### No. 11911 IN

### THE SUPREME COURT OF THE 

### STATE OF MONTANA



### IN

### THE 

### MATTER OF THE 

### ESTATE OF MACK G. 

### HALL, Deceased. JAMES HALL, RUBY 

### CHRISTNER and CLARA RAMER,

VS. 

### Contestants, Plaintiffs,and Appellants, LURA MILKOVICH, 

### Executrix of the Estate of Mack G. 

### Hall, Deceased; and Mac Christner et 

### al., Proponents and Defendants, and Respondents.

Appeal from: District Court of theNinth Judicial District, Honorable R. D. 

### McPhillips, Judge presiding. Counsel of Record: 

### ForAppellants

### : Marra and Wenz, Great Falls, Montana. Joseph R. 

### Marra argued, and Warren Wenz appeared,

Great Falls, Montana. Robert E. 

### Kovacevich, Spokane, Washington. David H. 

### Nelson appeared, Conrad, Montana. For Respondents: Harwood, Galles, Gunderson & 

### Beiswanger, Billings,

Montana. Dale F. Galles argued, Billings, Montana. Hutton, Schiltzand Sheehy, Billings, Montana. John C. 

### Sheehy argued, Billings, Montana. Aronow, Anderson & 

### Beatty, Shelby, Montana. Robert G. 

### Anderson argued, Shelby, Montana. Sherman and Anderson, Conrad, Montana. William B. 

### Sherman appeared, Conrad, Montana.

Submitted: October 

### 26, 1971 Decided:

## JAN

## 24

## 11172

### Mr. JusticeGene B. Daly delivered the Opinion of the Court.

This 

### is a willcontest which came on for trial to the court sittingwith a jury in the ninthjudicial district, county of Pondera. After the close of the plaintiff-contestants

## ' case inchief, the court granted a directed verdict in favor of defendant-proponents. From thatjudgment, the plaintiff-contestants app.ea1. Mack G. Hall died of cancer atthe age of 81on August 

### 3, 1966. He had farmed in the vicinity of Pondera County since he was a young man. 

### His firstwife died about 1928, leaving him with four small children toraise. His son James, born in 1923, remained on the farm and in lateryears farmed on shares with his father. Ruby, his oldest child born 1919, helped raise the younger children on the farm. She married thehired man, was divorced and remarried. Her children, the Christner children,

areproponents of thewillin this contest. Clara, born in 1926, left the farm inher teens. Dorothy, now deceased, left two children, Dennis and Delane McKinney, who were adopted and raised by Mack Hall and his second wife, Ada Hall. They arenow known as Dennis and Delane Hall (grandchildren and adopted children of the deceased), and arealsoproponents of thewill. Ada Hall, the survivingwidow, knew the deceased in 1909 but married a Mr. Crist and has six childrenby him. In 1946, the deceased, Mack Hall, visited the Crists in Illinois. Ada Crist came toMontana tovisitMack Hall in the summer of 1947. She divorced her husband in October 1947, and returned toMontana and married Mack Hall inDecember 1947.There is a long history of animosity between Ada Hall and the natural children of Mack Hall, beginning with their marriage on December 7, 1947. In the preceding 20 years before this marriage Mack Hall had lived alone and had a manifest love for his children. However, following the marriage in 1947, the family relationship was soured by the fights, disagreements, and discords between Ada and his children. One by one the remaining children moved away and became infrequent visitors. Nevertheless, as evidenced by Mack 

### all's firstwill of 1952, his intended testamentary dispositionwas a natural one embracing his natural childrenand his second wife, Ada. In 1963, Mack Hall was beset by thebeginning of a long series of illnesses including termina

### 1cancer, which was diagnosed

as early as 1964. In 1964he was already a very sickman and his illness resulted inhospitalization thirteen times. This

was Mack Hall's condition the time four willswere drawn in short succession. Three were drawn inNovember 1965, and the last willon May 17, 1966; allof which disinherit his natural children. The entire thrust of this willcontest 

### is centered upon the lastnine months of Mack 

### all's life, during which time thesewillswere drawn. Instrumental during this ninemonth period is the close association and influence exercised upon Mack Hall by one Mark Milkovich, a mutual funds salesman, who sold Mack Hall $64,000 worth of mutual funds between December 14, 1965 and May 13, 1966. Mark Milkovich admits he sold the mutual funds toMack Hall in trust forAda Hall with fullknowledge that Mack Hall was dying of termina1cancer.Concurrent with these salesMark Milkovich was named executor and co-trustee in the three wills executed inNovember 1965; ~ilkovich's wife was named as executrix and co-trustee in the lastwilldated May 17, 1966. Mark Milkovich is charged, along withAda Hall, with undue influence and fraud resulting inrich present and future rewards forboth. Ada 

