No. 12417 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1973 

IN THE MATTER OF THE ESTATE 

OF BUDOIN E. POWERS, Deceased. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable Robert Wilson, Judge presiding. 

Counsel of Record: 

For Appellant : 

Berger, Anderson, Sinclair and Murphy, Billings, 

Montana 

James J. Sinclair argued, 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 

Neil Keefer argued, Billings, Montana 

Submitted: September 12, 1973 

Decided :QCT 3 0 1973 

BCT 3 0 1973 

Filed : 
Mr. Justice Wesley Castles delivered the Opinion of the Court, 

This is an appeal from a judgment denying the probate of the 

will of Budoin E. Powers, dated December 9, 1971. An earlier will 

dated December 18, 1969, was admitted to probate. A motion for 

new trial was denied. The will contest was tried before a jury 

which returned a special verdict finding that Budoin Powers was 

not competent to execute a will on December 9, 1971; that undue 

influence had been exerted on her; that the will was procured by 

fraud; that the deceased did not acknowledge to the witnesses to 

the will that it was her last will and testament; and, that it 

was not properly executed, More will be said later in this Opinion 

concerning the special verdict. 

Four issues are raised on appeal: 

(1) Failure of the trial court to grant proponents' motion 

for a directed verdict, made both at the close of contestants' 

case and at the close of a11 of the evidence on the grounds that 

there was 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 to warrant consideration by a 

jury. 

(3) The special verdict was in direct conflict with a given 

instruction. 

(4) The giving and refusing of certain jury instructions, 

As background 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 subsequently married 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 enough 
to go on their own. They then went their separate ways and there 

was little communication between them and their mother for many 

years. 

Budoin E. Powers had five children by her marriage to 

Thomas R. Powers: Patrick Powers, Penny Powers (Mrs. Anthony Bear 

~on't Walk), Paul Powers, Danny Powers and Darwin Powers. These 

children were raised on the Powers ranch near Wyola. After the 

death of T. R. Powers the family continued to operate the ranch 

until it was ultimately leased in 1967 to Little Horn Land and 

Livestock Company of Wyola. 

T. R. Powers, the father of contestants, died in 1964. His 

last will and testament dated May 22, 1958, left another ranch 

situate in Glacier County in trust for his five children born of 

his marriage to Budoin Powers. The remainder of his estate was 

left to Budoin Powers, with a proviso that if she predeceased 

him the remainder would be held in trust for the five Powers 

children to be distributed when the youngest reached the age of 

majority. 

Budoin Powers likewise executed a will in 1958. Her entire 

estate at that time was left to the five Powers children in trust 

to be distributed when the youngest attained the age of majority. 

After the death of T. R. Powers, Budoin Powers executed a 

second will on January 19, 1967. This will left $5,000, payable 

out of life insurance proceeds only, to each of the six Shelden 

children. The remainder of her estate was placed in trust for 

the five Powers children to be distributed to them when the youngest 

attained the age of majority. 

On December 18, 1969, Budoin Powers executed a third will. 

In this will she, for the first time, enumerated the six Shelden 

children. The 1969 will left certain royalty and mineral interests 

to Montana State College at Bozeman and to the Shelden children. 

She again left to the Shelden children the sum of $5,000 each, 

payable out of life insurance proceeds only. The remainder of her 
estate was left to the Powers children, excluding Patrick, in trust, 

for distribution when 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 in Billings, Montana, on June 20, 1972, 

at the age of 60. On June 27, 1972, one week after her death, 

petition for probate of the will dated December 9, 1971, was filed 

in Yellowstone County. On July 7, 1972, the five children of 

Budoin Powers and T. R. Powers filed a petition in opposition to 

probate of that will. 

The 1958 will of T. R. Powers named Budoin Powers as Trustee 

of the Glacier County ranch. The trust named the Powers children 

as beneficiaries and was to terminate in September 1973, when the 

youngest child reached the age of majority. As it happened the 

age of majority was lowered by legislative action and the trust 

was terminated sooner. The will being 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 will of December 9, 1971, the events leading to its 

execution appear from the record: 

J. H. Kilbourne, Esquire, had drafted prior wills for both 

T. R. Powers and Budoin E. Powers, including the will of December 18, 

1969 of Budoin Powers. The will here contested was drafted in 

final form on November 18, 1971, although not executed by Budoin 

E. Powers until December 9, 1971. The two witnesses were Robert Lee 

and Kemp Wilson, attorneys associated with J. H. Kilbourne, and 

with the law firm of Crowley, Kilbourne, Haughey, Hanson & Gallagher. 

Kilbourne first referred Budoin E. Powers to Robert Lee on 

legal matters in the spring of 1971. At that time Lee represented 

her in a guardianship proceeding; in a municipal court case; and 

had considerable contact with her concerning the handling of the 
Glacier County ranch trust created in the will of T. R. Powers 

for the benefit of the Powers children, contestants here. 

