No. 88-183 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

THOMAS L. TOPE and ANNA TOPE, 

Plaintiffs and Appellants, 

-VSLILLIAN RUTH TAYLOR, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Twelfth Judicial District, 

In and for the County of Chouteau, 

The Honorable Gordon Bennett, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Ernmons & Coder; Robert J. Emmons, Great Falls, Montana 

For Respondent: 

c3 

Filed: 

Hoyt and Blewett; Alexander Blewett, 111, Great 

Falls, Montana 

!-- 

C1 

z.2 

,.- 

c: 

Submitted on Briefs: Oct. 20, 1988 

Decided: December 9, 1988 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This case was tried to a jury in the Twelfth Judicial 

District Court, Chouteau County, the Honorable Gordon R. 

Bennett, District Judge, sitting for the Honorable Chan 

Ettien, District Judge, after remand from a summary judgment 

appeal. The jury returned a verdict in favor of the 

defendant, Lillian Ruth Taylor, and the plaintiffs appeal. 

We affirm. 

On May 23, 1974, Leslie Taylor drew his last will and 

testament in the law offices of Hauge, Hauge, Ober and 

Spangelo in Havre, Montana. Attorney Lester Hauge retained a 

copy. By his will, Leslie Taylor gave 240 acres to Rodney 

Frazier, $10,000 to his sister, Lillian Taylor, and the 

remainder of his estate, later valued at $506,000, to Tom and 

Anna Tope, in equal shares. Tom Tope and Anna Tope were 

named as executor and alternative executrix. It is 

undisputed that Lillian, Tom and Anna were each aware of the 

will and its contents. This dispute arises because the 

original will was not produced after Leslie's death. 

On May 26, 1974, Leslie went to the Columbus Hospital 

in Great Falls for colon surgery. While still in the 

hospital, Leslie became dissatisfied with the planned 

disposition of his property and began making changes on the 

copy, transcribing the changes onto the original will. These 

changes included a division of the 240 acres, giving 160 

acres to Rodney and Francis Frazier, and 80 acres to Clinton 

Frazier. He also interlineated changes giving the Topes 

one-half of the farmland and Lillian the remaining one-half. 

There was no re-publication or re-attestation of the changed 

dispositions. 
Upon leaving the hospital, Leslie was unable to 

continue living at his ranch due to his poor and weakened 

condition. He began living at the family home in Fort Benton 

with the assistance of Bobbi Rolta, a sixteen-year-old girl, 

hired to care for him on a full time basis. 

Testimony indicated that between May, 1974, and 

Leslie's death in March, 1975, he was concerned about leavinq 

such a substantial amount of his property to the Topes, 

believing Tom Tope to be an inexperienced rancher. Leslie 

was aware of debts Tom had incurred and was worried liens or 

claims would be laid against the ranch. Rather than by will, 

Leslie intended to provide for the Topes in another manner. 

Shortly before his death, Leslie and Lillian agreed to 

sell 10,000 acres of grassland and certain cattle and 

livestock to the Meissner brothers. While an oral agreement 

was reached before Leslie entered the hospital, the purchase 

agreement was executed only two days prior to Leslie's death. 

The proceeds from the sale were placed in Leslie and 

Lillian's joint account. In addition, Leslie signed 

certificates of title to his 1972 International pickup and 

1971 Oldsmobile, and told Lillian he wanted her to give those 

titles to the Topes. 

Leslie Taylor entered the hospital on March 22, 1975. 

He died six days later. Testimony at trial conflicted as to 

the events of March 22. Lillian stated she took Leslie to 

the hospital. She testified that upon arriving at his home 

in Fort Benton, Leslie was sitting on the edge of his bed, 

looking at what appeared to be his will. Lillian contends 

that Leslie said he was not satisfied with the will, and did 

not think it would "hold up." Leslie told Lillian to handle 

everything and assist the Topes as she saw fit. Lillian 
testified that Leslie then took the will and the copy into 

the kitchen, and burned them in the stove. 

Bobbi Bolta contradicted Lillian's testimony about 

these events. Bobbi stated she took Leslie to the hospital. 

She also indicated that Lillian was never alone with Leslie 

for him to burn the will. Nurses' records indicated Leslie's 

sister accompanied him to the hospital. 

