No. 12632 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

19 74 

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. Justice Frank I. Haswell delivered the Opinion of the Court. 

This is an 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 will of 

Jesse Kinyon to probate. 

The testator, Jesse Kinyon, by will dated January 18, 1971, 

made bequests of $1,000 each to three nieces (including contestant 

Eunice Wallin), $2,000 to a cousin,King Walters, and bequeathed 

the remainder of his estate to the Mayn Cemetery District. The 

will indicates the testator's reasons for leaving the remainder 

of his estate to the cemetery district was to make possible the 

fencing, restoring and maintaining the Fort Logan burial ground 

at which his parents were buried, and to use the remainder to 

improve the Mayn cemetery at which the testator wished to be 

buried . 

The will was drafted by Jennie L. Minder, the public administratrix of Meagher County, with the aid of John V. Potter, an 

attorney who employed her as his secretary. She was called by 

Kenneth Twichel, the clerk of court, to help the testator draw up 

a will. By the terms of the will she was appointed executrix. 

Testator died January 26, 1971, at age 79, leaving approximately $30,000 in his estate. At the time of his death, he was 

residing in a rest home in Meagher County. He left surviving him 

as his nearest relatives eight nieces and nephews. 

The petition for probate of this will was contested by 

the testator's niece, Eunice Wallin, appellant herein. Under a 

former will dated January 17, 1967, testator left his entire 

estate to her. 

After the district court's denial of proponent's motion 

for summary judgment, the matter went to trial before a jury 

April 4, 1973, on issues of (1) proper attestation of the will, 

and (2) undue influence. At the beginning of the jury trial, 
the district court granted proponent's motion in limine to 

exclude testimony regarding the claimed invalidity of the charitable bequest to the Mayn Cemetery District, and the alleged 

actions of the executrix in drafting the will as constituting 

the practice of law without 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 as to her qualifications and willingness to act as executrix. 

Both subscribing witnesses to the will acknowledged that 

prior to signing it, each had taken notice of the attestation 

clause of the will appearing above their signatures and knew the 

purpose for which their signature was requested. 

Proponent testified that the testator had read the first 

draft of the will himself, that after some minor changes had been 

made at his request, she read the final draft to him immediately 

prior to his signing. 

Attesting witness Clark testified that when she entered 

the testator's room prior to witnessing the will, the testator 

was "sitting in a chair with a little table in front of him"; 

that the proponent asked him "if he understood what had been 

read to him, and if he wanted her to re-read it and he said no." 

She further testified that testator was asked "if he was ready 

to sign and he said yes. * * * He signed it and handed the pen to 

me and I signed it and handed it (the pen) to him and he handed 

it to Ellen (the other attesting witness) 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 attesting witness testified that the 

testator stated "he knew what was in it and wanted to get 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 (the pen) to me", and "just motioned 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 contestant was 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's case, 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's motion 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 continuance based 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." (Emphasis added.) 

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 inherent power 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 as may aid in the 

disposition of the action." See 94 ALR2d 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 law was 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 which 
occurred in the case of In the Matter of the Estate of Powers, 

- Mont . , 515 P.2d 368, 30 St.Rep. 917, where many diverse 

issues were allowed "* * * to divert the trial court from the 

single issue * * *." 

Contrary to what was stated in contestant's brief, the 

motion did not prevent the introduction of evidence which might 

prove that the bequest to the cemetery district was "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 law in Montana that such issues as charitable bequests 

and their validity in conforming with the common law "mortmain" 

and section 91-142, R.C.M. 1947, may only be determined in appropriate proceedings after the will is formally admitted to probate. 

In re Estate of Murphy, 57 Mont. 273, 188 P. 146; In re ~obbins' 

Estate, 41 Mont. 39, 108 P. 7. 

In the present case the district court properly granted 

said motion. We also hold that the denial of a continuance did 

not prejudice the contestant of the will nor deny her a fair 

hearing on admission of the will to probate. 

The second issue presented for review is whether the directed verdict admitting the will to probate 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 at the 

hearing on the motion for summary judgment prior to trial. This 

Court will only consider the evidence introduced at trial in 

reviewing a trial judge's order for directed verdict, since that 

was the only evidence before the jury upon which their verdict 

could be based. If such trial evidence was not substantial in 

itself to sustain the contestant's burden of proof, the order 
directing a verdict against the contestant will 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 influence may 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. It must 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, 141 Mont. 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, in that the testator did not verbally declare to the 

attesting witnesses that this was his last will and testament. 

This Court has stated in the past that the declarations by the 

testator need not be in these 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, 140 Mont. 

C.f. 

170, 369 P.2d 526;/Estate of Birkeland, - Mont . -- I P.2d 

, 31 St.Rep. 198. There is testimony in the record by the 

attesting witnesses that indicates that they knew what they were 

signing and that testator was also well aware. His conduct during the execution as set forth above in the facts was sufficient 

to meet the statutory requirements. 

For these reasons the district court's granting a directed 

verdict and admitting the will to probate is affirmed. 

Justice 

i We concur: 

Justices 

Mr. Justice John Conway Harrison dissenting. 

I dissent.