No. 12632
I N THE SUPREME COURT O THE STATE OF MONTANA
F
19 74
EUNICE WALLIN,
Opponent and A p p e l l a n t ,
-vs -
JESSE KINYON ESTATE,
Proponent and Respondent.
Appeal from: D i s t r i c t Court of t h e F o u r t e e n t h J u d i c i a l D i s t r i c t ,
Honorable LeRoy L. McKinnon, Judge p r e s i d i n g .
Counsel of Record:
For A p p e l l a n t :
Richard Conklin a r g u e d , W h i t e Sulphur S p r i n g s , Montana
F o r Respondent :
John V. P o t t e r , Jr. argued, White Sulphur S p r i n g s ,
Montana
Submitted: February 25, 1974
Decided : 14 1 9 9
~ i l e d :MAR 1 4 19#
Mr. J u s t i c e Frank I . Haswell d e l i v e r e d t h e Opinion o f t h e C o u r t .
T h i s i s a n a p p e a l from a judgment of t h e d i s t r i c t c o u r t
o f Meagher County, t h e Hon. LeRoy L. McKinnon p r e s i d i n g , g r a n t i n g
p r o p o n e n t ' s motion f o r a d i r e c t e d v e r d i c t a d m i t t i n g t h e w i l l o f
J e s s e Kinyon t o p r o b a t e .
The t e s t a t o r , J e s s e Kinyon, by w i l l d a t e d J a n u a r y 1 8 , 1971,
made b e q u e s t s of $1,000 e a c h t o t h r e e n i e c e s ( i n c l u d i n g c o n t e s t a n t
Eunice W a l l i n ) , $2,000 t o a c o u s i n , K i n g W a l t e r s , and bequeathed
t h e remainder of h i s e s t a t e t o t h e Mayn Cemetery D i s t r i c t . The
w i l l i n d i c a t e s t h e t e s t a t o r ' s r e a s o n s f o r l e a v i n g t h e remainder
of h i s e s t a t e t o t h e cemetery d i s t r i c t was t o make p o s s i b l e t h e
f e n c i n g , r e s t o r i n g and m a i n t a i n i n g t h e F o r t Logan b u r i a l ground
a t which h i s p a r e n t s were b u r i e d , and t o u s e t h e r e m a i n d e r t o
improve t h e Mayn cemetery a t which t h e t e s t a t o r wished t o be
buried .
The w i l l was d r a f t e d by J e n n i e L. Minder, t h e p u b l i c ad-
m i n i s t r a t r i x of Meagher County, w i t h t h e a i d of John V . P o t t e r , a n
a t t o r n e y who employed h e r a s h i s s e c r e t a r y . She w a s c a l l e d by
Kenneth Twichel, t h e c l e r k of c o u r t , t o h e l p t h e t e s t a t o r draw up
a will. By t h e t e r m s of t h e w i l l s h e was a p p o i n t e d e x e c u t r i x .
T e s t a t o r d i e d J a n u a r y 2 6 , 1971, a t a g e 7 9 , l e a v i n g approx-
i m a t e l y $30,000 i n h i s e s t a t e . A t t h e t i m e of h i s d e a t h , he was
r e s i d i n g i n a rest home i n Meagher County. H e l e f t s u r v i v i n g him
a s h i s n e a r e s t r e l a t i v e s e i g h t n i e c e s and nephews.
The p e t i t i o n f o r p r o b a t e of t h i s w i l l was c o n t e s t e d by
t h e t e s t a t o r ' s n i e c e , Eunice W a l l i n , a p p e l l a n t h e r e i n . Under a
former w i l l d a t e d J a n u a r y 1 7 , 1 9 6 7 , t e s t a t o r l e f t h i s e n t i r e
e s t a t e t o her.
A f t e r t h e d i s t r i c t c o u r t ' s d e n i a l of p r o p o n e n t ' s motion
f o r summary judgment, t h e m a t t e r went t o t r i a l b e f o r e a j u r y
A p r i l 4 , 1973, on i s s u e s o f (1) p r o p e r a t t e s t a t i o n of t h e w i l l ,
and ( 2 ) undue i n f l u e n c e . A t t h e beginning of t h e jury t r i a l ,
t h e d i s t r i c t c o u r t g r a n t e d p r o p o n e n t ' s motion i n l i m i n e t o
exclude testimony regarding t h e claimed i n v a l i d i t y of t h e char-
i t a b l e b e q u e s t t o t h e Mayn Cemetery D i s t r i c t , and t h e a l l e g e d
a c t i o n s of t h e executrix i n d r a f t i n g t h e w i l l as c o n s t i t u t i n g
t h e p r a c t i c e of l a w without a l i c e n s e .