Lester Hauge telephoned Tom Tope after Leslie's death. 

Mr. Hauge informed Tom that he was a beneficiary and executor 

of the estate. Tom told the attorney that he knew Leslie had 

changed his will, but did not know the exact changes. Mr. 

Hauge was unaware of the Miessner sale, the joint account or 

the signed certificates of title. 

Two or three weeks after Leslie's death, Anna and Tom 

Tope met with Lillian at her home to discuss the handling of 

Leslie's affairs. The testimony of the events surrounding 

this meeting are varied. Tom testified that Lillian told him 

"there had been some changes," hut did not specify "changes 

in what." Tom assumed, but was not certain, the changes were 

due to the recent cattle and livestock sale to the Meissners. 

In addition, Tom assumed Lillian was in possession of 

Leslie's will because she had his other personal items. 

Lillian never specifically told the Topes she had the will, 

although Anna stated TJillian offered at that meeting to let 

them read it, but they declined. Tom, however, did not 

recall the offer. 

Both Tom and Anna testified that Lillian promised she 

would do her best to carry out Leslie's wishes. Tom assumed 

that Leslie's wishes and Leslie's will were one and the same. 

By inference, Tom assumed he would receive the majority of 

Leslie's estate whether or not the will was produced. 
The will was never produced. Lillian petitioned for 

letters of administration of intestacy and requested 

distribution of the estate to her as sole lawful heir. She 

was appointed the personal representative of the estate. 

Under the decree of final distribution entered in March of 

1976, Lillian received the entire estate, with appraised 

assets of over $500,000. 

Between 1976 and 1982, Lillian gave the Topes assets 

from the estate including case, totalling over $250,000. 

Lillian required the Topes to execute promissory notes in 

exchange for two cash presentments. These notes were 

cancelled by the trial court. 

In October of 1982, when the recently divorced Topes 

were facing financial disaster, Lillian told Anna that she 

was going to "start from the ground up" with respect to the 

distribution of the estate to them. Upon learning of 

Lillian's statement, Tom decided to probate Leslie's will in 

an effort to obtain what he believed was rightfully his. 

This Court found Tom's petition to probate the will was 

barred by the applicable three-year statute of limitations. 

In the Matter of the Estate of Taylor (1984), 207 Mont. 400, 

675 P.2d 944. However, we further stated that Tom could 

proceed through "any other remedy available to him." 

Estate of Taylor, 675 P.2d at 947. 

Tom filed a complaint against Lillian on March 24, 

1984. An amended complaint was served in July of 1984, with 

Anna joined as a plaintiff. The Topes pleaded several 

theories of recovery, including fraud, constructive fraud, 

laches and estoppel. The trial judge, considering all the 

evidence before him, including depositions of all the 

parties, determined no genuine issue of material fact existed 

and granted summa.ry judgment to Lillian on each of the 
theories raised by the Topes. This Court reversed, finding 

the claim premised on promissory estoppel required reversal 

of summary judgment. Tope v. Taylor (Mont. 1986), 728 P.2d 

789, 43 St.Rep. 2074. 

On remand, the jury found that Leslie Taylor had indeed 

destroyed his will prior to his death. Judgment was entered 

in favor of Lillian. 

The Topes raise the following issues for our review: 

1. Did the District Court err in refusing to instruct 

the jury on estoppel and laches and include those issues in 

the special verdict form for the jury? 

2. Did the District Court err in applying the maxim 

"Equity Aids the Vigilant" as a bar to equitable relief? 

3. Did the District Court err in refusing to enter 

findings of fact, conclusions of law and judgment for the 

equity claims asserted by the plaintiffs? 

4. Was the evidence sufficient to iustify the verdict? 

5. Did the District Court err in denyinq the 

plaintiffs' request for a new trial? 

For purposes of this appeal, we shall join plaintiffs' 

issues one, two and three which deal. with potential equity 

claims. 

As an additional issue for review, respondent urges 

this Court to award attorney's fees based upon the a!-1-eged 

frivolous appeal filed bv plaintiffs. 

