No. 14259
IN THE SUPREME COURT OF THE STATE OF MONTANA
1978
IN THE MATTER OF THE ESTATE
OF ANKER H. HOLM,
Deceased.
HARRY HOLM, JOE HOLM, ROBERT
E. HOLM, et al.,
Contestants and Appellants,
HELEN C. PARSONS,
Proponent and Respondent.
Appeal from: District Court of the Twelfth Judicial
District, Honorable Leonard Langen,
Judge presiding.
Counsel of Record:
For Appellants:
Burns, Solem & MacKenzie, Chinook, Montana
William Solem appeared, Chinook, Montana
Morrison, Ettien and Barron, Havre, Montana
Robert Morrison argued, Havre, Montana
For Respondents:
Sias, Ranstrom & Graham, Chinook, Montana
Donald Ranstrom and Arthur Graham argued,
Chinook, Montana
Submitted: November 21, 1978
Decided :
JAN
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Filed:
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Anker H. Holm died November 15, 1976, at the age of
78 years. On November 22, 1976, respondent, a niece of
decedent, offered for informal probate a will dated October
17, 1973, in which decedent left his entire estate to
respondent.
Appellants, all nieces and nephews of the decedent
then filed a formal petition for adjudication of intestacy,
determination of heirs and appointment of personal repre-
sentative. Respondent filed in response a formal petition
for probate of will, determination of heirs and testacy,
and appointment of personal representative. Appellants filed
objections to this petition alleging decedent was incompetent
to make a testamentary disposition and that decedent was under
the undue influence of respondent.
The matter was tried to a jury and at the conclusion
of appellants' case, the District Court, Twelfth Judicial
District, directed a verdict for proponent, holding there
was no undue influence. The jury returned a special verdict
finding decedent of sound mind when he executed the will in
question.
The evidence at trial showed that Anker Holm had little
formal education and spent most of his time on a homestead
north of Chinook. He had lived with his two older brothers
and all three were bachelors. The older brothers conducted
the business affairs of the ranch and managed the household,
with the decedent taking little part in this activity. The
oldest brother died in 1961.
From approximately 1969 decedent's mind appeared to be
failing and he seemed frequently confused and disoriented
to his neighbors. This condition was apparently exacerbated
by the death of his remaining brother in September 1973.
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Shortly thereafter, on September 24, 1973, decedent
executed a warranty deed to the United States for nearly
his entire ranch for no consideration. Decedent's niece,
respondent here, petitioned for and was appointed guardian
ad litem for decedent. An action was then instituted in
the United States District Court for the district of
Montana for the rescission of the warranty deed.
Testimony in the Federal District Court indicated
deceaent was suffering from an organic brain syndrome.
The psychiatrist who testified gave his opinion that decedent
was not competent to handle his own affairs since about
1969. The court found decedent not legally competent to
execute the deed in question and ordered its rescission or
in the alternative, payment of the fair market value of the
land. The findings of the Federal Court were admitted into
evidence in the will contest involved in this appeal.
The will which is the subject of this appeal was dated
October 17, 1973. It was similar to previous wills executed
individually by the Holm brothers in which they devised
everything to the surviving brothers and recited testator
intentionally left nothing to anyone else. In this case,
decedent's will left his entire estate to respondent and
made the same recitation of an intention not to leave any-
thing to anyone else. Respondent had come to the ranch in
1971 to keep and manage the house for decedent and his older
brother. Appellants had very limited contact with decedent
during his lifetime.
Evidence introduced at the will contest included
testimony from several psychiatrists, all of whom agreed
that decedent was suffering from chronic brain syndrome
(not a disease in itself, rather a collection of symptoms
resulting from diseases affecting the functions of the brain).
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Each of the doctors offered his opinion that decedent
was not competent at the time the will was drafted. However,
the two doctors who personally examined the deceased did
not question him about making a will and they indicated
there were degrees of impairment and incompetency due to
the syndrome. Respondent testified as an adverse witness
she was of the opinion, with respect to business affairs,
that at the time Anker Holm made the deed to the federal
government he did not have the mental capability to make
"a clear and intelligent and voluntary disposition of his
property".
Expert testimony was also presented at trial on behalf
of respondent emphasizing decedent may have been able to
comprehend the result of his actions in making the will in
question and that the syndrome from which decedent suffered
caused varying degrees of impairment. Lay testimony from
decedent's acquaintances was introduced indicating decedent
understood the nature of his land holdings, understood what
he was doing in making the will and was able to recognize
neighbors and carry out transactions with them.
Three issues are presented in this appeal. First, was
there sufficient, substantial credible evidence to support
the jury verdict that decedent was competent to make the
will in question? Second, did the District Court err in
admitting certain testimony objected to as without proper
foundation, and if so, was the error harmless? Finally, is
this an appeal without merit and thus appropriate for Rule
32, Mont.R.App.Civ.P., sanctions?