### all's finan~ial position grew by about $64,000, with Milkovich receiving substantial commissions. In addition tothese sums, in the immediate futureMilkovich orhis wife would receive the substantial executor's fee under the

### will of Mack Hall, while alsoproviding themselves with annual fees

as co-trustees. Atissue in the present case 

### is the legality and effect of the lastwilland testament of Mack G. Hall, which disinherits the testator's three survivingnatural children under two separate trusts which areprovided asa marital deduction trust and a residuary trust. The value of the estate 

### is between $450,000 and $600,000. Under the lastwillof May 17, 1966, Lura Milkovich 

### is appointed as executrix of the willwithLura Milkovich and the Pondera Bank of Montana, Conrad, Montana named as trustees. Under the marital deduction trust, one-half of decedent's estate including property which passed tothe wife outside the will, would be considered part of the trust for the benefit of the wifewith the power of appointment inher. Out of the income from the property held in the marital deduction trust, the trustees

aretopay tothe wife such income inquarterly installments, so long as she shall live. The corpus of the trustwould remain in the trustees until the death of the wife. Upon such event, the trustees deliver the corpus of the estate to such persons as sheby power of appointment might provide inher last

### will; but if she made no provision inher lastwill, upon her death the trustees would pay over and distribute the corpus of themarital deduction trust toMack Hall's adopted children, Dennis Ray Hall and Delane Hall, shareand sharealike. It 

### is provided that such adopted children shallnot sellor encumber thewillproperty during their lifetime. Under the terms of the residuary trust of the lastwill, the residue of the estate is placed in trustwith the same cotrustees, Lura Milkovich and Pondera Bank of Montana, tohold the

same and topay therefrom allthe rents, income and profits in eleven equal shares tothe eleven grandchildren of the decedent, including the grandchildren he adopted on November 8, 1965. The residuary trust should continue until January 

### 1, 1974, when it terminates absolutely, and atthat time the remaining residuary trust property 

### is tobe setover toDennis Ray Hall and Delane Harry Hall, the adopted children otthe decedent, inequal shares. In addition, tilt?residuary trust 

### is subject totwo express stipulations of the decedent, first that the farm home near Brady shallbe subject toa lifeuse by thewidow Ada Hall; secondly, that the trustees of the residuary trustmay sell, dispose, or mortgage any or allof the trust property during the lifeof the trust attheir discretion, if it 

### is in the best interest of the trust estate. The trustees forboth trusts areLura Milkovich and the Pondera Bank of Montana. Testator Mack Hall's lastwilland testament executed

on May 17, 1966, was admitted toprobate by the districtcourt

on January 9, 1967, appointing Lura Milkovich, wife of Mark Milkovich, executrix, as provided in the will. On June 8, 1967, James Hall and Ruby Christner, two of decedent's three surviving children,filed a petition for revocation of probate, reciting undue influence had been exercised upon decedent preceding his deathy along with the debilitating effects on his testamentary capacity due to sedation, terminal disease, and advanced age. In a separate petition for revocation on the same date, Clara Ramer, decedent's third surviving child, joined in seeking revocation of admission of the

### willtoprobate. On September 7, 1967, Ruby Christner petitioned the district court toappoint an attorney torepresent her fivenatural children, Mac Christner, Lois Christner, Richard Christner, James Christner and Robert Christner, grandchildren of Mack G. Hall and named devisees and legatees under the May 17, 1966will, which petitioners were preparing tocontest. On October 30, 1967, by way of stipulationamong the parties through their respective attorneys

## , the district court ordered that authorization be given to the attorneys for examination and copying of allor any part of the records of Mack G. Hall intheMontana Deaconess Hospital, Great Falls, Montana, and St. ~ary's Hospital of Conrad, Montana, for the period from January 1, 1962 todate of decedent's death. On April 10, 1970, petitioners James Hall and Ruby Christner filed an amended petition for revocation of probate, followed by

a similaramended petitionby Clara Ramer on April 20, 1970, joining the issue. In substance the petitions were identical and repeated claims of undue influence and lack of testamentary capacity due to sedation, weakened physical condition, weakened menta1 condition and elaborated upon the undue influence, fraud and deceid practiced by Ada Hall, widow, assistedby Mark Milkovich, themutual fund salesman.The issues raised by the amended petitions filedby contestants came on for trialbefore the court and jury on April 24, 1970. After the close of plaintiff-contestants' case in chief, on motion otthe deiendant-proponents, the court directed

a verdict for proponents dismissing contestants

# ' petitions, whereupon this appeal was taken.
I Appellants' issues on review are: 

### 1. Whether hospital records of the decedent should have been admitted into evidence inan attempt to show that decedent lacked testamentary capacity atthe time of executing his last will. 2. Whether plaintifts established a prima facie case of undue influence, fraud, or lack of testamentary capacity. 

