No. 14259 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978

IN THE MATTER OF THE ESTATE OF ANKER H. HOLM, Deceased. HARRY HOLM, JOE HOLM, ROBERT E. HOLM, et al., Contestants and Appellants,

HELEN C. PARSONS, Proponent and Respondent.

Appeal from: District Court of the Twelfth Judicial District,Honorable Leonard Langen, Judge presiding. Counsel of Record: For Appellants: Burns, Solem & MacKenzie, Chinook,Montana William Solem appeared, Chinook,Montana Morrison, Ettien and Barron, Havre,Montana Robert Morrison argued, Havre,Montana For Respondents: Sias, Ranstrom & Graham, Chinook,Montana Donald Ranstrom and Arthur Graham argued,

Chinook,Montana

Submitted: November 21, 1978 Decided: 

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## 31g7(1 Filed:Mr. JusticeJohn C. Sheehy delivered the Opinion of the Court

# . Anker H. Holm died November 15, 1976,at the age of 78years. On November 22, 1976,respondent, a niece of decedent, offered for informalprobate a will dated October 17, 1973, inwhich decedent left his entire estate to respondent. Appellants, all nieces and nephews of the decedent then filed a formalpetition for adjudication of intestacy, determination of heirs and appointment of personal representative. Respondent filed in response a formalpetition for probate of will, determination of heirs and testacy, and appointment of personal representative. Appellants filed objections to this petition alleging decedent was incompetent tomake a testamentary disposition and that decedentwas under the undue influence of respondent. Thematter was tried to a jury and at the conclusion of appellants' case, the District Court, Twelfth Judicial District,directed a verdict forproponent,holding there

was no undue influence. The jury returned a specialverdict finding decedent of soundmind when he executed the will in question. The evidence at trial showed that Anker Holm had little formal education and spent most of his time on a homestead north of Chinook. He had livedwith his two older brothers and all threewere bachelors. The older brothers conducted the business affairs of the ranch and managed the household, with the decedent taking little part in this activity. The oldest brother died in 1961. From approximately 1969 decedent's mind appeared to be failing and he seemed frequently confused and disoriented to his neighbors. This condition was apparently exacerbated by the death of his remaining brother in September 1973. -2-Shortly thereafter,on September 24, 1973,decedent executed a warranty deed to the United States for nearly his entire ranch for no consideration. Decedent's niece, respondent here,petitioned for and was appointed guardian ad litem for decedent. An actionwas then instituted in the United States District Court for the district of Montana for the rescission of the warranty deed. Testimony in the Federal District Court indicated deceaent was suffering from an organic brain syndrome. The psychiatristwho testified gave his opinion that decedent

was not competent to handle his own affairs since about 1969. The court found decedent not legally competent to execute the deed in question and ordered its rescission or in the alternative,payment of the fair market value of the land. The findings of the Federal Court were admitted into evidence in the will contest involved in this appeal. Thewill which is the subject of this appeal was dated October 17, 1973. Itwas similar to previous wills executed individuallyby the Holm brothers in which they devised everything to the surviving brothers and recited testator intentionally left nothing to anyone else. In this case, decedent's will lefthis entire estate to respondentand made the same recitation of an intention not to leave anything to anyone else. Respondent had come to the ranch in 1971 to keep and manage the house for decedent and his older brother. Appellants had very limited contactwith decedent during his lifetime. Evidence introduced at the will contest included testimony from several psychiatrists, all of whom agreed that decedent was suffering from chronic brain syndrome

(not a disease in itself, rather a collection of symptoms resulting from diseases affecting the functionsof the brain). -3-Each of the doctors offered his opinion that decedent

was not competent at the time the will was drafted. However, the two doctors who personally examined the deceased did not question him about making awill and they indicated there were degrees of impairment and incompetencydue to the syndrome. Respondent testified as an adversewitness shewas of the opinion,with respect to business affairs, that at the timeAnker Holm made the deed to the federal government he did not have the mental capability to make "aclear and intelligent and voluntary disposition of his property". Expert testimonywas also presented at trial on behalf of respondent emphasizing decedentmay have been able to comprehend the result of his actions in making the will in question and that the syndrome fromwhich decedent suffered caused varying degrees of impairment. Lay testimony from decedent's acquaintanceswas introduced indicating decedent understood the nature of his land holdings,understood what he was doing in making thewill and was able to recognize neighbors and carry out transactionswith them. Three issues are presented in this appeal. First,was there sufficient, substantial credible evidence to support the jury verdict that decedent was competent to make the will in question? Second,did the District Court err in admitting certain testimony objected to as without proper foundation,and if so,was the error harmless? Finally, is this an appealwithout merit and thus appropriate for Rule 32,Mont.R.App.Civ.P., sanctions? In considering the first issue,we are guided by a very basic and limited standard of review. 

