No. 12608
I N THE SUPREME COURT O THE STATE OF M N A A
F OTN
1974
HOWARD P, B A K E and DORIS R. YENNE,
L C MR
P l a i n t i f f s and Respondents,
BOYD P. BLACKMER, i n d i v i d u a l l y , and a s
Executor of t h e E s t a t e o f Fannie I.
Blackmer, Deceased; and LORRAINE E. BLACKMER,
Defendants and Appellants.
Appeal from: District Court o f t h e Eleventh J u d i c i a l D i s t r i c t ,
Honorable Robert C. Sykes, Judge p r e s i d i n g .
Counsel o f Record:
For A p p e l l a n t s :
Rognlien, Hash, J e l l i s o n and O'Brien, K a l i s p e l l ,
Montana
Kenneth E. 0 ' ~ r i e nargued, K a l i s p e l l , Montana
For Respondents:
Murphy, Robinson, Heckathorn and P h i l l i p s , K a l i s p e l l ,
Montana
I. James Heckathorn argued, K a l i s p e l l , Montana
Submitted: A p r i l 25, 1974
Decided: -
AUG 12 4.1.?
Mr. Justice Gene B. Daly delivered the Opinion of the Court.
This is an appeal from the district court's judgment
declaring the last will and testament of Fannie Blackmer and
the execution of certain deeds by her to be null and void.
Plaintiffs brought the action to have the will declared null
and void because of Fannie Blackmer's mental incompetence at
the time of making the will, and alleged undue influence exerted
upon her by defendants.
These facts are not in dispute: Lucian and Fannie
Blackmer were long time residents of the Flathead area. They
had three children, Doris Yenne, Howard and Boyd. The Blackmers
accumulated considerable holdings, including four hundred acres
of land with two dwelling units; approximately $26,501 in United
Funds; United States bonds in joint tenancy with son Howard in
the face amount of $9,400 with accumulated value totaling $15,745;
bank accounts in excess of $5,000; and miscellaneous farm machin-
ery, equipment and tools. The real property and machinery were
owned in the name of the father, Lucian Blackmer. The bonds had
been put in Lucian and Howard's name at the time they were pur-
chased while Howard was in the military service.
In 1959, Lucian and Fanny Blackmer made wills leaving their
property to each other, if living. But if deceased, then 160
acres to Boyd, 160 acres to Doris, and 80 acres (including the
house) to Howard who would also get the joint tenancy bonds on
Lucian's death. Lucian recited in his will that although it
appeared Howard was getting less, he actually was not, because
of the provisions relative to the bonds.
In July 1968, the mother Fannie was hospitalized and
diagnosed as having arterio sclerosis generalized, cerebral arterio
coronary sclerosis, and senility. Upon discharge from the hospital
she went to the home of son Boyd and his wife Lorraine (defendants
herein) where she resided until admitted to the hospital upon
her final illness in May 1970.
The father Lucian Blackmer continued to live in his own
home. He remained keen and alert, taking an active part in the
management of the farm until his death on November 22, 1969, at
the age of 89.
The facts in contention are numerous and concern the com-
petency, undue influence and unnatural distribution of Fannie's
second will dated December 29, 1969,and the execution and delivery
of certain deeds by Fannie, executed on February 13, 1970.
Both plaintiffs and defendants called numerous witnesses
to testify as to Fannie's mental competency and whether or not
there was undue influence at the time she executed her will dated
December 29, 1969. Included among the witnesses were her attorney,
doctor, friends, relatives, and even casual acquaintances. All
the witnesses testified that Fannie was a neat person and always
took care of herself; that she always knew them and she could
carry on an intelligent conversation. All the witnesses testi-
fied that she looked old, and had poor eyesight. Some testified
that she became confused, especially as to time; that she was
unable to dial the telephone herself because of her eyesight and
at times she became upset. There was testimony that at one time
she was upset because of a misunderstanding between her daughter
Doris and herself over whether she had to sell her furniture.
Other testimony was that she became upset when her daughter-in-
law, Howard's wife, stated she tried to lock her grandson in the
bathroom to keep him from going outside
There was testimony that the father, Lucian, conducted
all the business of the family and Fannie's business management
was limited to the running of the kitchen. But there was also
testimony by Boyd Blackmer that Lucian always talked decisions
over with Fannie before making them.
