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 the Ninth Judicial District, 

Honorable R. D. McPhillips, Judge presiding. 

Counsel of Record : 

For Appellants : 

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, Schiltz and 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 2 4 11172 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This is a will contest which came on for trial to the 

court sitting with a jury in the ninth judicial district, county 

of Pondera. After the close of the plaintiff-contestants ' case 

in chief, the court granted a directed verdict in favor of 

defendant-proponents. From that judgment, the plaintiff-contestants app.ea1. 

Mack G. Hall died of cancer at the age of 81 on August 

3, 1966. He had farmed in the vicinity of Pondera County since 

he was a young man. His first wife died about 1928, leaving him 

with four small children to raise. His son James, born in 1923, 

remained on the farm and in later years farmed on shares with his 

father. Ruby, his oldest child born 1919, helped raise the 

younger children on the farm. She married the hired man, was 

divorced and remarried. Her children, the Christner children, 

are proponents of the will in this contest. Clara, born in 

1926, left the farm in her 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 are now 

known as Dennis and Delane Hall (grandchildren and adopted children 

of the deceased), and are also proponents of the will. 

Ada Hall, the surviving widow, knew the deceased in 1909 

but married a Mr. Crist and has six children by him. In 1946, 

the deceased, Mack Hall, visited the Crists in Illinois. Ada 

Crist came to Montana to visit Mack Hall in the summer of 1947. 

She divorced her husband in October 1947, and returned to Montana 

and married Mack Hall in December 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 first will 

of 1952, his intended testamentary disposition was a natural one 

embracing his natural children and his second wife, Ada. 

In 1963, Mack Hall was beset by the beginning of a long 

series of illnesses including termina 1 cancer, which was diagnosed 

as early as 1964. In 1964 he was already a very sick man and 

his illness resulted in hospitalization thirteen times. This 

was Mack Hall's condition the time four wills were drawn 

in short succession. Three were drawn in November 1965, and the 

last will on May 17, 1966; all of which disinherit his natural 

children. The entire thrust of this will contest is centered 

upon the last nine months of Mack all's life, during which time 

these wills were drawn. 

Instrumental during this nine month 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 to Mack Hall in 

trust for Ada Hall with full knowledge that Mack Hall was dying 

of termina 1 cancer. 
Concurrent with these sales Mark Milkovich was named 

executor and co-trustee in the three wills executed in November 

1965; ~ilkovich's wife was named as executrix and co-trustee in 

the last will dated May 17, 1966. 

Mark Milkovich is charged, along with Ada Hall, with 

undue influence and fraud resulting in rich present and future 

rewards for both. Ada all's finan~ial position grew by about 

$64,000, with Milkovich receiving substantial commissions. In 

addition to these sums, in the immediate future Milkovich or his 

wife would receive the substantial executor's fee under the will 

of Mack Hall, while also providing themselves with annual fees 

as co-trustees. 

At issue in the present case is the legality and effect 

of the last will and testament of Mack G. Hall, which disinherits 

the testa tor's three surviving natural children under two separate 

trusts which are provided as a marital deduction trust and a 

residuary trust. The value of the estate is between $450,000 

and $600,000. Under the last will of May 17, 1966, Lura Milkovich is appointed as executrix of the will with Lura 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 to the wife outside the 

will, would be considered part of the trust for the benefit of the 

wife with the power of appointment in her. Out of the income from 

the property held in the marital deduction trust, the trustees 

are to pay to the wife such income in quarterly installments, so 

long as she shall live. The corpus of the trust would 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 she 
by power of appointment might provide in her last will; but if she 

made no provision in her last will, upon her death the trustees 

would pay over and distribute the corpus of the marital deduction 

trust to Mack Hall's adopted children, Dennis Ray Hall and Delane 

Hall, share and share alike. It is provided that such adopted 

children shall not sell or encumber the will property during their 

lifetime. 

Under the terms of the residuary trust of the last will, 

the residue of the estate is placed in trust with the same cotrustees, Lura Milkovich and Pondera Bank of Montana, to hold the 

same and to pay therefrom all the rents, income and profits in 

eleven equal shares to the 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 at that time the remaining residuary 

trust property is to be set over to Dennis Ray Hall and Delane 

Harry Hall, the adopted children ot the decedent, in equal shares. 

In addition, tilt? residuary trust is subject to two express stipulations of the decedent, first that the farm home near Brady 

shall be subject to a life use by the widow Ada Hall; secondly, 

that the trustees of the residuary trust may sell, dispose, or 

mortgage any or all of the trust property during the life of the 

trust at their discretion, if it is in the best interest of the 

trust estate. The trustees for both trusts are Lura Milkovich 

and the Pondera Bank of Montana. 

Testator Mack Hall's last will and testament executed 

on May 17, 1966, was admitted to probate by the district court 

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 dea thy 

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 will to probate. On September 7, 

1967, Ruby Christner petitioned the district court to appoint an 

attorney to represent her five natural children, Mac Christner, 

Lois Christner, Richard Chris tner, James Chris tner and Robert 

Christner, grandchildren of Mack G. Hall and named devisees and 

legatees under the May 17, 1966 will, which petitioners were preparing to contest. 

