acknowledged ... ...
  • Estate of Lahren, Matter of
    • United States
    • Montana Supreme Court
    • 13 Diciembre 1994
    ...in the CDs and therefore, she had no joint tenancy or joint interest in the CDs. In a fairly recent opinion, Matter of Estate of Shaw (1993), 259 Mont. 117, 855 P.2d 105, we provided some guiding principles for determining whether property is held in joint tenancy. In Shaw, we held that the......

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