The facts relevant to the actual making of the will are
more limited. Lorraine Blackmer, defendant, testified that her
father-in-law, before his death, had gone to see D. Gordon
Rognlien, his attorney, twice to change his will but he was un-
I
able to see him on either occasion. She did not testify as to
how her father-in-law wanted to change his will. Boyd Blackmer
testified that Fannie said she wanted to change her will to read
the way Lucian wanted the property distributed. Boyd was to get
an additional 60 acres to prevent his septic tank from being cut
in half. But, upon further testimony Boyd stated that no addi-
tional acres from the original disposition of property in the
first will was necessary to prevent his septic tank from being
cut in half.
It is undisputed that Boyd drove Fannie to her attorney,
D. Gordon Rognlien, on the day she discussed drawing up a new
will; that changing her will was the sole purpose of her visit
to Rognlien's office and that Boyd accompanied her every time
that she went to see her attorney. Rognlien testified that Boyd
did not sit in on the first meeting between himself and Fannie
when she gave him instructions on how the change in the will was
to be accomplished. But Boyd testified that he was present at
all the meetings between Fannie and Rognlien. Rognlien testified
that he advised Fannie to use deeds to convey her property; that
she conveyed 100 acres to Doris Yenne by deed, and then conveyed
the remainder of the land to Boyd by deed. These deeds were in-
advertently recorded, so Doris and Boyd reconveyed to Fannie and
she then executed three new deeds, one conveying 100 acres to
Doris which was placed in escrow, and two to Boyd, one conveying
property outright, the other placed in escrow with Doris' deed.
At the time of making the first deeds, Fannie also made a new will
leaving the remainder of her property not conveyed by the deeds
to her children equally. This included personal property valued
There was much dissatisfaction expressed to Rognlien by
Doris Yenne and her husband over the distribution of the property.
Rognlien then called a meeting of Fannie, Boyd, Doris and Howard.
With all of them present, Doris asked Fannie if this was how she
wanted things done, to which Fannie replied "This is just the way
I want it."
The trial court's finding of fact No. 20 stated "That at
no time was Fannie acting under duress, nor was she insane" and
finding of fact No. 21 stated "That on December 29, 1969, and
on February 13, 1970, by reason of senility, her serious condi-
tion and love of Boyd and Lorraine, Fannie I. Blackmer was subject
to undue influence. That by reason of the same, an extremely
close and confidential relationship existed between Fannie, Boyd
and Lorraine."
Then in its conclusions of law the court stated:
"1. That a fiduciary or confidential relationship
existed between Mrs. Blackmer, Boyd and Lorraine
Blackmer from the time of her release from the
hospital in 1968 until the time of her death;
"2. That because Mrs. Blackmer was 85 years of
age, frail in body, nearly blind, dependent upon
others for her well-being, inexperienced in busi-
ness affairs, and suffered from cerebral arterio-
sclerosis and senility, the nature of the trans-
actions and the reasons given therefor coupled
with the confidential relationship, gives rise to
a presumption that the Will and Deeds were not
freely, fairly and understandably made.
"3. That the delivery of deeds by Fannie I.
Blackmer to D. Gordon Rognlien, to be held in
escrow, constituted a good, valid and legal deliv-
ery of said Deeds."
Defendants present five issues for review, however our
determination can rest on two issues.
1. Whether the judgment of the district court is supported
by substantial credible evidence?
2. Does the court's conclusion of law No. 2 give rise
to a presumption of undue influence, or a presumption that a
deed and will were not understandably and freely made?
Argument by the parties concerns the connotation of the
presumption as used by the trial court in its conclusion of law
No. 2. Disregarding matters raised outside the record we will
only comment that these circumstances in Montana raise no pre-
sumption of any kind. Undue influence or incompetence is never
presumed and must be proven, like any other fact. In re C o m -
nougher's Estate, 141 Mont. 16, 375 P.2d 1009.