On October 30, 1967, by way of stipulation among the 

parties through their respective attorneys , the district court 

ordered that authorization be given to the attorneys for examination and copying of all or any part of the records of Mack G. Hall 

in the Montana Deaconess Hospital, Great Falls, Montana, and St. 

~ary's Hospital of Conrad, Montana, for the period from January 

1, 1962 to date 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 similar amended petition by 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 menta 1 

condition and elaborated upon the undue influence, fraud and 

deceid practiced by Ada Hall, widow, assisted by Mark Milkovich, 

the mutual fund salesman. 
The issues raised by the amended petitions filed by 

contestants came on for trial before the court and jury on April 

24, 1970. After the close of plaintiff-contestants' case in 

chief, on motion ot the 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 in an attempt to show that decedent 

lacked testamentary capacity at the 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 1 court erroneously granted defendants 

a directed verdict or if any motion was granted, plaintiffs' motion 

for a directed verdict shbuld have been granted. 

~ppellants ' position is that Mack all's primary driving 

force was to build an estate and keep it together as a single 

manageable economic unit, as was demonstrated in the first will 

drawn in 1952, when he was well and 67 years of age. That testimony at the trial reflected his desire not to have his land sold 

or mortgaged. That after Mark Milkovich, the mutual fund salesman, 

became associated in estate planning, together with Ada Hall. 

during the last months of deceased's terminal illness, there was 

a steady erosion of the estate into their hands; all natural 

children were disinherited by a series of four wills drawn in 

the nine month period from November 1965, to May 1966, together 

with the sale to the deceased, in trust tor Ada Hall, of $64,000 

in mutual funds. That Mark Milkovich was actively instrumental 
in the making of the last four wills and was named executor and 

co-trustee in the three wills drawn on November 3, 8,and 22, 1965. 

That the will drawn November 22, 1965, contained a controversial 

power of appointment in Ada Hall, the widow. This we will discuss 

later in this opinion. 

That the last will drawn May 17, 1966, and admitted to 

probate was drawn at Mark ~ilkovich's request because he wanted 

to substitute his wife as executrix and co-trustee since he had 

been informed at a company meeting that his company could be sued 

if he remained the co-trustee and executor. Howev@r, this last 

will contained a new power, not in the previous wills, granting 

the co-trustees the power to sell and encumber the land. 

Appellants produced evidence that Ada Hall promised decedent she would not exercise the power of appointment contained 

in the marital deduction trust. They contend Mark Hall executed 

his will in reliance on this promise. At trial, Ada Hall 

testified she could not remember making such a promise, but 

rather that Mack wanted her to have the estate. 

The importance of the power of appointment is that if 

it was not exercised, then the corpus would go into the residuary 

trust and eventually to two of decedent's na tura 1 grandchildren. 

On the other hand, if Ada Hall exercised the power, then she could 

effectively divert the trust corpus to anyone 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 to exercise the power 

was a material inducement to the executing of the will by 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 set his 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 last will in the Conrad hospital. 

~espondents' argument generally is directed at the execution of the last will. 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 the burden 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 to make a will 

on May 17, 1966, the date of his last will. 

B. There is no evidence, in the record or otherwise, 

that at the time decedent Mack G. Hall made his last will, on 

May 17, 1966, that he was acting under the undue influence of 

any person whomsoever. 

C. There is no evidence, in the record or otherwise, 

that the last will of the decedent Mack G. Hall, dated May 17, 

1966, was a result of any fraud upon him by any person whomsoever. 

D. The trial court was correct in directing a verdict 

sustaining the last will of 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 to have a college education and the land. The 

multiple wills were explained as a device to make more wills for 

his children to contest, knowing a contest would ensue. The 

attorney who drew the wills testified Ada Hall promised not to 
exercise the power of appointment and the estate would go to 

Dennis and Delane, just as decedent wanted. He further testified 

for her 

Ada Hall had him draw a will/that did not exercise the power. 

Thus, the respondents argue that the promise, if an inducement, 

is fully performed and not fraud. They further argue there is 

an additional burden that must be met by appellants atnasmuch a 

as the will once admitted is presumed valid. 

Here, we point out this Court has before it for its 

determination only one issue and that is to determine 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 therefore will be viewed in the light 

most favorable to appellants, 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 issue by a jury, the case presents only questions 

of law, the judge may direct the jury to render a 

verdict in favor of the party entitled thereto. I I 

Rule 50, Montana Rules of Civil Procedure, provides: 

"Motion for a directed verdict and for judgment 

notwithstanding the verdict. 

I' (a) MOTION FOR DIRECTED VERDICT- -WHEN MADE, EFFECT. 

A party who moves for a directed verdict at the close 

of the evidence offered by an opponent may oifer 

evidence in the event that the motion is not granted, 

without having reserved the right so to do 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 trial by jury even though all parties 

to the 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 effective without 

any assent or the jury. I I 

The long recognized case of Johnson v. Chicago, M.& St. 

P.R.Co., 71 Mont. 390, 394, 230 P. 52, stated the framework for 
interpretation: 

"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 will be considered in the light most 

favorable to him 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 facts which the evidence tends to establish. 