### 3. Whether the tria

### 1court erroneously granted defendants

a directed verdict or ifany motion was granted, plaintiffs' motion for a directed verdict shbuld have been granted. ~ppellants 

## ' position 

### is that Mack 

### all's primary driving forcewas tobuild an estateand keep it together as a single manageable economic unit, aswas demonstrated in the firstwill drawn in 1952, when hewas well and 67 years of age. That testimony atthe trialreflected his desirenot tohave his land sold

ormortgaged. That afterMark Milkovich, themutual fund salesman, became associated in estateplanning, together withAda Hall. during the lastmonths of deceased's terminal illness, therewas
a steady erosion of the estate into theirhands; allnatural children were disinherited by a series of four willsdrawn in the nine month period from November 1965, toMay 1966, together with the saleto the deceased, in trust torAda Hall, of $64,000 inmutual funds. That Mark Milkovich was actively instrumentalinthe making of the last four willsand was named executor and co-trustee in the threewillsdrawn on November 

### 3, 8,and 

### 22, 1965. That thewilldrawn November 

### 22, 1965, contained a controversial power of appointment inAda Hall, the widow. This we willdiscuss later in this opinion. That the lastwilldrawn May 17, 1966, and admitted to probate was drawn atMark ~ilkovich's request because he wanted to substitute his wife as executrix and co-trustee sincehe had been informed ata company meeting that his company could be sued ifhe remained the co-trustee and executor. Howev@r,this last willcontained a new power, not in the previous wills, granting the co-trustees the power to selland encumber the land. Appellants produced evidence that Ada Hall promised decedent shewould not exercise the power of appointment contained in the marital deduction trust. They contend Mark Hall executed his willin reliance on this promise. Attrial,Ada Hall testified she could not remember making such a promise, but rather that Mack wanted her tohave the estate. The importance of the power of appointment 

### is that if itwas not exercised, then the corpus would go into the residuary trust and eventually to two of decedent's natura1grandchildren. On the other hand, ifAda Hall exercised the power, then she could effectively divert the trust corpus toanyone she wished. Here, appellants contend that she intended to exercise the power in favor of children of her previous marriage. Further,appellants contend that the promise of Ada Hall not toexercise the power
was a material inducement tothe executing of the willby decedent. Appellants contend decedent had been ill since 1963; had been hospitalized numerous times; had difficulty remembering current events but could recollect the past (things that happened years ago); had twice sethis bed on fire; and had asked about nonexisting events. Further, that had the hospital records been 

### -7-admitted into evidence they would show or prove decedent was of weakened mind and body and under continuous sedation or medication at the time of the execution of the lastwillin the Conrad hospital. ~espondents' argument generally is directed atthe execution of the lastwill. They contend the directed verdict was proper because appellants failed to establish a prima facie case of fraud, undue influence, or lack of testamentary capacity. Further that appellants had theburden of establishing the above by substantial evidence, which they failed to do for these reasons: A. There 

### is no evidence, in the record or otherwise, that the decedent Mack G. Hall was incompetent tomake a will

on May 17, 1966, the date of his lastwill. B. There is no evidence, in the record or otherwise, that atthe time decedent Mack G. Hall made his lastwill, on May 17, 1966, that he was acting under the undue influence of any person whomsoever. C. There isno evidence, in the record or otherwise, that the lastwillof the decedent Mack G. Hall, dated May 17, 1966, was a result of any fraud upon him by any person whomsoever. D. The trialcourt was correct in directing a verdict sustaining the lastwillof the decedent Mack G. Hall, dated May 

### 17, 1966. Concerning the trusts, respondents contend that this

was the device selected by deceased because Dennis and Delane

were minors and he did not want the land sold or mortgaged,and he wanted them tohave a college education and the land. The multiple willswere explained as a device tomake more wills for his children tocontest, knowing a contest would ensue. The attorneywho drew the wills testifiedAda Hall promised not toexercise the power of appointment and the estatewould go to Dennis and Delane, just as decedent wanted. He further testified forher Ada Hall had him draw a will/that did not exercise the power. Thus, the respondents argue that the promise, ifan inducement, is fully performed and not fraud. They further argue there 