On October 17, 1971, Budoin Powers was taken to the intensive care unit at the 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 discuss with Budoin Powers and was permitted entry into the intensive 

care unit for that purpose. 

Here, we digress somewhat to bring in other factors. 

Proponent Thelma Shelden Daly, 37 years of age, left the 

Powers ranch when she was 13 or 14 years of age and went to live 

with a sister in Idaho. When she was almost 16 she became gainfully employed in Seattle, Washington for about four years, until 

she married. She returned every year thereafter to visit her 

mother. She stayed at the Rimrock Lodge and at her half sister's 

home (Penny Powers Bear), during her mother's illness. Shortly 

after her mother's first heart attack, at her mother's request, 

she removed all of 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 live because 

the doctor specified that she should be accompanied by someone. 

The day before Bedoin powers' second heart attack, November 

18, 1971, she went to a motel to stay with Thelma Shelden Daly 

and it was from that motel that she called Mr. Lee. At that 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 in Billings until November 31, at which time she 

returned to her 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 in the hospital corridor 

when he arrived, but Lee alone went into the intensive care unit 
to talk to Budoin Powers. Exhibit 1 is 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 all eleven 

of her children, nor the married name of one of the Shelden 

children who 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 certain whether 

or not he got the birthdates from Thelma, from Budoin Powers, or 

from the old will. He did know definitely that he had not told 

Thelma Daly about the will or its contents; that Thelma Daly did 

not help him in preparing the will in any way; that she might 

or might not have entered the hospital room while he was there, 

because Budoin Powers occasionally called either Thelma 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 to make to carry out the wishes 

expressed by Budoin Powers but had an initial final draft ready 

about October 28, when they expected the will to be executed on 

October 30. When Budoin Powers began to mend, it was decided not 

to go ahead with the will at that time. Thinking of the possibility 

of executing the will about October 30, Lee on October 27, 1971, 

telephoned the attending physician, Dr. Byorth, and inquired whether 

there was any medical reason why Budoin Powers could not execute 

her will, and was advised that there was no such reason. The fee 

bill reflects 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 in October, Dr. Byorth referred to notes he 
had made upon the admission of Budoin Powers to the hospital in 

October and his note of October 30 to the effect that she was 

It oriented as to person, 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 will at that time. Furthermore, after taking care 

of some of the administrative matters to see whether or not her 

plans were feasible, he testified he "got back with her, oh, on 

two or three times while she was still in 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 the will which 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 

after her first heart attack. Paul Powers testified that she was 

in pretty 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 she was, 

and the condition continued for three four days. Accepting this 

testimony at its face value, it stands uncontradicted and undisputed 

in the record that it was from October 28 on until November 18 

that Attorney Lee, as a result of numerous conferences with her, 

and numerous changes and corrections in the will requested 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 feasible Mrs. Powers and I 

arrived at this document which she was satisfied reflected her last will, and she told me she'd be in about 

the 18th or 19th, the latter part of that week, and we'd 

have the ceremony * * *. I' 
There is no testimony from any witness to suggest or indicate that any of the Shelden children, including Thelma, knew 

that the new will was contemplated, or what 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, 1971 and 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 first draft of the will was completed 

on October 28, at which time it was anticipated that she would 

execute the will on October 30, but when she improved physically 

there was no need for an immediate execution of the will and 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 care unit on November 1. 

Contestant Penny Bear testified that three or four days after her 

admission on October 17, she started to recognize people, and 

could then talk. There is absolutely no evidence of any kind of 

any lack of competence from that date on until her second heart 

attack. 

The testimony of Lee is uncontradicted and undisputed that 

the final draft of the will was 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 

the will on November 18 or 19; there was no change before the 

execution on December 9. Indeed, it is clear there was never any 

evidence of undue influence or fraud at any time. 

~ee's notes handwritten on October 20 quote her reasons for 

not including the Powers boys, i.e., that property was coming to 
them under the Glacier County ranch trust and they must prove 

they are men. Patrick Powers had already been eliminated from 

the 1969 will. Mrs. Powers told Lee she was very fond of both 

Thelma (who did not participate as a beneficiary in the Glacier 

County ranch involved in the trust created in the will of T.R. 

Powers), and of Penny Bear (who did participate as a beneficiary 

in the Glacier County ranch trust). Thelma came to visit her 

from time to 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 to give 

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 to take part in the operation of 

the Glacier County ranch, but she wanted to do something special 

for Penny, so she set up the trust for Penny of $10,000 to take 

care of odds and ends such as medical expenses and the like. In 

the event of Penny's demise, the grandchildren were recognized, 

but Mrs. Powers did not want the money to fall into the hands 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 she wanted the money to immediately 

vest in and be available to Penny. 