ISSUE NO. 1 : EQUITY CLAIMS 

Plaintiffs requested the District Court accept proposed 

instructions (numbers 28 through 31) relating to laches and 

equitable estoppel. Plaintiffs sought to bar Lillian from 

claiming Leslie had destroyed his will in 1975. The trial 

fudge refused the instructions, stating the plaintiffs failed 
to present a case on that theory. We find the judge's 

decision appropriate. 

Ordinarily, a party is entitled to jury instructions 

adaptable to his theory of the case. Cremer v. Cremer Rodeo 

Land and Livestock Co. (1979), 181 Mont. 87, 592 P.2d 485. 

However, as pointed out in Cremer, this rule is not absolute. 

The instructions must be supported by credible evidence. This 

factor was found by the District Court to be lacking. 

Laches . . . means negligence in the 

assertion of a right; . . . it exists 

when there has been unexplained delay of 

such duration or character as to render 

the enforcement of the asserted right 

inequitable. 

Montgomery v. Bank of Dillon (1943), 114 Mont. 395, 408, 136 

P.2d 760, 766. Similarly, estoppel is a principle of equity 

which bars a party from the benefit of a prior wrong. 

Kenneth D. Collins Agency v. Hagerott (1984), 211 Mont. 303, 

684 P.2d 487. In support of these theories, plaintiffs 

contend their case was impaired because of Lillian's failure 

or refusal to state Leslie's will was destroyed. Yet, they 

failed to present any evidence in support of such impairment. 

Their principal witness, Bobbi Bolta, testified to the events 

of March 22, 1975. Bobbi claimed she drove Leslie to the 

hospital and that Leslie did not have the opportunity to burn 

his will. Her testimony did not indicate doubts or 

reservations due to the passage of time. Nor was it evident 

exhibits, documents or other witnesses became unavailable 

during the long delay. 

The determination of equitable issues rests solely 

within the discretion of the District Court. Downs v. Smyk 

(1982), 200 Mont. 334, 651 P.2d 1238. We find no abuse of 

discretion. 
Although plaintiffs sought to use laches and equitable 

estoppel against the defendant, the District Court found 

these principles to be more illustrative of the plaintiffs' 

conduct. As stated in the court's opinion and order: 

[Pllaintiffs were not entitled, on the 

record made, to equitable consideration 

simply because, whatever devious, 

inequitable or negligent act or acts 

might have been committed by the 

defendant, the plaintiffs slept on their 

obvious rights and remedies for seven 

long years. They ignored their right, 

indeed their duty, to present their copy 

of the will for probate, if they could 

not secure the original and no subsequent 

will or codicil had appeared. Equity 

aids the vigilant. 

We agree with the District Court's finding that the 

plaintiffs were not entitled to the aid of equity. 

Lillian never unequivocall~7 stated Lesl-ie's will was 

destroyed. However, her actions and representations could 

lead to no other conclusion. By applying for letters of 

administration, Lillian certified no will existed. The 

plaintiffs were aware that they were both beneficiaries and 

executors of the will. We find Lillian's actions were more 

than sufficient to alert the Topes to a potential will 

contest. 

Five issues on the special verdict form were submitted 

to the jury: 

1. Did Les Taylor destroy his will? 

2. Did Les Taylor obliterate the 

residuary clause of his will with 

the intention of revoking it? 

3. Did the defendant commit actual 

fraud? 
4. Did the defendant commit 

constructive fraud? 

5. Are the plaintiffs entitled to 

punitive damages? 

The jury answered "yes" to the first question, rendering moot 

the remaining four questions. No questions of equity were 

ever placed before the jury, and as discussed above, nor were 

such claims appropriate. Therefore, the trial judge was not 

required to make findings and conclusions under Rule 52 (a) , 

M.R.Civ.P. 

ISSUE NO. 2: JURY VERDICT 

Plaintiffs allege the jury verdict was based on 

insufficient evidence, claiming Bobbi Bolta's testimonv 

defeated Lillian's claim that Leslie destroyed his will. 

When a jury verdict is appealed to this Court, our 

function is to determine whether there is substantial 

credible evidence to support the verdict. Clark v. orris 

(Mont. 1987), 734 P.2d 182, 44 St.Rep. 444. 

