delivered the opinion of the Court.
Both defendants appeal from a summary judgment entered in favor of defendant West in the Eighth Judicial District, Cascade County.
This case began as an interpleader action wherein the plaintiff, a life insurance company, filed a complaint and admitted its obligation to pay $29,310.00 pursuant to a life insurance рolicy issued by the plaintiff on the life of Frederick Charles Soha. The plaintiff was discharged from liability by depositing the funds with the clerk of the District Court. The defendants filed their respective answers and cross-complaints. Thereafter, defendant West filed a motion for summary judgment. The District Court granted the motion and entered summary judgment in favor of defendant West in the amount of $28,840.00, plus all interest which had accrued thereon. This amount ($28,840.00) was arrived at by subtracting $470.00, which was awarded to plаintiff for attorney’s fees and costs, from the $29,310.00 awarded to defendant West. Defendants *97 Soha, et al., appeal from the judgment in favor of defendant West. Wеst appeals from that portion of the judgment ordering that plaintiff’s attorney’s fees be paid out of the insurance proceeds with no provision requiring reimbursement by defendants Soha, et al.
On May 31,1979 Frederick Soha purchased a home in Black Eagle, Montana, taking title solely in his name.
Frederick Soha аnd Cynthia West were married on June 29, 1979, and separated on September 15, 1979, after living together as husband and wife for a total of 79 days.
On October 11, 1979, Frederick Sohа applied for life insurance with the plaintiff, Northwestern National Life Insurance Company, through Mark Lopez, an insurance agent. The policy was issuеd on October 15, 1979. Frederick designated the primary beneficiary on the policy to be his wife, Cindy L. Soha (now Cynthia West), if living, otherwise to Charles Soha and LaRue Sоha (Frederick’s parents). When she entered into the property settlement and separation agreement, Cynthia West did not know that Frederick had purсhased the insurance policy or that she was named as the primary beneficiary.
Frederick Soha had the right to change the beneficiaries under the policy but he never exercised that right.
On November 7, 1979, Frederick and Cynthia Soha executed a property settlement and separation agreement. Under the terms of the agreement Frederick retained title to the house in Black Eagle and remained liable for the debt owing on it. The agreement does not refer specifically to the life insurance policy. It contains a “Mutual Release” provision which provides:
“In consideration of the execution of this agreement, and the terms and conditions thereof, each party hereto releases and forever discharges the other pаrty, his or her personal representative, and assigns from any and all right, claims, demands and obligations except as herein specifically provided and each party is forever barred from having or asserting any such right, claim, demand or obligation at any time hereafter for any purpose. . .”
The agreement also contains a “Full Disclosure” provision which states:
*98 “Each of the parties hereto represents and warrants to the other as an integral рart of this agreement that there has been a full disclosure of assets between parties.”
On November 8,1979, a joint petition for dissolution of marriage was filed in the District Court, and on November 15, 1979, a decree of dissolution was entered. The decree incorporated the property settlement and separation agreement.
On December 6,1979, the insurance agent delivered the life insurance policy to Frederick Soha. At this time, the agent told Frederiсk that Cynthia was named as the primary beneficiary under the policy and that Frederick could change the beneficiary at any time. Frederick had told a friend that he was in no hurry to remove Cynthia’s name from the policy because he believed the property settlement agreement took carе of the problem.
Frederick Soha died on May 3, 1980, as a result of an accident. He was survived by his ex-wife, Cynthia West, and by his parents, Charles and LaRue Soha.
On this reсord, the District Court entered summary judgment for Cynthia West. It is obvious, however, that questions of fact exist which require findings and a determination by a trier of fact, especially as to the intent of the parties relating to the operation of the property settlement agreement. If their intent was that the agreement was final as to their property, then the right to proceeds would not vest in Cynthia West. The intent of the decedent as to the effect of the policy benеficiary designation in the light of the property settlement agreement is also a factual issue. Indeed, it may be an issue that the failure of Charles to disclose the presence of the insurance policy amounted to a breach of the full disclosure clause of the property settlement agrеement. Where factual issues exist, entry of summary judgment is premature. Rule 56, M.R.Civ.P.
The courts are divided on the effect of a property settlement agreement which for all purposes ends the claims of one party against another, in the light of insurance policies vesting later which have beneficiary designаtions that contravene the finality of the property settlement agreement. We have held that the function of a property settlement agreеment is to
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make a “full and final” disposition of the parties’ rights with respect to their joint and separate property.
Miller v. Miller
(1980), Mont.,
Since consent is an essential element of a contract, section 28-2-102, MCA, and consent is not mutual unless all the parties agree uрon the same thing in the same sense, section 28-2-303, MCA, the extent and nature of the parties’ consents to the property settlement agreement are questions of fact which must be first determined. Those questions have yet to be determined in this case.
We affirm the award of attorney fees and costs to Northwestern National Life Insurance Company, the stakeholder in this case. A stakeholder, disinterested in the result, who interpleads money or property so that а court may decide the true owner is entitled to costs and reasonable attorney fees for the interpleader action.
Mutual of Omaha Insurance Company v. Walsh
(Mont. 1975),
Affirmed as to the appеal of Cynthia West with respect to attorneys fees and costs to the interpleader, and reversed and remanded for further proceedings as to the Soha appeal. No costs on appeal to either party.