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# . . .where a fact issue or issues are presented before 

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# . a court sitting 

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# . .with a jury, and there is substantial evidence -4-to support 

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# . the jury verdict, such 

# . . .verdict [is] conclusive on appeal." Johnson v. St. Patrick's Hospital (1968),152Mont. 300, 448 P.2d 729, 733; Big Sky Livestock, Inc. v. Herzog (1976), Mont

# . I 558 P.2d 1107, 1110, 33 St-Rep.1232; In Re Bielenberg's Estate (1930),86 Mont. 521, 284 P. 546, 549; Murphy v. Nett (1913),47Mont. 38, 130 P. 451, 456. We review the evidence in a lightmost favorable to the prevailing party, and we will reverse only when there is a lack of substantial evidence introduced to support the results. In Re Dillenburg's Estate (1960),136 Mont. 542, 349 P.2d 573, 574;Big Sky Livestock, Inc. v. Herzog, supra; Johnson v. St. Patrick's Hospital, supra. We have recently stated substantial evidence is evidence such as will convince reasonable men and about which reasonablemen will agree supports the case of the prevailing party. Cameronv. Cameron (1978)

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### , 35 St.Rep. 1723, 1729 (citingcases). Furthermore, the evidencemay be inherently weak and still be deemed substantial,and substantial evidencemay conflict with other evidencepresented. Campeau v. Lewis (1965), 144Mont. 543, 398 P.2d 960, 962, 963;Cameronv. Cameron, supra. Reviewing the record on appealwith these guidelines in mind,we conclude there was substantial evidence to support the jury verdict and thus affirm the judgment of the District Court entered upon that verdict. Respondent presented testimony from relatives, neighbors and acquaintancesof Anker Holm and expert medical testimony. Though Anker Holm suffered from oddities of habit and eccentricities,and exhibited some symptoms of

a failingmind, this evidence indicated he nevertheless knewhe owned cattle and land,was able to identify theextent and boundaries of his land, and knewhe had made

a will leaving his estate to the respondent, Helen Parsons. The evidence also indicated that in April 1973,Anker Holm and his surviving older brother had made reciprocalwills naming each other as beneficiary, and subsequent to the brother's death in September 1973,Anker approached his attorney and executed an identicalwill save for naming the respondent as beneficiary. We find this evidence to meet the requirements of substantiality and to be sufficient to support the jury verdict. It is true there is considerable conflicting evidence in the record. However, the credibility and weight given to conflicting evidence is the province of the trier of fact and not this Court. Cameron, supra; In Re Carroll's Estate (1921), 59 Mont. 403, 196 P. 996. Having reviewed the evidence and concluded it is substantial and sufficient to support the jury verdict, our inquiry on this issue is ended. Although the first issue presented above is dispositive of this appeal, the remaining issues deserve comment. Appellants allege error on the part of the District Court for admitting certain testimony of Grace Benbo, the secretary of Anker Holm's now deceased attorney. The testimony related to possible awareness on the part of the attorney of the existence of the deed to the federal government at the time thewill in question was drafted. Appellants allege this testimcny has bearing on the motives of the individuals involved in the drafting of the will. However, as respondent correctly points out, the court directed a verdict in favor of respondent on the allegation of undue influence and appellants have chosen not to appeal from that action. Testimony relating to possible motives of -6-individuals other than the decedent has no relevance to an appeal concernedwith the sufficiency of evidence to support a jury verdict declaring the decedent competent. Therefore, the error, if it existed,would have to be deemed harmless under Rule 61,M0nt.R.Civ.P. As to the final issue,respondent has mcved this Court to grantmoney damagespursuant to Rule 32,Mont.R.App. Civ.P. Rule 32 states this Court may, if satisfied from the record and presentation of appeal that there are no substantial or reasonable grounds for appeal, assess damages if the appeal was for reasons of delay only. The specifications of error in this appeal relate to the sufficiency of the evidence to support the jury verdict. Appellants presented a very strong case for a finding of incompetency. Respondent in her brief admits the evidence tended to su~port the allegations of appellants. While it is true this Court must give great deference to jury verdicts,we are also obligated to examine the evidence supporting those verdicts to test its sufficiencywhen asked to do so in an appeal such as this. The specifications of error raised by appellants

are not groundless or unreasonable, thus Rule 32 damages are not appropriate in this appeal and respondent'smotion is denied. Judgment affirmed.

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JusticeWe Concur:

Chief Justice