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Albinger v. Harris6/6/2002
The only revocable gift recognized by Montana law is a gift in view of death. See §§§§ 70-3-201, et. seq., MCA. Also known as a gift causa mortis, such a gift is subject to the following conditions: 1) it must be made in contemplation, fear or peril of death; 2) the giver must die of the illness or peril that he or she fears or contemplates; and 3) the delivery must be made with the intent that the gift will only take effect if the giver actually dies. Section 70-3-201, MCA; Nelson v. Wilson (1928), 81 Mont. 560, 570, 264 P. 679, 682; O'Neil, 43 Mont. at 511, 117 P. at 890. Statutory law provides that a gift in view of death may be revoked by the giver at any time and is revoked by the giver's recovery from the illness or escape from the peril under which the gift was made. Section 70-3-203, MCA.
Albinger maintains he held a reversionary interest in the gift of the engagement ring grounded in an implied condition subsequent. Montana law recognizes the transfer of personal property subject to an express or implied condition which must be satisfied before title vests, as either a contract, §§ 28-1-405, MCA, or as a gift in view of death, §§§§ 70-3-201, et. seq., MCA. Since actions stemming from breach of the contract to marry are barred by our "anti-heart balm" statute, Albinger urges the Court to adopt a conditional gift theory patterned on the law relevant to a gift in view of death. Under Montana law, no gift is revocable after acceptance except a gift in view of death. While some may find marriage to be the end of life as one knows it, we are reluctant to analogize gifts in contemplation of marriage with a gift in contemplation of death. This Court declines the invitation to create a new category of gifting by judicial fiat.
Gender Bias
38 Article II, Section 4 of the Montana Constitution recognizes and guarantees the individual dignity of each human being without regard to gender. This Court and the Montana State Bar have recognized the harm caused by gender bias and sexual stereotyping in the jurisprudence and courtroom of this state. In the Matter of the State Bar of Montana's Gender Fairness Steering Committee, No. 90-231 (1990) (Petition and Order); In re Marriage of Davies (1994), 266 Mont. 466, 480-82, 880 P.2d 1368, 1378 (Nelson, J., concurring). In its Petition to the Supreme Court, the State Bar of Montana's Gender Fairness Steering Committee listed four forms of gender bias: a) denying rights or burdening people with responsibilities solely on the basis of gender; b) subjecting people to stereotypes about the proper behavior of men and women which ignore their individual situations; c) treating people differently on the basis of gender in situations in which gender should be irrelevant; and d) subjecting men or women as a group to a legal rule, policy, or practice which produces worse results for one group than the other.
39 The Montana Legislature made the social policy decision to relieve courts of the duty of regulating engagements by barring actions for breach of promise. While not explicitly denying access to the courts on the basis of gender, the "anti-heart balm" statutes closed courtrooms across the nation to female plaintiffs seeking damages for antenuptial pregnancy, ruined reputation, lost love and economic insecurity. During the mid-20th Century, some courts continued to entertain suits in equity for antenuptial property transfers. The jurisprudence that rose upon the implied conditional gift theory, based upon an engagement ring's symbolic associations with marriage, preserved a right of action narrowly tailored for ring givers seeking ring return. The bright-line rule of ring return on a no-fault basis, which Albinger urges this Court t
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