In Estate of Maricich, 145 Mont. 146, 157, 400 P.2d 873,
this Court said:
"'We agree that the right to make disposition of
one's property by will is a right guaranteed by
law and is as valuable as any other property right;
and that the beneficiaries under a will are entitled
to protection just as are other property owners * * * . ' "
We also stated in Maricich that the law in the cases
concerning undue influence places upon the contestant the burden
of proof in showing substantial evidence of undue influence and
recited a five point test to determine whether or not there is
undue influence in executing a will. The five points are:
( 1 ) Confidential relationship of the person
attempting to influence the testator;
"(2). The physical condition of the testator as
it affects his ability to withstand the influence;
" ( 3 ) . The mental condition of the testator as it
affects his ability to withstand the influence;
" (4). The unnaturalness of the disposition as it
relates to showing an unbalanced mind or a mind
easily susceptible to undue influence, and
"(5). The demands and importunities as they may
affect particular testator taking into consideration
the time, the place, and all the surrounding cir-
cumstances. "
Undue influence is defined by section 13-311, R.C.M. 1947,
1 . In the use, by one in whom a confidence is
reposed by another, or who holds a real or
apparent authority over him, of such confidence
or authority for the purpose of obtaining an
unfair advantage over him;
"2. In taking unfair advantage of another's weak-
ness of mind; or
"3. In taking a grossly oppressive and unfair
advantage of another's necessities or distress."
It is undisputed that Fannie Blackmer lived with defend-
ants from 1968 until her death in 1970. This would provide ample
opportunity for the exercise of undue influence by defendants on
Fannie. But a showing of opportunity is not enough. This Court
stated in Hale v. Smith, 73 Mont. 481, 488, 237 P. 214:
" * * * It is not sufficient that the testator
may have been influenced by the beneficiary in
consequence of their fiduciary relationship in
the ordinary affairs of life or that he lived
with the beneficiary at the time of the execu-
tion of the will, in consequence of which she may
have had better opportunity than others to in-
gratiate herself with him. Mere general influence
in the affairs of life or method of living at the
time of the execution of a will by a testator is
not proof of undue influence in the contemplation
of our statute, and in order to establish it as a
fact, it must be shown by proof that it was exer-
cised upon the mind of the testator directly to
rocure the execution of the will. Mere suspicion
!a
ht undue influence may have or could have been
brought to bear is not sufficient. It is never
presumed, and must be proven like any other fact. * * *"
(Emphasis supplied. )
Therefore, it must not only be shown that Fannie lived
with defendants, but that defendants exercised undue influence
upon Fannie in the execution of the will and the deeds. No such
proof was made here.
Much testimony was elicited from witnesses concerning
Fannie's mental and physical health. She was an elderly person;
she was 85 years of age. Many of her problems were because of
her age, including poor eyesight, a sometimes failing memory,
occasional confusion, and a diagnosis of senility, arterio
s c l e r o s i s g e n e r a l i z e d , and c e r e b r a l a r t e r i o c o r o n a r y s c l e r o s i s .
But a l l t h i s d o e s n o t make F a n n i e Blackmer t e s t a m e n t a l l y i n -
capacitated.
I n E s t a t e of Bodin, 1 4 4 Mont. 555, 560, 398 P.2d 616,
a c a s e i n which t h e f a c t s a r e q u i t e similar b u t more f l a g r a n t
t h a n t h e i n s t a n t c a s e , t h i s Court h e l d 7 9 y e a r s o l d Minnie Bodin
t o be m e n t a l l y competent even though s h e made h e r w i l l from h e r
h o s p i t a l b e d , d y i n g from c a n c e r and r e c e i v i n g n a r c o t i c s and o t h e r
medication t o r e l i e v e her pain. The C o u r t s t a t e d :
"'And a t e s t a t o r i s competent i f he i s p o s s e s s e d
of t h e mental capacity t o understand t h e n a t u r e
of t h e a c t , t o u n d e r s t a n d and r e c o l l e c t t h e n a t u r e
and s i t u a t i o n of h i s p r o p e r t y and h i s r e l a t i o n s t o
p e r s o n s h a v i n g c l a i m s on h i s bounty whose i n t e r e s t s
are a f f e c t e d by h i s w i l l . In r e Smith's Estate,
2 0 0 Cal. 152, 252 P . 325. The " t e s t a t o r must have
s u f f i c i e n t s t r e n g t h and c l e a r n e s s o f mind and memory
t o know, i n g e n e r a l , w i t h o u t prompting, t h e n a t u r e
and e x t e n t of t h e p r o p e r t y o f which h e i s a b o u t t o
d i s p o s e , and n a t u r e of t h e a c t which he i s a b o u t t o
perform, and t h e names and i d e n t i t y o f t h e p e r s o n s
who a r e t o be t h e o b j e c t s o f h i s bounty, and h i s
r e l a t i o n towards them." Page on W i l l s (2d Ed.)