"(3) In reviewing an order directing a verdict 

for the defendant, this court will consider only the 

evidence introduced by the plaintiff, and if that 

evidence, when viewed in the most favorable light, 

tends to establish the case made by the plaintiff's 

pleadings, the order will be 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 since Johnson 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 trial court'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 the jury. (Citing case). A corollary to 

the above rule is that substantial evidence justifying 

submission of an issue to a jury exists when reasonable 

men might reach different conclusions from the facts. 

Parini v. Lanch, 148 Mont. 188, 418 P.2d 861." 

(Emphasis supplied) . 
While this case presents a contest involving the last 

will and testament of Mack Hall, this will cannot stand alone 

in view of the allegations of undue influence, fraud, and lack 

ot testamentary capacity. From the testimony and exhibits 

introduced into evidence at the trial, we find there were four 

wills, three drawn within a one month period and all four within 

a six month period, all of which contained marked variations in 

testamentary disposition and effect upon his landed estate. 

These successive wills in a 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 to a painiul terminal cancer, bear 

close examination. 

Section 13-311, R.C.M. 1947, defines undue influence: 

I I Undue influence cons is ts : 

"1. In the use, by one in whom a confidence 

is reposed by another, or who holds a real or 

apparent authority over him, of such confidence 

or authority for the purpose of obtaining an unfair advantage over him; 

"2. In taking an unfair advantage oL another's 

weakness:. or mind; or, 

"3. In taking a grossly oppressive and unfair 

advantage of another's necessities or distress. I I 

Respondents rely heavily on language this Court used in 

Estate of Cocanougher, 141 Mont. 16, 25, 375 P.2d 1009, when the 

Court quoted from In re ~egarty's Estate, 46 Nev. 321, 212 P. 

tl 1 Courts have neither the right nor power to reframe 

the wills oi decedents, nor to overthrow the expressed 

intent therein contained, in the absence of direct and 

substantial proof sufficient to bring the case within 

the well-established rules of law regarding undue '11 influence. 

This Court is mindful of the dignity that it has reposed 

in a decedent's will and r e a f f i r m t h i s doctrine. But we must 
recognize that the Court had C~canougher before it on appeal 

twice aiter jury verdicts finding undue influence and properly 

found that the evidence revealed none. Therefore that doctrine 

has no application to the issue before us in the instant case. 

We will not address ourselves to the ultimate issue 

concerning the validity of testator's will, but will only 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, 145 Mont. 146, 161, 

400 P.2d 873, said: 

I I The law in the cases concerning undue influence 

places upon the contestant the burden of proof in 

showing substantial evidence oi undue 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 to withstand the influence; 

"(3) The mental condition of the testator as 

it affects his ability to withstand influence; 

"(4) The unnaturalness of the disposition as 

it relates to showing an unbalanced mind or a mind 

easily susceptible to undue 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 all the surrounding 

circumstances. I I 

Here, in view of the evidence, the successive wills in 

testator's declining days, and the dismemberment of testator's 

estate under those wills, this Court is compelled to seek a 

factual determination to a series of inconsistencies . 

myopic to fail to correlate the declining phys ica 1 

state of the 81 year old decedent in his last six months of life 

with the sudden rash of wills, diverse in their patterns as com- 
pared to testator's will of 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, at trial 

testimony was given that testator's mind reflected to past 

events in his life while his grasp of present events slipped and 

wandered. As the record of medical treatment was excluded at 

trial and the case was not presented to a 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 will testator was receiving regular injections of codeine, the effect of which could be material. 

The totality of the testimony and evidence at trial goes 

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 

, its preparation. The provisions alone, in view of testator's 

intent, are in question as to his 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 to both 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 in view 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 in Murphy v. Nett, 47 Mont. 38, 52, -132 P. 451, 

as: 

11 In a case involving undue influence the question 

is not what effect the supposed influence would 

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 all the surrounding circumstances. I' 

Additionally, it should be noted that a significant body 

of contestants ' offered evidence was ruled inadmissible at the 

trial and it is to this excluded testimony that we now direct 

our attention. As is clear from point (2) of the test stated 

in Maricich, the physical condition of the testator as it a£- 

fected his ability to withstand influence is an issue for factual 

determination. However, as appellants point out in argument, 

all hospital records of Mack Hall were ruled inadmissible at the 

trial. 

The transcript reveals the parties stipulated at the 

pretrial conference that foundation would not be required to admit the hospital records into evidence under the Uniform Business 

Records as Evidence Act, Chapter 801, Title 93, R.C.M. 1947. 

However, at trial an 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 to the ultimate issues of this case. It does injustice 

to the rational process of weighing the facts to deny admission 

of those facts upon which reasoned judgment must be based. 
There is no 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 

to these exhibits. If these exhibits were not relevant in total, 

or if interpretation of these records requires expert testimony 

for qualified analysis, or if some objections were preserved 

beyond foundation, the pretrial process should have resolved 

the problem., The record at trial indicates it could have been 

a misunderstanding but lacking the factual support of a pretrial 

order, we will limit our observations to what 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