### No. 

### 12632 INTHE SUPREME COURT OF THE STATE OF MONTANA 

### 1974

EUNICE

### WALLIN, Opponent and Appellant,

-vs

# - JESSE KINYON 

### ESTATE, Proponent and Respondent.
Appeal from: District Court of the Fourteenth Judicial District, Honorable LeRoy L. 

### McKinnon, Judge presiding. Counsel of Record: For Appellant: 

### Richard Conklin argued, White 

### Sulphur Springs, Montana For Respondent: 

### John V. Potter, 

### Jr. argued, White 

### Sulphur Springs,

Montana
Submitted: February 

### 25, 1974 Decided: 

## 1 4

## 199 ~iled: 

## MAR 14

## 19#Mr. JusticeFrank I. Haswell delivered the Opinion of the Court. This isan appeal from a judgment of the district court of Meagher County, the Hon. LeRoy L. McKinnon presiding, granting proponent's motion for a directed verdict admitting the 

### willof Jesse Kinyon toprobate. The testator, Jesse Kinyon, by 

### willdated January 18, 1971, made bequests of $1,000 each tothree nieces (including contestant Eunice Wallin), $2,000 toa cousin,King Walters, and bequeathed the remainder of his estatetothe Mayn Cemetery District. The 

### willindicatesthe testator's reasons for leaving the remainder of his estate tothe cemetery districtwas tomake possible the fencing, restoring and maintaining the Fort Logan burial ground atwhich his parents were buried, and touse the remainder to improve theMayn cemetery atwhich the testator wished tobe buried

# . The 

### willwas drafted by Jennie L. Minder, thepublic administratrix of Meagher County, with the aid of John V. Potter, an attorney who employed her ashis secretary. She was called by Kenneth Twichel, the clerk of court, tohelp the testator draw up
a 

### will. By the termsof the will she was appointed executrix. Testator died January 26, 1971, atage 79, leaving approximately $30,000 inhis estate. Atthe time of his death, he was residing ina rest home inMeagher County. He left survivinghim
ashis nearest relatives eight nieces and nephews. The petition for probate of thiswillwas contested by the testator's niece, Eunice Wallin, appellant herein. Under a former 

### willdated January 17, 1967, testator lefthis entire estatetoher. After the districtcourt's denial of proponent's motion for summary judgment, the matter went totrialbefore a jury April 4, 1973, on issues of (1)proper attestation of the

### will, and (2) undue influence. Atthe beginning of the jury trial,the district court granted proponent's motion in limine to exclude testimony regarding the claimed invalidity of the charitablebequest totheMayn Cemetery District, and the alleged actions of the executrix indraftingthe 

### willas constituting the practice of 

### lawwithout a license. Proponent presented testimony of the two subscribing witnesses (employees of the 

### rest home where testator was being cared for), and the testimony of proponent astoher qualifications and willingness toact as executrix. Both subscribing witnesses tothe willacknowledged that prior tosigning it, each had taken notice of the attestation clause of the 

### willappearing above their signatures and knew the purpose for which their signaturewas requested. Proponent testified that the testator had read the first draft of the 

### willhimself, that after some minor changes had been made athisrequest, she read the final draft tohim immediately prior tohis signing. Attesting witness Clark testified that when she entered the testator's room prior towitnessing the 

### will, the testator
was "sitting ina chair with a littletable in front of him"; that the proponent asked him "if he understood what had been read tohim, and if he wanted her tore-read it and he said no." She further testified that testator was asked "if he was ready tosign and he said yes. 

## * * * He signed it and handed the pen to


### me and I signed it and handed it (thepen) tohim and he handed it toEllen (the other attestingwitness) and she signed it, that


### was it." The testator didn't say anything, he "just looked up at

### me and handed me the pen." Nielson, the other attestingwitness testified that the testator stated "he knew what was init and wanted toget it over with"; that when he finished signing, and after Clark had signed

### and given the pen back to the testator, that "he turned around and handed it (thepen) to me", and "justmotioned that he wanted
me to sign it.

### " Contestant's entire case was based on cross-examination of the two subscribing witnesses, cross-examination of the proponent, and examination of the proponent as an adverse witness. The only other evidence submitted by contestantwas the prior 1967 will of the testator. Contestant's examination of proponent
was to the effect that her fee as public administratrix was set at a higher figure by statute than that which a relative or other ordinary person would receive as executor of the will. See section 91-628,R.C.M. 1947, and section 91-3407,R.C.M. 1947. At the close of contestant'scase, the district court found there was no evidence upon which the jury could find against the will and directed a verdict in favor of the proponent. Thereafter, contestant'smotion for a new trial was denied, and judgment was entered admitting the last will and testament of Jesse Kinyon to probate. This appeal followed. Several issues are raised on appeal which may be summarized
as follows: (1)Error in granting the motion in limine and in denying
a continuancebased on surprise; (2)

### Error in granting a directed verdict. The day before trial a written motion in limine was filed by proponent and served upon opposing coinsel. At the onset of trial, proponent's motion was argued and granted. This motion instructed: I' 

## * 

## * * Contestant, her attorney, and witnesses on her behalf not to mention, not to refer to either directly or indirectly and not to elicit testimony respecting the claimed invalidity of the bequest to the Trustees of the Mayn Cemetery District, or the actions of the Proponent as constituting the practice of law, acting as a

