No. 12417 INTHE SUPREME COURT OF THE STATE OF MONTANA 1973

INTHE MATTER OF THE ESTATE OF BUDOIN E. POWERS, Deceased.

Appeal from: District Court of the Thirteenth JudicialDistrict, Honorable RobertWilson, Judge presiding. Counsel of Record: For Appellant

### : Berger, Anderson, Sinclairand Murphy, Billings,

Montana James J. Sinclairargued, Billings, Montana Crowley, Kilbourne, Haughey, Hanson and Gallagher,

Billings, Montana Cale Crowley argued, Billings, Montana For Respondent: Robert C. Brogan, Billings, Montana Keefer and Roybal, Billings, Montana NeilKeefer argued, Billings, Montana

Submitted: September 12, 1973 Decided

## :QCT301973 

## BCT3

## 01973 Filed

### :Mr. JusticeWesley Castles delivered the Opinion of the Court,

This isan appeal from a judgment denying the probate of the 

### willof Budoin E. Powers, dated December 9, 1971. An earlier

### will dated December 18, 1969, was admitted toprobate. A motion for

new trialwas denied. The willcontestwas triedbefore a jury which returned a special verdict finding that Budoin Powers was not competent to execute a 

### willon December 9, 1971; that undue influence had been exerted on her; that thewillwas procured by fraud; that the deceased did not acknowledge tothewitnesses to thewillthat itwas her last

### willand testament; and, that it

was not properly executed, More 

### willbe said later inthis Opinion concerning the special verdict. Four issues areraised on appeal: (1) Failure of the trialcourt to grant proponents' motion for a directed verdict, made both atthe close of contestants'

case and atthe close of a11of the evidence on the grounds that therewas no competent substantial evidence supporting a holding of invalidity of the

### will. (2) The submission of a special verdict when there

### was no competent substantial evidence towarrant consideration by a jury. 

### (3) The special verdict was indirect conflictwith a given instruction. 

### (4) The giving and refusing of certainjury instructions, Asbackground for our discussion, the following facts are set forth: Budoin Powers was married twice during her lifetime, giving birth to two separate and distinct families. She was divorced from Clarence Shelden around 1940, and had six small children to support. She subsequentlymarried T. R. Powers, a man 23 years her senior and an established rancher. The Shelden children apparently lived on the Powers ranch only until they were old enoughto go on their own. They then went their separateways and there

was littlecommunication between them and their mother for many years. Budoin E. Powers had five childrenby her marriage to Thomas R. Powers: Patrick Powers, Penny Powers (Mrs. Anthony Bear ~on't Walk), Paul Powers, Danny Powers and Darwin Powers. These childrenwere raised on the Powers ranch near Wyola. After the death of T. R. Powers the family continued tooperate theranch until itwas ultimately leased in 1967 toLittleHorn Land and Livestock Company of Wyola. T. R. Powers, the father of contestants, died in 1964. His last

### willand testament dated May 22, 1958, left another ranch situate in Glacier County intrust for his five childrenborn of his marriage toBudoin Powers. The remainder of his estatewas left toBudoin Powers, with 

### a proviso that if she predeceased him the remainder would be held intrust for the five Powers children tobe distributed when the youngest reached the age of majority. Budoin Powers likewise executed a 

### willin 1958. Her entire estate atthat time was left to the five Powers children in trust tobe distributed when the youngest attained the age of majority. After the death of T. R. Powers, Budoin Powers executed a second 

### willon January 19, 1967. This 

### willleft $5,000, payable out of lifeinsurance proceeds only, toeach of the six Shelden children. The remainder of her estatewas placed intrust for the five Powers children tobe distributed to them when theyoungest attained the age of majority. On December 18, 1969, Budoin Powers executed a thirdwill. In thiswill she, for the firsttime, enumerated the six Shelden children. The 1969willleftcertain royalty and mineral interests toMontana StateCollege atBozeman and to the Shelden children. She again leftto the Shelden children the sum of $5,000 each, payable out of lifeinsurance proceeds only. The remainder of herestatewas left tothe Powers children, excluding Patrick, intrust, for distributionwhen the youngest attained the age of majority. On December 9, 1971, Budoin Powers executed yet another