It is also of interest that Budoin Powers had gone to live 

with Thelma in January 1971 and apparently loaned Thelma $1,000 

in July of that year, but there is simply no evidence of any 

other gratuities to any of the first six of her children born 

of her marriage to Shelden. On the other hand, she had already 

made a home for Paul Powers and his wife in Hawaii while he was 

attending the University of Hawaii and had advanced to Paul some 

$21,977.73 of trust funds. 
Lee completed the final draft of the will on 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 is no 

evidence that any other person ever discussed the contents of the 

will or the testamentary desires or intentions of Bedoin Powers 

with either her or with Lee. The will as finally drafted on 

November 18 was duly executed by Bedoin Powers before Lee and Kemp 

Wilson on December 9. There is not one shred of evidence of 

incompetence, undue influence, or fraud in the finalizing of that 

will on November 18, and Bedoin Powers had sensible reasons for 

the division of all property between all eleven children in view 

of the provisions of the Glacier County ranch trust for the five 

Powers children, and the 1971 will concerning 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 will on December 9, these basic 

facts are not in dispute: November 18, Bedoin Powers left the 

trailer home 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 19 Penny 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 care unit where she had a tracheotomy and the tube was 

left in her throat. 

Thelma left Billings with her children and returned to her 

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 all closing 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 of 
accounting, and Paul Powers accompanied Lee to the hospital and 

was present when she executed all of the papers and documents 

necessary for terminating the trust. On December 9, Kemp Wilson 

accompanied Lee to the hospital at which 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 the hospital on December 23, 1971. She died in 

June 1972. 

The impartial testimony of Dr. Byorth, attending physician, 

and five nurses 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 to tests concerning her ability to understand, 

the nurses would question her during the first few days she was 

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 care unit and she 

testified that MrS. Powers was competent to dispose of her property 

on December 9, 1971. This judgment was confirmed by nurses Keeland 

and Padilla. 

We have given all of the foregoing details to establish 

that there were no issues as to undue influence, fraud, lack of 

execution or witnessing of the will, and the special verdict should 

not have been submitted to the jury. This alone would require 

reversal and a new trial. However, there remains the first issue 

as to whether the motion for a directed verdict should have been 

granted. 
Contestants' position here is that if there was substantial, 

competent and credible evidence even though the evidence was 

conflicting, the verdict of the jury should be upheld. Previously 

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

is whether there was substantial, competent and credible evidence 

to withstand the motion for directed verdict. 

Contestants cite Reynolds v. Trbovich, Inc., 123 Mont. 224, 

210 P.2d 634 and Wyant v. Dunn, 140 Mont. 181, 368 P.2d 917, 

for the general principle that the jury is the trier of fact and 

unless the evidence on behalf of the [contestants] is not 

inherently so improbable as to brand 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 the jury 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 the will she was wholly 

competent. 

The only evidence to the contrary, if it be 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 to Bedoin Powers 

after her 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 at a given time. 

The aunt's testimony regarding a hospital visit where she 

said Bedoin Powers did not recognize her on the day of the execution 

of the will does not amount to substantial evidence of incompetency. 

The son's and daughter's testimony remains. They are the most 

interested witnesses. 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 she was 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, he would 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 knew what 

was going on. That Bedoin Powers had lucid intervals, at the 

very least, at all times after the first week following her 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 

disinterested witnesses. 

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 evidence by 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 cite In re Estate 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 the jury. 

We believe a close reading of In re Estate of Hall will reveal 

the contrary. First, we have heretofore shown that there was 

no evidence of undue influence. The only issue was competency. 

In In re Estate of Hall the transcript was replete with 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 re Estate of Hall, a will contest where the trial 

court granted a motion for directed verdict for proponents 

dismissing contestants' petitions, an 81 year old testator with 

a long history of declining mental and physical health due to a 

painful terminal cancer, had made four wills within six months 

under circumstances clearly showing fact disputes. This Court 

stated: 

"Respondents rely heavily on language this Court 

used in In re Estate of Cocanougher, 141 Mont. 16, 

25, 375 P.2d 1009, when the Court quoted from In re 

Hegarty's Estate, 46 Nev. 321, 212 P. 1040: 

11 1 I8 Courts have neither the right nor power 

to reframe 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 is mindful of the dignity that i.t has 

reposed in a decedent's will and reaffirms this 

doctrine. But we must recognize that the Court had 

Cocanougher before it on appeal twice after 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. I I 

In In re Estate of Hall, the trial court had ruled out all 

evidence of hospital records. In the instant case, all evidence 
of hospital records plus the doctor and nurses came in, all 

attesting to competency. The testatrix here was sixty years of 

age, active, and admittedly in good mental condition except as the 

heart attacks might have affected it. Moreover, between heart 

attacks and hospitalizations and thereafter, testatrix here was 

competent in all ways. 

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 trial were 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 often not relevant. 

Having examined the record, we find the judgment must be and 

is reversed and the cause remanded with directions to grant judgment 

to the proponents of the will of December 9, 1971, and that that 

will be admitted to probate. 

Jus t I? 

f Chief ~ustice .