In considering the first issue, we are guided by a
very basic and limited standard of review. ". . . where
a fact issue or issues are presented before . . . a court
sitting . . . with a jury, and there is substantial evidence
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to support . . . the jury verdict, such . . . verdict
[is] conclusive on appeal." Johnson v. St. Patrick's
Hospital (1968), 152 Mont. 300, 448 P.2d 729, 733; Big
Sky Livestock, Inc. v. Herzog (1976), Mont . I
558 P.2d 1107, 1110, 33 St-Rep. 1232; In Re Bielenberg's
Estate (1930), 86 Mont. 521, 284 P. 546, 549; Murphy v.
Nett (1913), 47 Mont. 38, 130 P. 451, 456. We review the
evidence in a light most favorable to the prevailing party,
and we will reverse only when there is a lack of substantial
evidence introduced to support the results. In Re Dillenburg's
Estate (1960), 136 Mont. 542, 349 P.2d 573, 574; Big Sky
Livestock, Inc. v. Herzog, supra; Johnson v. St. Patrick's
Hospital, supra.
We have recently stated substantial evidence is evidence
such as will convince reasonable men and about which
reasonable men will agree supports the case of the prevailing
party. Cameron v. Cameron (1978), Mont . P.2d
, 35 St.Rep. 1723, 1729 (citing cases). Furthermore,
the evidence may be inherently weak and still be deemed
substantial, and substantial evidence may conflict with
other evidence presented. Campeau v. Lewis (1965), 144 Mont.
543, 398 P.2d 960, 962, 963; Cameron v. Cameron, supra.
Reviewing the record on appeal with these guidelines in
mind, we conclude there was substantial evidence to support
the jury verdict and thus affirm the judgment of the District
Court entered upon that verdict.
Respondent presented testimony from relatives,
neighbors and acquaintances of Anker Holm and expert medical
testimony. Though Anker Holm suffered from oddities of
habit and eccentricities, and exhibited some symptoms of
a failing mind, this evidence indicated he nevertheless
knew he owned cattle and land, was able to identify the
extent and boundaries of his land, and knew he had made
a will leaving his estate to the respondent, Helen Parsons.
The evidence also indicated that in April 1973, Anker Holm
and his surviving older brother had made reciprocal wills
naming each other as beneficiary, and subsequent to the
brother's death in September 1973, Anker approached his
attorney and executed an identical will save for naming
the respondent as beneficiary. We find this evidence to
meet the requirements of substantiality and to be sufficient
to support the jury verdict.
It is true there is considerable conflicting evidence
in the record. However, the credibility and weight given
to conflicting evidence is the province of the trier of
fact and not this Court. Cameron, supra; In Re Carroll's
Estate (1921), 59 Mont. 403, 196 P. 996. Having reviewed
the evidence and concluded it is substantial and sufficient
to support the jury verdict, our inquiry on this issue is
ended.
Although the first issue presented above is dispositive
of this appeal, the remaining issues deserve comment.
Appellants allege error on the part of the District Court
for admitting certain testimony of Grace Benbo, the secretary
of Anker Holm's now deceased attorney. The testimony
related to possible awareness on the part of the attorney
of the existence of the deed to the federal government at
the time the will in question was drafted. Appellants
allege this testimcny has bearing on the motives of the
individuals involved in the drafting of the will. However,
as respondent correctly points out, the court directed a
verdict in favor of respondent on the allegation of undue
influence and appellants have chosen not to appeal from
that action. Testimony relating to possible motives of
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individuals other than the decedent has no relevance
to an appeal concerned with the sufficiency of evidence
to support a jury verdict declaring the decedent competent.
Therefore, the error, if it existed, would have to be
deemed harmless under Rule 61, M0nt.R.Civ.P.
As to the final issue, respondent has mcved this Court
to grant money damages pursuant to Rule 32, Mont.R.App.
Civ.P. Rule 32 states this Court may, if satisfied from
the record and presentation of appeal that there are no
substantial or reasonable grounds for appeal, assess damages
if the appeal was for reasons of delay only. The specifica-
tions of error in this appeal relate to the sufficiency of
the evidence to support the jury verdict. Appellants
presented a very strong case for a finding of incompetency.
Respondent in her brief admits the evidence tended to su~port
the allegations of appellants. While it is true this Court
must give great deference to jury verdicts, we are also
obligated to examine the evidence supporting those verdicts
to test its sufficiency when asked to do so in an appeal
such as this. The specifications of error raised by appellants
are not groundless or unreasonable, thus Rule 32 damages
are not appropriate in this appeal and respondent's motion
is denied.
Judgment affirmed.
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Justice
We Concur:
Chief Justice