### will. In this

### will, with the sole exception of a $10,000 trust for Penny Bear, the Powers children were disinherited. Budoin Powers died inBillings, Montana, on June 20, 1972, atthe age of 60. On June 27, 1972, one week afterher death, petition for probate of the 

### willdated December 9, 1971, was filed inYellowstone County. On July 

### 7, 1972, the five children of Budoin Powers and T. R. Powers filed a petition inopposition to probate of that will. The 1958willof T. R. Powers named Budoin Powers as Trustee of the Glacier County ranch. The 

### trust named the Powers children

asbeneficiaries and was to terminate in September 1973, when the youngest childreached the age of majority. As it happened the age of majoritywas lowered by legislative action and the trust

was terminated sooner. The willbeing contested here was executed

on December 9, 1971. The testatrix, Budoin Powers, executed documents effectively distributing the Glacier County ranch trust assets to the Powers children on December 8, 1971. As to the

### willof December 9, 1971, the events leading to 

### its execution appear from the record: J. H. Kilbourne, Esquire, had drafted prior 

### wills forboth T. R. Powers and Budoin E. Powers, including thewillof December 18, 1969 of Budoin Powers. The 

### willhere contested was drafted in final form on November 18, 1971, although not executed by Budoin E. Powers untilDecember 9, 1971. The two witnesseswere Robert Lee and Kemp Wilson, attorneys associatedwith J. H. Kilbourne, and with the law firm of Crowley, Kilbourne, Haughey, Hanson & Gallagher. Kilbourne firstreferred Budoin E. Powers toRobert Lee on legal matters in the spring of 1971. Atthat timeLee represented her ina guardianshipproceeding; ina municipal court case; and had considerable contact with her concerning the handling of theGlacier County ranch trust created in the

### willof T. R. Powers for the benefit of the Powers children, contestants here. On October 

### 17, 1971, Budoin Powers was taken to the intensive careunit atthe hospital as a result of a heart attack. On October 20, 1971, Kilbourne requested Lee to go see her concerning a new will. Lee went to the hospital on that date, advised the hospital personnel that he had legal matters to discusswith Budoin Powers and was permitted entry into the intensive

careunit for that purpose. Here, we digress somewhat tobring in other factors. Proponent Thelma Shelden Daly, 37 years of age, left the Powers ranch when she was 13or 14years of age and went to live with a 

### sister inIdaho. When she was almost 16 shebecame gainfully employed in Seattle, Washington for about four years, until she married. She returned every year thereafter tovisither mother. She stayed atthe Rimrock Lodge and ather half sister's home (Penny Powers Bear), during her mother's illness. Shortly afterher mother's firstheart attack, ather mother's request, she removed allof her mother's belongings from penny's home. When her mother left the hospital on November 4, 1971, her mother took the things back to Penny's home where she went to livebecause the doctor specified that she should be accompanied by someone. The day before Bedoin powers' second heart attack, November 18, 1971, shewent toa motel to staywith Thelma Shelden Daly and itwas from that motel that she called

### Mr. Lee. Atthat time Thelma was planning to take her mother back to Portland to stay with her. After her mother had her second heart attack on November 19, Thelma stayed inBillings until November 31, atwhich time she returned toher home in Portland and did not return to Billings until December 23. On October 20, 1971, when Lee went to the hospital to talk with Budoin Powers, Thelma Shelden Daly was inthe hospital corridor when he arrived, but Lee alonewent into the intensive care unitto talk toBudoin Powers. Exhibit 

### 1is the handwritten note Lee made during his conversation with Budoin Powers; Exhibit 2 

### is the note Lee dictated on the same day in his office addressed to Kilbourne covering his conversation with Budoin Powers. Budoin Powers could not remember birthdates of alleleven of her children, nor the married name of one of the Shelden childrenwho had been divorced and remarried more than once. She

was not, however, confused; and Lee had no difficulty nor problem conversing with her. She told Lee to get the birthdates from the 1969