Proponent p r e s e n t e d t e s t i m o n y of t h e two s u b s c r i b i n g
w i t n e s s e s (employees of t h e r e s t home where t e s t a t o r was b e i n g
c a r e d f o r ) , and t h e t e s t i m o n y of p r o p o n e n t a s t o h e r q u a l i f i c a -
t i o n s and w i l l i n g n e s s t o a c t a s e x e c u t r i x .
Both s u b s c r i b i n g w i t n e s s e s t o t h e w i l l acknowledged t h a t
p r i o r t o s i g n i n g i t , e a c h had t a k e n n o t i c e of t h e a t t e s t a t i o n
c l a u s e of t h e w i l l a p p e a r i n g above t h e i r s i g n a t u r e s and knew t h e
p u r p o s e f o r which t h e i r s i g n a t u r e was r e q u e s t e d .
Proponent t e s t i f i e d t h a t t h e t e s t a t o r had r e a d t h e f i r s t
d r a f t o f t h e w i l l h i m s e l f , t h a t a f t e r some minor c h a n g e s had been
made a t h i s r e q u e s t , s h e r e a d t h e f i n a l d r a f t t o him i m m e d i a t e l y
p r i o r t o h i s signing.
A t t e s t i n g w i t n e s s C l a r k t e s t i f i e d t h a t when s h e e n t e r e d
t h e t e s t a t o r ' s room p r i o r t o w i t n e s s i n g t h e w i l l , t h e t e s t a t o r
w a s " s i t t i n g i n a c h a i r w i t h a l i t t l e t a b l e i n f r o n t o f him";
t h a t t h e proponent a s k e d him " i f he u n d e r s t o o d what had been
r e a d t o him, and i f he wanted h e r t o r e - r e a d it and he s a i d no."
She f u r t h e r t e s t i f i e d t h a t t e s t a t o r was a s k e d " i f he was r e a d y
t o s i g n and he s a i d y e s . * * * He s i g n e d it and handed t h e pen t o
m e and I s i g n e d i t and handed it ( t h e pen) t o him and he handed
it t o E l l e n ( t h e o t h e r a t t e s t i n g w i t n e s s ) and s h e s i g n e d i t , t h a t
w a s i t . " The t e s t a t o r d i d n ' t s a y a n y t h i n g , he " j u s t looked up
a t m e and handed me t h e pen."
Nielson, t h e o t h e r a t t e s t i n g witness t e s t i f i e d t h a t t h e
t e s t a t o r s t a t e d "he knew what was i n i t and wanted t o g e t it o v e r
w i t h " ; t h a t when h e f i n i s h e d s i g n i n g , and a f t e r C l a r k had s i g n e d
and given the pen back to the testator, that "he turned around
and handed it (the pen) to me", and "just motioned that he wanted
me to sign it. "
Contestant's entire case was based on cross-examination
of the two subscribing witnesses, cross-examination of the pro-
ponent, and examination of the proponent as an adverse witness.
The only other evidence submitted by contestant was the prior
1967 will of the testator. Contestant's examination of proponent
was to the effect that her fee as public administratrix was set
at a higher figure by statute than that which a relative or other
ordinary person would receive as executor of the will. See section
91-628, R.C.M. 1947, and section 91-3407, R.C.M. 1947.
At the close of contestant's case, the district court found
there was no evidence upon which the jury could find against the
will and directed a verdict in favor of the proponent. Thereafter,
contestant's motion for a new trial was denied, and judgment was
entered admitting the last will and testament of Jesse Kinyon to
probate. This appeal followed.
Several issues are raised on appeal which may be summarized
as follows:
(1) Error in granting the motion in limine and in denying
a continuance based on surprise;
(2) Error in granting a directed verdict.