### is

an additionalburden that must be met by appellants atnasmuch a as the willonce admitted is presumed valid. Here, we point out this Court has before it for its determination only one issue and that 

### is todetermine from the record if the cause was properly withdrawn from the jury. In so doing we must recognize that the law does not favor directed verdicts and the evidence thereforewillbe viewed in the light most favorable toappellants, as having proved what it tends to prove. Section 93-5205, R.C.M. 1947, provides: "Directed Verdict--when. Td'here, upon the trial of an issueby a jury, the case presents only questions of law, thejudge may direct thejury torender a verdict in favor of the party entitled thereto.II Rule 50, Montana Rules of Civil Procedure, provides: "Motion for a directed verdict and forjudgment notwithstanding the verdict.

I'(a) MOTION FOR DIRECTED VERDICT--WHEN 

### MADE, EFFECT. A party who moves for a directed verdict atthe close of the evidence offered by an opponent may oifer evidence in the event that the motion isnot granted, without having reserved the right so todo and to the same extent as if the motion had not been made. A motion for a directed verdict which 

### is not granted is not a waiver of trialby jury even though allparties tothe action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order ot the court granting a motion for a directed verdict is effectivewithout any assent or thejury. II The long recognized case of Johnson v. Chicago, M.& St. P.R.Co., 71Mont. 390, 394, 230 P. 52, stated the framework forinterpretation: "In the interpretation of that statute, this court has announced the following rules: "(1) Upon a motion for a directed verdict in favor of the defendant, the evidence introduced by the plaintiff willbe considered in the light most favorable tohim and as proving whatever it tends to prove. "(2) A cause should never be withdrawn from the jury, unless the conclusion from the facts follows necessarily, as a matter of law, that a recovery cannot be had upon any view which can be drawn reasonably from the factswhich the evidence tends to establish. "(3) In reviewing an order directing a verdict for the defendant, this court willconsider only the evidence introduced by the plaintiff, and if that evidence, when viewed in themost favorable light, tends to establish the case made by the plaintiff's pleadings, the order willbe reversed. (Citing cases)

1 "The term 'plaintiff's evidence, as employed in the foregoing rules, excludes merely a bare scintilla, but includes every fair inference which may be drawn from the facts proved and, as well, any evidence introduced by the defendant which tends to support the plaintiff's case.'' The law has become too well settled sinceJohnson in 1924, to require the restating of the numerous citations affirming the doctrine. This was recognized by the Court in the most recent decision Shields v. Murray, Mont

# . , 481 P.2d 680, 682, 28 St. Rep. 211, where the Court in reversing the trialcourt's order withdrawing a case from the jury, again affirming this doctrine, stated: "This Court, on a number of occasions, has stated that cases and issues should not be withdrawn from a jury unless reasonable and fair-minded men could reach only one conclusion from the facts. (Citing cases). Genuine questions of fact should be submitted to thejury. (Citing case). A corollary to the above rule is that substantial evidencejustifying submission of an issue toa jury existswhen reasonable men might reach different conclusions from the facts. Parini v. Lanch, 148Mont. 188, 418 P.2d 861." (Emphasis supplied)

# .While this case presents a contest involving the last willand testament of Mack Hall, this 

### willcannot stand alone inview of the allegations of undue influence, fraud, and lack ot testamentary capacity. From the testimony and exhibits introduced intoevidence atthe trial, we find there were four wills, three drawn within a one month period and allfour within

a sixmonth period, allof which contained marked variations in testamentary disposition and effect upon his landed estate. These successive wills ina short period'of time prior to the death of the 81 year old testator with a long history of declining mental and physical health due toa painiul terminal cancer, bear close examination. Section 13-311, R.C.M. 1947, defines undue influence:

IIUndue influence consists: "1. In theuse, by one inwhom a confidence isreposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfairadvantage over him; "2. In taking an unfair advantage oL another's weakness:. ormind; or, "3. In taking a grossly oppressive and unfair advantage of another's necessities or distress.II Respondents relyheavily on language this Court used in Estate of Cocanougher, 141Mont. 16, 25, 375 P.2d 1009, when the Court quoted from 

### In re ~egarty's Estate, 46 Nev. 321, 212 P.

tl 1Courts have neither the right nor power toreframe the wills oidecedents, nor to overthrow the expressed intent therein contained, in the absence of direct and substantial proof sufficient tobring the case within the well-established rules of law regarding undue '11 influence. This Court 