### will, or from Thelma Daly who would assist him. Lee was not certainwhether

ornot he got the birthdates from Thelma, from Budoin Powers, or from the old

### will. He did know definitely thathe had not told Thelma Daly about the

### willor itscontents; that Thelma Daly did not help him in preparing the willinany way; that she might

ormight not have entered the hospital room while he was there, because Budoin Powers occasionally called eitherThelma or nurses in for various matters during the times that Lee was there; but he knew definitely that Thelma was never in the room when he discussed with Budoin Powers the substantive dispositive provisions of the

### will. Lee had factual investigations tomake to carry out the wishes expressed by Budoin Powers but had an initial final draft ready about October 28, when they expected the

### willtobe executed on October 30. When Budoin Powers began tomend, it was decided not togo ahead with thewillatthat time. Thinking of the possibility of executing the 

### willabout October 30, Lee on October 27, 1971, telephoned the attending physician, Dr. Byorth, and inquiredwhether there was any medical reason why Budoin Powers could not execute her will, and was advised that therewas no such reason. The fee billreflects the telephone conversation with Dr. Byorth on October 27, and Dr. Byorth confirmed that he had received such a call. In addition to testifying that he had received the telephone call from Attorney Lee inOctober, Dr. Byorth referred tonotes hehad made upon the admission of Budoin Powers to the hospital in October and hisnote of October 

### 30 to the effect that she was

Itoriented as toperson, place and time". He recalled his note of October 

### 30 was made because that was the date anticipated for the execution of the

### will. ~ee's testimony was that when he learned Budoin Powers was

on the mend and there was no urgency, it was decided not to go ahead with the

### willatthat time. Furthermore, after taking care of some of the administrative matters to seewhether or not her plans were feasible, he testified he "got back with her, oh, on two or three times while shewas 

### stillin the hospital". Lee had numerous telephone conversations with Budoin Powers after she left the hospital November 

### 4, 1971, and he completed the final draft of thewillwhich she intended to execute in the office on November 18 or 19, 

### 1971. Two of the contestants, Paul Powers and Penny Bear, who 

### will obtain substantial amounts of money by the revocation of the

### will, testified concerning Budoin Powers' condition while in the hospital afterher firstheart attack. Paul Powers testified that she was inpretty bad shape and incapable of intelligent speech when she went in; that she became more coherent after she got out of the intensive care unit, which he thought was a week and a half after she went in. Penny testified that for two days after she went in the hospital October 17, her mother hardly knew who shewas, and the condition continued for three four days. Accepting this testimony at

### its face value, it stands uncontradicted and undisputed inthe record that itwas from October 

### 28 on untilNovember 18 that Attorney Lee, as 

### a result of numerous conferences with her, and numerous changes and corrections inthe willrequested by her, finally completed the document on November 18. Lee testified: 

### "* 

# * So eventually by sort of a process of discussion and finding out what was feasibleMrs. Powers and I arrived atthis document which she was satisfiedreflected her last

### will, and she told me she'd be in about the 18th or 19th, the latterpart of that week, and we'd have the ceremony

# **

# *. I'There 

### isno testimony from any witness to suggest or indicate that any of the Shelden children, including Thelma, knew that the new 

### willwas contemplated, orwhat the 

### terms or provisions were, or ever discussed them with their mother, or exerted any influence of any kind or character whatsoever on their mother concerning the terms and provisions of the

### will, or ever exerted influence on anyone else. Repeating, the undisputed facts are: That Budoin Powers entered the hospital on October 17, 1971and was immediately taken to the intensive care unit. That Lee first talked with her on October 20, 

### 19% making extensive handwritten and typewritten other notes, and on three or four/occasions before her release from the hospital on November 