The standard for review is substantial 

evidence. If substantial evidence 

supports the case of the prevailing party 

the verdict will stand. The evidence 

will be viewed in a light most favorable 

to the party that prevailed at trial and, 

if the evidence conflicts, the 

credibility and weight given to the 

evidence is the province of the jury and 

not this Court. 

Mountain West Farm Bureau Mutual Ins. v. Girton (Mont. 1985), 

697 P.2d 1362, 1363, 42 St.Rep. 500, 501. We have examined 

the 751 pages of transcript provided on appeal and conclude 

such substantial credible evidence exists to support the 

jury's verdict. 
Numerous witnesses were presented at trial. Most 

testimony focused on Leslie's dissatisfaction with his 

planned disposition. William Kelly, a long-time friend of 

the decedent, testified Leslie was aware of Tom's debt 

problems and was concerned the ranch would fall prey to 

creditors. Joe Meissner testified that Leslie wanted Lillian 

to receive all the proceeds from the sale of the grassland 

which indicated an intent to provide for his sister. Rodney 

Frazier also testified regarding Leslie's disposition of his 

assets. 

More directly, plaintiffs' allegations focus on the 

credibility of the witnesses presented at trial. Bobbi Bolta 

claimed she drove Leslie to the hospital on March 22, 1975. 

In addition, Bobbi testified that Lillian could not have seen 

Leslie burn his will, because she was never alone with 

Leslie. Lillian said he did burn his will in the kitchen 

stove before being taken to the hospital. As noted by the 

trial court: 

This is - the judgment that is peculiarly 

and almost exclusively within the realm 

of the jury and cannot be upset unless no 

reasonable person could reach the verdict 

arrived at. Here the question was 

forthright and rudimentary: did the 

deceased destroy the document or didn't 

he? The plaintiffs' key witness said he 

didn't and the defendant said he did. 

The jury apparently believed the 

defendant and disbelieved the plaintiffs' 

witness. (Emphasis in original.) 

Me agree. It is not for this Court to retry factual 

determinations. Dahl v. Petroleum Geophysical Co. (Mont. 

1981), 632 P.?d 1136, 38 St.Rep. 1474. 
ISSIJE NO. 3 : REQUEST FOR A NEW TRIAL 

Plaintiffs claim the lower court erred in refusing to 

grant a new trial alleging an error in law occurred at trial. 

Section 25-11-102(7), MCA. Plaintiffs claim error in the 

trial court's refusal to instruct the jury on instructions 28 

through 31 and they challenge the sufficiency of the 

evidence supporting the jury verdict. Section 25-11-102 (6) , 

MCA. For purposes of our review, we recognize that the 

decision to grant or deny a new trial is within the sound 

discretion of the trial court, and will not be overturned 

absent a showing of manifest abuse of discretion. Walter v. 

Evans Products Co. (1983), 207 Mont. 26, 672 P.2d 613. 

Previously we examined the appropriateness of 

plaintiffs' equity instructions. As mentioned, these 

instructions were not supported by the evidence presented at 

trial, nor did the trial judge find plaintiffs entitled to 

the aid of equity. The opinion and order supports this 

conclusion. 

The lower court's discretion to grant a new trial for 

insufficiency of the evidence is exhausted when it finds 

substantial evidence to support the verdict. Lindquist TT. 

Moran (1983), 203 Mont. 268, 662 P.2d 281. The court may not 

grant a new trial only on the basis that it chose to believe 

one line of testimony different from that which the jury 

believed. Lyndes v. Scofield (1979), 180 Mont. 177, 589 P.2d 

1000. Yet, plaintiffs' argument was based almost entirely on 

this ground. As recognized by the lower court, the decision 

is a matter for the trier of fact --the jury. The request 

for new trial was properly denied. We find no abuse of 

discretion. 
ISSUE NO. 4: ATTORNEY'S FEES 

Finally, defendant has requested we impose sanctions 

for a frivolous appeal under Rule 32, M.R.App.P. We decline 

to do so. Where a reasonable ground for an appeal exists, no 

sanctions under Rule 32 will be imposed. Searight v. Cimino 

(Mont. 1988), 748 P.2d 948, 45 St.Rep. 46. 

Affirmed. 

We concur: "7