Estate of Theodore C. Chemodurow, Deceased, Gail C. Williams, Executor - Page 13




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               which she claimed reflected the transfer from Theodore,                
               including the tractor. * * *   Yet, there was nothing                  
               presented at trial to indicate that she paid anything                  
               for the machinery.  The transfer document submitted by                 
               Gail consists of three pages, the final two being                      
               prepared by Cyndi.  Cyndi testified that the two final                 
               pages had not been prepared until late September or                    
               early October of 1995.  This is supported by Def. Ex.                  
               509C which is the third page of Def. Ex. 509B except                   
               with a date of October 1995 at the bottom.  Gail’s                     
               claim that Def. Ex. 509B was created on or before                      
               August 30, 1995 is inconsistent with the date on Def.                  
               Ex. 509C and Cyndi’s testimony.                                        
                           *    *    *    *    *    *    *                            
                    69.  As for the unlawful possession of the truck                  
               and machinery and equipment, Gail at first claimed the                 
               personal property belonged to the Estate and then they                 
               belonged to her in accordance with an assignment dated                 
               August 30, 1995. * * *   Theodore, however, still                      
               considered the property his as late as September of                    
               1995 because he gave Paul the back hoe to use as a                     
               trade in, an item that Gail claims was transferred to                  
               her in August.  * * *                                                  
          Among the conclusions of law reached by the State court were the            
          following:                                                                  
                    3.  The Livestock Agreement is a valid contract as                
               all essential elements to a contract are present,                      
               namely, identifiable parties capable of contracting,                   
               their consent, lawful object and consideration.  �28-2-                
               102, MCA; Klawitter v. Dettmann, (1994), 268 Mont. 275,                
               280, 886 P.2d 416, 419.                                                
                    4.  As reflected in the Livestock Agreement, the                  
               intent of the parties was to make it binding upon their                
               respective heirs, personal representatives and assigns.                
               Theodore’s Last Will and Testament also instructs his                  
               personal representative to pay all debts.  (Pl. Ex.1).                 
               The Livestock Agreement is binding upon Gail as                        
               Theodore’s personal representative.  See Baker v.                      
               Berger (1994), 265 Mont. 21, 28, 876 P.2d 940, 944.                    

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