The day before trial a written motion in limine was filed
by proponent and served upon opposing coinsel. At the onset of
trial, proponent's motion was argued and granted. This motion
instructed:
I * * * Contestant, her attorney, and witnesses
'
on her behalf not to mention, not to refer to
either directly or indirectly and not to elicit
testimony respecting the claimed invalidity of the
bequest to the Trustees of the Mayn Cemetery
District, or the actions of the Proponent as
constituting the practice of law, acting as a
lawyer or otherwise imputing improper, unethical
or illegal conduct in that regard to the Proponent,
and absolutely prohibit and exclude such testimony,
reference or suggestion." (Emphasis added.)
Contestant then requested a continuance based on surprise aris-
ing from the granting of the motion in limine. This request
was denied.
Contestant argues that questioning in regard to the
matters excluded by the motion is relevant to proving undue in-
fluence as to the charitable gift and the execution of the will
itself. By granting the motion in limine and refusing to grant
a continuance contestant argued that two-thirds of her case could
not be presented.
Proponent argues that a motion in limine was necessary
to prohibit irrelevant and immaterial testimony which would not
tend to prove or disprove any issue in the case but would only
improperly influence the jury. He further argues that an objec-
tion during trial which was sustained would not remove the preju-
dicial effect on the jury of such comment.
Authority for the granting of a motion in limine rests
in the inherent power of the court to admit or exclude evidence
and to take such precautions as are necessary to afford a fair
trial for all parties. People v. Jackson, 95 Cal.Rptr. 919, 18
Cal.App.3d 504. Rule 16(6), M.R.Civ.P., permits the court in
its discretion to consider "* * * matters as may aid in the
disposition of the action." See 94 ALR2d 1087 and 20 Am Jur
Trials p. 441. (It should be noted here that there was no pre-
trial conference.)
The decision of the district court in excluding questions
at trial of the proponent's alleged practice of law was conducive
to the prevention of irrelevant, immaterial and prejudicial evi-
dence being heard by the jury. The purpose, and effect, of the
court's granting the motion in limine was to prevent that which
o c c u r r e d i n t h e c a s e of I n t h e M a t t e r of t h e E s t a t e of Powers,
- .
Mont , 515 P.2d 368, 30 St.Rep. 917, where many d i v e r s e
i s s u e s were a l l o w e d "* * * t o d i v e r t t h e t r i a l c o u r t from t h e
single issue * * *."
C o n t r a r y t o what was s t a t e d i n c o n t e s t a n t ' s b r i e f , t h e
motion d i d n o t p r e v e n t t h e i n t r o d u c t i o n o f e v i d e n c e which might
p r o v e t h a t t h e b e q u e s t t o t h e cemetery d i s t r i c t was " u n n a t u r a l "
or that the "* * * u n d e r t a k e r p r o f i t e d by t h e community c e m e t e r y
b e i n g improved * * *." I t was i n t r o d u c t i o n o f e v i d e n c e on t h e
i s s u e of t h e i n v a l i d i t y of s u c h b e q u e s t which was p r o h i b i t e d .
I t i s t h e l a w i n Montana t h a t such i s s u e s a s c h a r i t a b l e b e q u e s t s
and t h e i r v a l i d i t y i n conforming w i t h t h e common law "mortmain"
and s e c t i o n 91-142, R.C.M. 1947, may o n l y be d e t e r m i n e d i n appro-
p r i a t e proceedings a f t e r t h e w i l l i s formally admitted t o probate.
I n r e E s t a t e o f Murphy, 57 Mont. 273, 188 P. 146; I n r e ~ o b b i n s '
E s t a t e , 4 1 Mont. 39, 108 P. 7 .
I n t h e present case t h e d i s t r i c t c o u r t properly granted
s a i d motion. W a l s o h o l d t h a t t h e d e n i a l of a c o n t i n u a n c e d i d
e
n o t p r e j u d i c e t h e c o n t e s t a n t of t h e w i l l n o r deny h e r a f a i r
h e a r i n g on a d m i s s i o n of t h e w i l l t o p r o b a t e .
The second i s s u e p r e s e n t e d f o r r e v i e w i s whether t h e d i r -
e c t e d v e r d i c t a d m i t t i n g t h e w i l l t o p r o b a t e was p r o p e r .
