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 : 

JAN - 3 1gn - .?, c":;;.; -- 3 1g7(1 Filed: 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court . 

Anker H. Holm died November 15, 1976, at the age of 

78 years. On November 22, 1976, respondent, a niece of 

decedent, offered for informal probate a will dated October 

17, 1973, in which decedent left his entire estate to 

respondent. 

Appellants, all nieces and nephews of the decedent 

then filed a formal petition for adjudication of intestacy, 

determination of heirs and appointment of personal representative. Respondent filed in response a formal petition 

for probate of will, determination of heirs and testacy, 

and appointment of personal representative. Appellants filed 

objections to this petition alleging decedent was incompetent 

to make a testamentary disposition and that decedent was under 

the undue influence of respondent. 

The matter was tried to a jury and at the conclusion 

of appellants' case, the District Court, Twelfth Judicial 

District, directed a verdict for proponent, holding there 

was no undue influence. The jury returned a special verdict 

finding decedent of sound mind 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 lived with his two older brothers 

and all three were 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. 

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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 action was 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 psychiatrist who 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. 

The will which is the subject of this appeal was dated 

October 17, 1973. It was similar to previous wills executed 

individually by 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 left his entire estate to respondent and 

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 contact with 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 functions of the brain). 

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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 a will and they indicated 

there were degrees of impairment and incompetency due to 

the syndrome. Respondent testified as an adverse witness 

she was of the opinion, with respect to business affairs, 

that at the time Anker Holm made the deed to the federal 

government he did not have the mental capability to make 

"a clear and intelligent and voluntary disposition of his 

property". 

Expert testimony was also presented at trial on behalf 

of respondent emphasizing decedent may have been able to 

comprehend the result of his actions in making the will in 

question and that the syndrome from which decedent suffered 

caused varying degrees of impairment. Lay testimony from 

decedent's acquaintances was introduced indicating decedent 

understood the nature of his land holdings, understood what 

he was doing in making the will and was able to recognize 

neighbors and carry out transactions with 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 appeal without 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. " . . . where 

a fact issue or issues are presented before . . . a court 

sitting . . . with a jury, and there is substantial evidence 

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to support . . . the jury verdict, such . . . verdict 

[is] conclusive on appeal." Johnson v. St. Patrick's 

Hospital (1968), 152 Mont. 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), 47 Mont. 38, 130 P. 451, 456. We review the 

evidence in a light most 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 

reasonable men will agree supports the case of the prevailing 

party. Cameron v. Cameron (1978) , Mont . P.2d 

, 35 St.Rep. 1723, 1729 (citing cases). Furthermore, 

the evidence may be inherently weak and still be deemed 

substantial, and substantial evidence may conflict with 

other evidence presented. Campeau v. Lewis (1965), 144 Mont. 

543, 398 P.2d 960, 962, 963; Cameron v. Cameron, supra. 

Reviewing the record on appeal with 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 acquaintances of Anker Holm and expert medical 

testimony. Though Anker Holm suffered from oddities of 

habit and eccentricities, and exhibited some symptoms of 

a failing mind, this evidence indicated he nevertheless 

knew he owned cattle and land, was able to identify the 
extent and boundaries of his land, and knew he 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 reciprocal wills 

naming each other as beneficiary, and subsequent to the 

brother's death in September 1973, Anker approached his 

attorney and executed an identical will 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 the will 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 

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individuals other than the decedent has no relevance 

to an appeal concerned with 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 grant money damages pursuant 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 sufficiency when 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's motion 

is denied. 

Judgment affirmed. 

b e 

Justice 

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We Concur: 

Chief Justice