### lawyer or otherwise imputing improper,unethical or illegal conduct in that regard to the Proponent, and absolutely prohibit and exclude such testimony, reference or suggestion." (Emphasisadded.) Contestant then requested a continuance based on surprise arising from the granting of the motion in limine. This request
was denied. Contestant argues that questioning in regard to the matters excluded by the motion is relevant to proving undue influence as to the charitable gift and the execution of the will itself. By granting the motion in limine and refusing to grant
a continuance contestant argued that two-thirds of her case could not be presented. Proponent argues that a motion in limine was necessary to prohibit irrelevant and immaterial testimony which would not tend to prove or disprove any issue in the case but would only improperly influence the jury. He further argues that an objection during trial which was sustained would not remove the prejudicial effect on the jury of such comment. Authority for the granting of a motion in limine rests in the inherentpower of the court to admit or exclude evidence and to take such precautions as are necessary to afford a fair trial for all parties. People v. Jackson, 95 Cal.Rptr. 919, 18 Cal.App.3d 504. Rule 16(6), M.R.Civ.P., permits the court in its discretion to consider 

## "* * * matters asmay aid in the disposition of the action." See 94ALR2d 1087 and 20 

### Am Jur Trials p. 

### 441. (It should be noted here that there was no pretrial conference.) The decision of the district court in excluding questions at trial of the proponent's alleged practice of lawwas conducive to the prevention of irrelevant, immaterial and prejudicial evidence being heard by the jury. The purpose, and effect, of the court's granting the motion in limine was to prevent that whichoccurred inthe case of In theMatter of the Estate of Powers, Mont

# . - , 515 P.2d 368, 30 St.Rep. 917, where many diverse issueswere allowed 

## "* * * todivert the trialcourt from the single issue

## * * 

## *." Contrary towhat was stated incontestant'sbrief, the motion did not prevent the introduction of evidence which might prove that the bequest tothe cemetery districtwas "unnatural"
or that the 

## "* * * undertaker profited by the community cemetery being improved 

## * 

## * 

## *." It was introduction of evidence on the issue of the invalidity of such bequest which was prohibited. It is the 

### lawinMontana that such issues ascharitable bequests and their validity inconforming with the common law "mortmain" and section 91-142, R.C.M. 1947, may only be determined in appropriate proceedings after the 

### willis formally admitted toprobate. 

### In reEstate of Murphy, 57 Mont. 273, 188 P. 146; In re ~obbins' Estate, 41Mont. 39, 108 P. 7. In the present case the district court properly granted saidmotion. We alsohold that the denial of a continuance did not prejudice the contestant of the

### willnor deny her a fair hearing on admission of the willtoprobate. The second issue presented for review iswhether the directed verdict admitting the 

### willtoprobate was proper. In her appeal contestant has made copious references to and lengthy quotations from depositions of the subscribing 

### witnesses and from the transcript of oral testimony given atthe hearing on the motion for summary judgment prior totrial. This Court 

### willonly consider the evidence introduced attrial in reviewing a trial judge's order fordirected verdict, since that
was the only evidence before thejury upon which their verdict could be based. If such trialevidence was not substantial in itself to sustain the contestant's burden of proof, the order

### directing a verdict against the contestantwill be upheld. In the Matter of the Estate of Powers, Mont

# . , 515 P.2d 368, 30 St.Rep. 917; In re Estate of Hall v. Milkovich, 158 Mont. 438, 492 P.2d 1388. This Court in Estate of Maricich, 145 Mont. 146, 400 P.2d 873, and recently reiterated in Hall, set forth five elements to be considered in determining undue influence. In the Hall 

# - case the judgment granting a directed verdict was reversed and
a new trial ordered. That case is clearly distinguishable on its facts. In the present case the fee Minder was to receive as executrix and the charitable bequest was the essence of contestant's case to prove undue influence. We view this as insufficient to set aside the directed verdict. This Court has often stated that mere suspicion that undue influencemay have or could have been brought to bear is not sufficient to justify setting aside a will and that it is not enough to show that a person had an opportunity to exercise such influence. Itmust appear that such influence was actually exercised and that it was pushed to such an extent that the resulting testamentary provisions were not those of the testator's will but those of the parties exercising such influence. Nor does Montana follow the rule that the burden of proof shifts from contestant to proponent upon showing of a confidential relationship or active participation in procuring execution of a will between or by a person who profits thereby. Estate of Cocanougher, 141Mont. 16, 375 P.2d 1009. There was no reason, therefore, in this case to require the proponent to proceed with further proof, and the granting of the motion for a directed verdict was not an abuse of the trial court's discretion. Contestant also questions the execution of the will as not meeting the statutory requirements of section 91-107,R.C.M.1947, inthat the testator did not verbally declare tothe attesting witnesses that thiswas his last

### willand testament. This Court has stated inthe past that the declarations by the testator need not be inthese exact terms, but may be implied from his conduct and the attendant circumstances. Williams v. Swords, 129 Mont. 165, 284 P.2d 674; Estate of Rudd, 140Mont. C.f. 170, 369 P.2d 526;/Estate of Birkeland, Mont

# . I 

# - P.2d 

# --

, 31 St.Rep. 198. There is testimony inthe record by the attesting witnesses that indicates that they knew what they were signing and that testator was alsowell aware. Hisconduct during the execution as 

### set forthabove inthe factswas sufficient to

### meet the statutory requirements. For these reasons the district court's granting a directed verdict and admitting the 

### willtoprobate is affirmed.

Justice 

### i We concur:

Justices

Mr. Justice John Conway Harrison dissenting. I dissent.