I n h e r a p p e a l c o n t e s t a n t h a s made c o p i o u s r e f e r e n c e s t o
and l e n g t h y q u o t a t i o n s from d e p o s i t i o n s of t h e s u b s c r i b i n g w i t -
n e s s e s and from t h e t r a n s c r i p t of o r a l t e s t i m o n y g i v e n a t t h e
h e a r i n g on t h e motion f o r summary judgment p r i o r t o t r i a l . This
Court w i l l only consider t h e evidence introduced a t t r i a l i n
reviewing a t r i a l judge's o r d e r f o r d i r e c t e d v e r d i c t , s i n c e t h a t
was t h e o n l y e v i d e n c e b e f o r e t h e j u r y upon which t h e i r v e r d i c t
c o u l d be b a s e d . I f s u c h t r i a l e v i d e n c e was n o t s u b s t a n t i a l i n
i t s e l f t o s u s t a i n t h e c o n t e s t a n t ' s burden of p r o o f , t h e o r d e r
directing a verdict against the contestant will be upheld.
In the Matter of the Estate of Powers, Mont . , 515 P.2d
368, 30 St.Rep. 917; In re Estate of Hall v. Milkovich, 158
Mont. 438, 492 P.2d 1388.
This Court in Estate of Maricich, 145 Mont. 146, 400
P.2d 873, and recently reiterated in Hall, set forth five elements
to be considered in determining undue influence. In the -
Hall
case the judgment granting a directed verdict was reversed and
a new trial ordered. That case is clearly distinguishable on
its facts. In the present case the fee Minder was to receive as
executrix and the charitable bequest was the essence of contest-
ant's case to prove undue influence. We view this as insuffi-
cient to set aside the directed verdict.
This Court has often stated that mere suspicion that
undue influence may have or could have been brought to bear is
not sufficient to justify setting aside a will and that it is not
enough to show that a person had an opportunity to exercise such
influence. It must appear that such influence was actually exer-
cised and that it was pushed to such an extent that the resulting
testamentary provisions were not those of the testator's will but
those of the parties exercising such influence. Nor does Montana
follow the rule that the burden of proof shifts from contestant
to proponent upon showing of a confidential relationship or active
participation in procuring execution of a will between or by a
person who profits thereby. Estate of Cocanougher, 141 Mont. 16,
375 P.2d 1009. There was no reason, therefore, in this case to
require the proponent to proceed with further proof, and the grant-
ing of the motion for a directed verdict was not an abuse of the
trial court's discretion.
Contestant also questions the execution of the will as
not meeting the statutory requirements of section 91-107, R.C.M.
1947, i n t h a t t h e t e s t a t o r d i d n o t v e r b a l l y d e c l a r e t o t h e
a t t e s t i n g w i t n e s s e s t h a t t h i s was h i s l a s t w i l l and t e s t a m e n t .
T h i s C o u r t h a s s t a t e d i n t h e p a s t t h a t t h e d e c l a r a t i o n s by t h e
t e s t a t o r need n o t be i n t h e s e e x a c t t e r m s , b u t may be i m p l i e d
from h i s c o n d u c t and t h e a t t e n d a n t c i r c u m s t a n c e s . Williams v .
Swords, 129 Mont. 1 6 5 , 284 P.2d 674; E s t a t e o f Rudd, 1 4 0 Mont.
C.f.
1 7 0 , 3 6 9 P.2d 5 2 6 ; / E s t a t e of B i r k e l a n d , -
Mont - -
I P.2d .
, 31 St.Rep. 198. There i s t e s t i m o n y i n t h e r e c o r d by t h e
a t t e s t i n g w i t n e s s e s t h a t i n d i c a t e s t h a t t h e y knew what t h e y were
s i g n i n g and t h a t t e s t a t o r was a l s o w e l l aware. H i s conduct dur-
i n g t h e e x e c u t i o n a s s e t f o r t h above i n t h e f a c t s was s u f f i c i e n t
t o m e e t t h e s t a t u t o r y requirements.
For t h e s e r e a s o n s t h e d i s t r i c t c o u r t ' s g r a n t i n g a d i r e c t e d
v e r d i c t and a d m i t t i n g t h e w i l l t o p r o b a t e i s a f f i r m e d .
Justice
i
W e concur:
Justices
Mr. J u s t i c e John Conway H a r r i s o n d i s s e n t i n g .
I dissent.