### 4. The firstdraft of thewillwas completed

on October 28, atwhich time itwas anticipated that shewould execute the

### willon October 30, but when she improved physically therewas no need for an immediate execution of the

### willand it

was postponed. She left the intensive care unit on November 

### 1, and was released and discharged from the hospital on November 

### 4. Contestant Paul Powers testified unequivocally that she became coherent when she got out of the intensive careunit on November 

### 1. Contestant Penny Bear testified that three or four days afterher admission on October 

### 17, she started torecognize people, and could then talk. There 

### isabsolutelyno evidence of any kind of any lack of competence from that date on untilher second heart attack. The testimony of Lee 

### isuncontradicted and undisputed that the final draft of the

### willwas completed on November 18 as the result of numerous conferences with Budoin Powers between October 20 and November 18, and she was expected at~ee's office to execute thewillon November 18 or 19; therewas no change before the execution on December 

### 9. Indeed, it 

### isclear there was never any evidence of undue influence or fraud atany time. ~ee's notes handwritten on October 20 quote her reasons for not including the Powers boys, i.e., that property was coming tothem under the Glacier County ranch trust and they must prove they aremen. Patrick Powers had alreadybeen eliminated from the 1969

### will. 

### Mrs. Powers told Lee she

### was very fond of both Thelma (who did not participate as a beneficiary inthe Glacier County ranch involved in the trust created inthe

### willof T.R. Powers), and of Penny Bear (who did participate as a beneficiary inthe Glacier County ranch trust). Thelma came tovisither from timeto time, and she visited Thelma from time to time. Whenever she needed Thelma, she came. She also felt the same way about Penny, who helped take care of her. She wanted togive Thelma the lion's share, and gave her more than she gave Penny, because Penny and the other four children of T. R. Powers were

soon to come into that trust property which was scheduled to terminate in September 1973. Budoin Powers thought that the Glacier County ranch would produce from $500,000 to $900,000. She did not anticipate that Penny Bear would leave Billings totake part inthe operation of the Glacier County ranch, but shewanted todo something special for Penny, so she setup the trust for Penny of $10,000 totake

care of odds and ends such asmedical expenses and the like. In the event of Penny's demise, the grandchildren were recognized, but 

### Mrs. Powers did notwant the money to fallinto thehands of penny's husband, Anthony Bear Don't Walk. She was not certain that the marriage of Penny and Anthony would last, and if that marriage terminated, then shewanted the money to immediately vest inand be available to Penny. It 

### is also of interest that Budoin Powers had gone to live with Thelma inJanuary 1971and apparently loaned Thelma $1,000 inJuly of that year, but there is simply no evidence of any other gratuities toany of the first sixof her children born of her marriage to Shelden. On the other hand, she had already made a home for Paul Powers and hiswife inHawaii while he was attending the University of Hawaii and had advanced toPaul some $21,977.73 of trust funds.Lee completed the final draft of the 

### willon November 18, 1971, solely as the result of numerous conferences between Bedoin Powers and Lee while she was admittedly competent, to insure that the final product carried out her wishes and desires. There 

### isno evidence that any other person ever discussed the contents of the 

### willor the testamentary desires or intentions of Bedoin Powers with eitherher orwith Lee. The willas finally drafted on November 18was duly executed by Bedoin Powers before Lee and Kemp Wilson on December 9. There 

### isnot one shred of evidence of incompetence, undue influence, or fraud in the finalizing of that 

### willon November 18, and Bedoin Powers had sensible reasons for the division of allproperty between alleleven children inview of the provisions of the Glacier County ranch trust for the five Powers children, and the 1971willconcerning the Big Horn County ranch for the six Shelden children. From the time of the second heart attack on November 19 through the execution of the 

### willon December 9, these basic facts arenot indispute: November 18, Bedoin Powers left the trailerhome where she stayed with her daughter Penny, and went to a motel with her daughter Thelma and Thelma's children. She intended to go to ~helma's home in Portland. She telephoned Lee from the motel. November 