### ismindful of the dignity that it has reposed ina decedent's willand r e a f f i r m t h i s doctrine. But we mustrecognize that the Court had C~canougher before it on appeal twice aiterjury verdicts finding undue influence and properly found that the evidence revealed none. Therefore that doctrine has no application tothe issuebefore us in the instant case. We willnot address ourselves to the ultimate issue concerning the validity of testator's will, but willonly consider the case law rso define the areas of relevancy that may be considered to determine if there remain issues raised upon which reasonable men could disagree. This Court in Estate of Maricich, 145Mont. 146, 161, 400 P.2d 873, said:

I IThe law in the cases concerning undue influence places upon the contestant theburden of proof in showing substantial evidence oiundue influence. In determining this issue on undue influence we may consider: "(1) Confidential relationship of the person attempting to influence the testator; "(2) The physical condition of the testator as it affects his ability towithstand the influence; "(3) The mental condition of the testator as it affects his ability towithstand influence; "(4) The unnaturalness of the disposition as it relates to showing an unbalanced mind or a mind easily susceptible toundue influence; and "(5) The demands and importunities as they may affect particular t e s t a t o r taking into consideration the time, the place, and allthe surrounding circumstances.I I Here, inview of the evidence, the successivewills in testator's declining days, and the dismemberment of testator's estate under those wills, this Court is compelled to seek a factual determination toa series of inconsistencies

# . myopic to fail tocorrelate the declining physica1 stateof the 81 year old decedent inhis last sixmonths of life with the sudden rash of wills, diverse in their patterns as com-pared to testator's 

### willof 1952, and erosive in their effect upon testator's estate. These concurrent pattern~~~of even.ts raise grave questions of fact upon which a lawful determination has no place, absent a jury determination. Further, attrial testimony was given that testator's mind reflected to past events in his lifewhile his grasp of present events slipped and wandered. As the record of medical treatment was excluded at trialand the case was not presented toa jury, the critical factual determination of testator's comprehension, awareness, and concentration was not factually determined. Reflecting upon the records of medication, indeed, on the last day preparatory to signing the last 

### willtestator was receiving regular injections of codeine, the effect of which could be material. The totality of the testimony and evidence attrialgoes beyond the mere suspicion of undue influence, fraud, and incapacity and substantially bears upon the issues pleaded in the petitions for revocation of will. There was not only a mere opportunity to influence, but active procurement of counsel in

, itspreparation. The provisions alone, inview of testator's intent, are inquestion as tohis concepts and relationships during this period. Standing alone, the testimony of witnesses 

### is enough C0 the present sufficient evidence as to factual issues which necessarily should be placed before a jury, as toboth testator's mental and physical condition. Reference to the materiality of the changes in wills during testator's last days equally raises questions of fact which are directly in issue inview of the allegations of contestants of fraud and undue influence practiced upon testator during the period.What remains ultimately as a question of fact is what ' -' _ has been described inMurphy v. Nett, 

### 47 Mont. 38, 52, -132 P. 451,

as:

11In a case involving undue influence the question is notwhat effect the supposed influencewould have had upon an ordinarily strong and intelligent person, but 

### its effect upon the person on whom it was exerted, taking into consideration the time, the place and allthe surrounding circumstances. I' Additionally, it should be noted that a significantbody of contestants

## ' offered evidence was ruled inadmissible atthe trialand it 

### is to this excluded testimony that we now direct

our attention. As is clear from point (2) of the test stated inMaricich, the physical condition of the testator as it a£- fected his ability towithstand influence 

### is an issue for factual determination. However, as appellants point out in argument, allhospital records of Mack Hall were ruled inadmissible atthe trial. The transcript reveals the partiesstipulated atthe pretrial conference that foundation would not be required toadmit the hospital records into evidence under theUniform Business Records as Evidence Act, Chapter 801, Title 

### 93, R.C.M. 1947. However, attrialan objection was made by defendants to the admission of these records on the ground that it had not been shown that these records were relevant. After argument their admission was denied. It must be clear from our discussion that this Court considers the undeniable factual content of these records, as they bear on testator's physical and mental condition, relevant tothe ultimate issues of this case. It does injustice to the rational process of weighing the facts todeny admission of those facts upon which reasoned judgment must be based.There isno pretrial order in the district court file. A pretrial order would or should reflect precisely what agreements were made between the parties and the court in reference tothese exhibits. If these exhibits were not relevant in total,

or if interpretation of these records requires expert testimony forqualified analysis, or ifsome objections were preserved beyond foundation, the pretrial process should have resolved the problem., The record attrial indicates it could have been

a misunderstanding but lacking the factual support of a pretrial order, we willlimitour observations towhat has been said for guidance when the matter is processed for retrial. Accordingly, the judgment granting a directed verdict is reversed and a new trial ordered.

Associate Justice