5141. [Citing cases.]'"
Rognlien t e s t i f i e d c o n c e r n i n g h i s i n t e r v i e w w i t h F a n n i e
a b o u t h e r w i l l , and t h e p r e p a r a t i o n o f t h e d e e d s : "Due t o t h e
f a c t o f h e r a g e , due t o t h e f a c t of h e r e y e s i g h t and due t o t h e
f a c t t h a t s h e i n d i c a t e d a d e s i r e t o make d i s t r i b u t i o n u n e q u a l l y
among h e r c h i l d r e n I was v e r y c a r e f u l t o examine h e r , t a l k t o
h e r and t o be s u r e t h a t s h e knew e x a c t l y what s h e was d o i n g and
what s h e wanted done. So I d i d make a s p e c i a l e f f o r t t o c o n v i n c e
myself t h a t s h e was c o m p l e t e l y competent b e f o r e I p r e p a r e d h e r
deeds. * * *" When l a t e r asked i f he f e l t F a n n i e Blackmer w a s
competent a t t h e t i m e of e x e c u t i n g t h e w i l l and d e e d s , Rognlien
answered: " I t i s my o p i n i o n t h a t s h e was c o m p l e t e l y competent
and knew the n a t u r e of the b u s i n e s s a t hand and e a c h t i m e t h a t I
had o c c a s i o n t o t a l k t o h e r a b o u t t h i s .
A s s t a t e d h e r e t o f o r e t h e r e i s no d o u b t t h a t F a n n i e Black-
m e r was o l d and had i n f i r m i t i e s a s s o c i a t e d w i t h o l d a g e . These
matters must be taken into consideration and correlated with the
acts of influence presented to determine if in each case the
acts amount to undue influence. Murphy v. Nett, 47 Mont. 38,
130 P. 451, cited and approved in In re Estate of Hall v. Milko-
vich, 158 Mont. 438, 492 P.2d 1388. Also the acts of influence
must be as defined by this Court earlier in this opinion, and
not mere suspicion, opportunity, love or confidential relation-
ship or bad feeling or hate. An examination of the entire record
before us fails to reveal substantial evidence of facts that
support the findings and conclusions of the trial court.
The final question presented for consideration is whether
there was sufficient delivery of the two escrow deeds executed by
Fannie to Doris Yenne and Boyd Blackmer. Defendants' exhibit F
shows that the deeds were delivered to Gordon Rognlien, Charles
Hash, or Kenneth OIBrien, with these instructions:
"I am delivering to you, or anyone of you two deeds,
one to my daughter, Doris Yenne, and one to my son,
Boyd Blackmer.
"I am making this delivery to my son and daughter
pursuant to Sec. 67-1514 of the 1947 Revised Codes
of the State of Montana, which is a constructive
delivery. In making this delivery I am placing
these deeds out of my possession and beyond my
control.
"Both my said son and daughter know of this delivery
and have given their consent thereto.
"Upon my death you are instructed to deliver the
said deeds to the grantees named therein.
"Dated this 23rd day of February 1970."
These instructions were signed by Fannie Blackmer.
Plaintiffs claim that there was no intent to make a present
transfer of title to the property; that there is a difference be-
tween a delivery under section 67-1512, R.C.M. 1947, which defines
escrow delivery and section 67-1514, R.C.M. 1947, which defines
constructive delivery. We find there is no need to discuss the
difference.
It is sufficient to say that this delivery comes within
the meaning of section 67-1512 and is therefore a sufficient
delivery. In plymale v. Keene, 76 Mont. 403, 409, 247 P. 554,
it was stated:
" * * * if a deed, fully executed and so drawn as
to convey a present title, is deposited by the
grantor with a third person with directions to
deliver it to the grantee after the death of the
grantor, and the grantor in making such deposit
reserves no power to recall or modify the same,
or thereafter to control in any manner the dis-
position of the deed, the delivery will be deemed
complete as of the date the deed is deposited.
[Cases cited.] "
The judgment of the trial court is reversed and the
cause remanded for further proceedings consistent with this
opinion.
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/" Justice
We concur: I
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Chief Justice