### 19Penny came to the motel and Bedoin Powers sustained her second heart attack in the presence of Penny, Thelma and ~helma's children. She was immediately taken to the intensive careunit where she had a tracheotomy and the tube was left inher throat. Thelma left Billings with her children and returned toher home in Portland on November 31, and did not return to Billings until December 23, which is the date her mother was released from the hospital. December 8, 1971, was the date allclosing papers including the petition, checks for distribution, and other papers
were executed by Bedoin Powers for termination of the Glacier County ranch trust by which the five Powers children acquired all of the trust property. Penny and Paul both executed the waivers ofaccounting, and Paul Powers accompanied Lee to the hospital and

was present when she executed allof the papers and documents necessary for terminating the trust. On December 9, Kemp Wilson accompanied Lee to the hospital atwhich time the

### will, which had been drafted in final form on November 18, was then executed. Bedoin Powers left the intensive care unit December 14 and was discharged from thehospital on December 23, 1971. She died in June 1972. The impartial testimony of Dr. Byorth, attending physician, and fivenurses who took care of her throughout her stay in the intensive care unit 

### is overwhelming evidence. Laurie Vogele

was on duty from 3:00 p.m. to 11:30 p,m. December 8; Josephine Keeland from 11:OO p.m. on December 8 until 3:30 p.m. on December 9. In addition, the testimony of nurses Pat Silva and Dora Padilla during the same general period of time confirmed the competency of Budoin Powers. With respect totests concerning her ability tounderstand, the nurses would question her during the first few days shewas there, chart the answers, and thereafter when she was aware of what was going on, there was no need to do so. As of December 

### 9, there was no need to ask her the questions any longer, because on that date Bedoin Powers was aware of what was going on. Nurse Connie Dunn worked five days a week throughout all the time Bedoin Powers was in the intensive careunit and she testified that MrS. Powers was competent todispose of her property

on December 9, 1971. Thisjudgment was confirmed by nurses Keeland and Padilla. We have given allof the foregoing details to establish that therewere no issues as toundue influence, fraud, lack of execution orwitnessing of thewill, and the special verdict should not have been submitted to thejury. This alonewould require reversal and a new trial. However, there remains the first issue

as towhether the motion for a directed verdict should have been granted.Contestants' position here is that iftherewas substantial, competent and credible evidence even though the evidencewas conflicting, the verdict of thejury should be upheld. Previously

we have shown that the verdict cannot be upheld, but our problem 

### iswhether there was substantial, competent and credible evidence towithstand the motion for directed verdict. Contestants citeReynolds v. Trbovich, Inc., 123Mont. 224, 210 P.2d 634 and Wyant v. Dunn, 140 Mont. 181, 368 P.2d 917, for the general principle that thejury 

### is the 

### trier of fact and unless the evidence on behalf of the [contestants] 

### isnot inherently so improbable as tobrand it palpably false, the evidence should be submitted to the jury as the jury 

### is the sole judge of credibility of the witnesses. In analyzing the testimony submitted, the only possible issue that could have been submitted to thejury was as to the competency of the testatrix.. Considering the evidence in the best light possible for the contestants, the most that can be said is that the testatrh had intermittent periods of incompetence, but at the time of execution of thewill shewas wholly competent. The only evidence to the contrary, if itbe substantial credible evidence, consisted of the testimony of son Paul Powers, daughter Penny Powers (Mrs. Anthony Bear Don't Walk), Allie Williams, an aunt of deceased, and Genevieve Haworth, a friend of many years. 

### Mrs. Haworth testified that when she talked toBedoin Powers afterher release from the hospital she said she could not remember what went on during her hospital stay. Obviously such a statement does not establish a lack of competency ata given time. The aunt's testimony regarding a hospital visitwhere she said Bedoin Powers did not recognize her on the day of the execution of the 

### willdoes not amount to substantial evidence of incompetency. The son's and daughter's testimony remains. They are the most interestedwitnesses. Both would gain by rejection of the will.

