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,
-vs-
DOROTHY 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 & Cotter, Great Falls,
Montana
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
influence. The District Court of the Eighth Judicial
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 Leland LaPier, who is
currently incarcerated at the Montana State Prison.
A short time after they met, Lou and Kim were married on
October 23, 1987. She moved herself 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.
Lou's son, Dwight, died in January of 1988. At the
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 further concluded 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 . Judgment was t h e r e f o r e e n t e r e d
i n t h e i r favor. From t h i s judgment, the plaintiff appeals.
The p l a i n t i f f 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 . In fact
Lou's doctor t e s t i f i e d t o h i s belief t h a t Lou d i d h a v e t h e
mental capacity to understand and manage his financial
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. LVe, t h e r e f o r e ,
will examine the appellant's claim that 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 . I n re E s t a t e
of Aageson (1985), 217 Mont. 78, 702 P.2d 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 . Allen ( 1 9 8 4 ) , 209 Mont. 1 4 9 , 679 P.2d 1232.
Therefore, 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
the plaintiff has carried her burden of proving that the
gifts were a product of the Defendants' use of 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 influence was
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 . Cameron v . Cameron
( 1 9 7 8 ) , 179 Mont. 219, 587 P.2d 939. These c r i t e r i a , a s s e t
o u t i n Montana c a s e l a w , a r e :
(1) Confidential relationship of the person
attempting to influence the testator;
(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
on September 14, 1986. Lou took the death very hard.
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, s h e s o l d him h i s washer and d r y e r f o r $700.00, his
snowblower for $100.00, and his bedroom furniture for
$600.00.
I n December of 1987, a f t e r her 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 . When he l e f t , h e was
not a l l o w e d t o t a k e any o f h i s personal effects. Shortly
a f t e r h i s departure, 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. 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
and most of his personal property, Lou's monetary loss
approximated somewhere between $69,000-$74,000. The
Defendants, therefore, gained over $100,000 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 Rritton took Lou to her attorney on two
occasions. 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 . On t h e second o c c a s i o n ,
she obtained a warranty deed t o h i s house and a l l o f its
contents. 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
made by Dorothy Britton. She accompanied Lou to these
meetings and sat in with Lou while he spoke with the
attorney. This afforded her a unique opportunity to
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 .
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
to Dorothy Sritton. The testimony on this issue is
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, there i s no e v i d e n c e t h a t
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
l e a v e h i s house. 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
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, the Defendants presented evidence of their
close relationship with Lou Neidigh. 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 show h i s love f o r t h e Defendants and were
not, therefore, a product of undue influence. Britton 's
actions, however, speak l o u d e r t h a n any o f t h i s testimony.
As 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 another
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 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 s a l e s of property t o him r e s u l t e d from h e r
desire to protect the assets after his marriage to Kim
Stevens. In view of the overall actions of Britton, we
r e j e c t t h i s argument. Lou m a r r i e d K i m on October 2 3 , 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 . H i s monetary worth had d e c r e a s e d
by o v e r $20,000.00. 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. However, a s we have s t a t e d on
many occasions, the 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 -
ence. ~ 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
A
. .
A
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
knew what h e was d o i n g a t t h o s e t i m e s . H i s proper-
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
married Kim Stevens. (Emphasis s u p p l i e d . )
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 Doro-
t 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
B. 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 .
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 con-
tests 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.