### Son Paul accompanied Attorney Lee to the hospital on December 8 where Bedoin Powers,as trustee of the Glacier County ranch trust, executed the necessary papers to terminate the trust. Paul received the benefits of the termination; and yet testified that his mother was not only incompetent to execute a last will the following day,but that shewas incompetent to execute the trust papers for him on December 8. Such testimony as indicated in the transcript is not credible as a matter of law. Here, after receiving the benefits of his mother's acts,hewould be collaterally estopped from disputing her competency to do those acts. Section 49-113,R.C.M. 1947. Daughter Penny's testimony is of like import. She testified that she visited her mother briefly on the morning of December 

### 9 at which time her mother gave no indication that she knewwhat

was going on. That Bedoin Powers had lucid intervals,at the very least,at all times after the firstweek followingher entry into the hospital on November 19,and that she was competent, aware,and understood everything that was taking place at the time of the execution of her will between 2:00 and 3:00 p.m. on the afternoon of December 

### 9 is all testified to postively by disinterestedwitnesses. In determining that the testimony of the son and daughter was not substantial credible testimony sufficient to go to the jury or sufficient to withstand the motion for directed verdict

on the issue of competency,we are aware of the rules recently discussed in both the majority and dissenting opinions in Hanlon

V. 

### Anderson, Mont

# . , 502 P.2d 51, 29 St.Rep. 825,and

cases cited therein. Generally stated the rule is that this Court will sustain a determination of fact by a trial court based upon substantial conflicting evidence. Our holding here and our analysis of the evidenceby way of testimony and documentary evidence reveals that the testimony of Paul Powers, upon which the trial court's decision rested is,while conflicting,not substantial.He, who received benefits of his mother's execution of documents terminating the Glacier County ranch trust in his favor, will not then be heard to testify that she was incompetent. Contestants citeIn reEstate of Hall v. Milkovich, 158 Mont. 438, 448, 492 P.2d 1388, for the proposition that the issue could and should not have been withdrawn from thejury. We believe a close reading of In reEstate of Hall willreveal the contrary. First, we have heretofore shown that there was
no evidence of undue influence. The only issuewas competency. In In reEstate of Hall the transcript was repletewith evidence that should have been resolved by a jury. Here, lacking ~aul's unbelievable testimony not amounting to "substantial" evidence, reasonable men could not reach different conclusions from the facts. In In reEstate of Hall, a willcontest where the trial court granted a motion for directed verdict for proponents dismissing contestants' petitions, an 81 year old testatorwith

a long history of declining mental and physical health due to a painful terminal cancer, had made four 

### willswithin sixmonths under circumstances clearly showing fact disputes. This Court stated: "Respondents rely heavily on language this Court used inIn reEstate of Cocanougher, 141Mont. 16, 25, 375 P.2d 1009, when the Court quoted from Inre Hegarty's Estate, 46 Nev. 321, 

### 212 P. 1040:

11 1 I8 Courts have neither the right nor power toreframe the

### wills of 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 influence. I'I "This Court 

### ismindful of the dignity that i.t has reposed in a decedent's willand reaffirms this doctrine. But we must recognize that the Court had Cocanougher before it on appeal twice afterjury verdicts finding undue influence and properly found that the evidence revealed none. Therefore that doctrine has no application to the issuebefore us inthe instant case. II In InreEstate of Hall, the trialcourt had ruled out all evidence of hospital records. In the instant case, allevidenceof hospital records plus the doctor and nurses came in, all attesting to competency. The testatrix here was sixtyyears of age, active, and admittedly ingood mental condition except as the heart attacks might have affected it. Moreover, between heart attacks and hospitalizations and thereafter, testatrix herewas competent inallways. A number of other matters appear from the record here that

we do not dwell upon. The contestants' assertions of unnaturalness

11 of the

### will, the "Powers" money not going to the Powers1'children, and other matters during the course of the trialwere allowed to divert the trial court from the single issue, that of competency, to such a degree that evidence was permitted which was not substzntTal and credible and oftennot relevant. Having examined the record, we find thejudgment must be and 

### isreversed and the cause remanded with directions to grantjudgment to the proponents of the

### willof December 

### 9, 1971, and that that 

### willbe admitted toprobate.

Just

### I?



# fChief ~ustice

.