Estate of Powers

No. 12417

I N THE SUPREME COURT OF THE STATE OF M N A A OTN

I N THE MATTER OF THE ESTATE O BUDOIN E. POWERS, Deceased. F

Appeal from: D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t , Honorable Robert Wilson, Judge p r e s i d i n g .

Counsel o f Record:

For Appellant :

B e r g e r , Anderson, S i n c l a i r and Murphy, B i l l i n g s , Montana James J . S i n c l a i r a r g u e d , B i l l i n g s , Montana Crowley, K i l b o u r n e , Haughey, Hanson and G a l l a g h e r , B i l l i n g s , Montana C a l e Crowley a r g u e d , B i l l i n g s , Montana

F o r Respondent:

Robert C . Brogan, B i l l i n g s , Montana K e e f e r and Roybal, B i l l i n g s , Montana N e i l K e e f e r a r g u e d , B i l l i n g s , Montana

Submitted: September 1 2 , 1973

Decided :QCT 3 0 1973 BCT 3 0 1973 Filed :

M r . J u s t i c e Wesley C a s t l e s d e l i v e r e d t h e Opinion of t h e Court,

This i s an a p p e a l from a judgment denying t h e p r o b a t e o f t h e w i l l of Budoin E. Powers, d a t e d December 9 , 1971. An e a r l i e r w i l l d a t e d December 18, 1969, was admitted t o probate. A motion f o r new t r i a l was denied. The w i l l c o n t e s t was t r i e d b e f o r e a j u r y which r e t u r n e d a s p e c i a l v e r d i c t f i n d i n g t h a t Budoin Powers was n o t competent t o execute a w i l l on December 9 , 1971; t h a t undue i n f l u e n c e had been e x e r t e d on h e r ; t h a t t h e w i l l was procured by f r a u d ; t h a t t h e deceased d i d n o t acknowledge t o t h e w i t n e s s e s t o t h e w i l l t h a t i t was h e r l a s t w i l l and t e s t a m e n t ; and, t h a t i t was n o t p r o p e r l y executed, More w i l l be s a i d l a t e r i n t h i s Opinion concerning t h e s p e c i a l v e r d i c t . Four i s s u e s a r e r a i s e d on a p p e a l : (1) F a i l u r e of t h e t r i a l c o u r t t o g r a n t proponents' motion f o r a d i r e c t e d v e r d i c t , made b o t h a t t h e c l o s e of c o n t e s t a n t s ' c a s e and a t t h e c l o s e of a 1 1 of t h e evidence on t h e grounds t h a t t h e r e was no competent s u b s t a n t i a l evidence s u p p o r t i n g a h o l d i n g of i n v a l i d i t y of t h e w i l l .

(2) The submission of a s p e c i a l v e r d i c t when t h e r e w a s no competent s u b s t a n t i a l evidence t o w a r r a n t c o n s i d e r a t i o n by a jury.

(3) The s p e c i a l v e r d i c t was i n d i r e c t c o n f l i c t w i t h a given instruction.

(4) The g i v i n g and r e f u s i n g of c e r t a i n j u r y i n s t r u c t i o n s , A s background f o r our d i s c u s s i o n , t h e following f a c t s a r e s e t forth: Budoin Powers was married twice d u r i n g h e r l i f e t i m e , g i v i n g b i r t h t o two s e p a r a t e and d i s t i n c t f a m i l i e s . She was divorced from Clarence Shelden around 1940, and had s i x small c h i l d r e n t o support. She subsequently married T. R. Powers, a man 23 y e a r s h e r s e n i o r and an e s t a b l i s h e d rancher. The Shelden c h i l d r e n ap- p a r e n t l y l i v e d on t h e Powers ranch only u n t i l they were o l d enough

t o go on t h e i r own. They then went t h e i r s e p a r a t e ways and t h e r e was l i t t l e communication between them and t h e i r mother f o r many years. Budoin E. Powers had f i v e c h i l d r e n by h e r marriage t o Thomas R. Powers: P a t r i c k Powers, Penny Powers (Mrs. Anthony Bear ~on't Walk), Paul Powers, Danny Powers and Darwin Powers. These c h i l d r e n were r a i s e d on t h e Powers ranch n e a r Wyola. After the d e a t h of T. R. Powers t h e family continued t o o p e r a t e t h e ranch u n t i l i t was u l t i m a t e l y l e a s e d i n 1967 t o L i t t l e Horn Land and Livestock Company of Wyola. T. R. Powers, t h e f a t h e r of c o n t e s t a n t s , d i e d i n 1964. His l a s t w i l l and testament d a t e d May 22, 1958, l e f t a n o t h e r ranch s i t u a t e i n Glacier County i n t r u s t f o r h i s f i v e c h i l d r e n born of h i s marriage t o Budoin Powers. The remainder of h i s e s t a t e was l e f t t o Budoin Powers, w i t h a proviso t h a t i f she predeceased him t h e remainder would b e h e l d i n t r u s t f o r t h e f i v e Powers c h i l d r e n t o b e d i s t r i b u t e d when t h e youngest reached t h e age o f majority. Budoin Powers l i k e w i s e executed a w i l l i n 1958. Her e n t i r e e s t a t e a t t h a t time was l e f t t o t h e f i v e Powers c h i l d r e n i n t r u s t t o be d i s t r i b u t e d when t h e youngest a t t a i n e d t h e age of m a j o r i t y . A f t e r t h e d e a t h of T. R. Powers, Budoin Powers executed a second w i l l on January 19, 1967. This w i l l l e f t $5,000, payable o u t of l i f e i n s u r a n c e proceeds o n l y , t o each of t h e s i x Shelden children. The remainder of h e r e s t a t e was placed i n t r u s t f o r t h e f i v e Powers c h i l d r e n t o b e d i s t r i b u t e d t o them when t h e youngest a t t a i n e d t h e age of m a j o r i t y . On December 1 8 , 1969, Budoin Powers executed a t h i r d w i l l . I n t h i s w i l l she, f o r t h e f i r s t time, enumerated t h e s i x Shelden children. The 1969 w i l l l e f t c e r t a i n r o y a l t y and mineral i n t e r e s t s t o Montana S t a t e College a t Bozeman and t o t h e Shelden c h i l d r e n . She a g a i n l e f t t o t h e Shelden c h i l d r e n t h e sum of $5,000 each, payable o u t of l i f e i n s u r a n c e proceeds only. The remainder of h e r

e s t a t e was l e f t t o t h e Powers c h i l d r e n , excluding P a t r i c k , i n t r u s t , f o r d i s t r i b u t i o n when t h e youngest a t t a i n e d t h e age of m a j o r i t y . O December 9 , 1971, Budoin Powers executed y e t a n o t h e r w i l l . n I n t h i s w i l l , w i t h t h e s o l e exception of a $10,000 t r u s t f o r Penny Bear, t h e Powers c h i l d r e n were d i s i n h e r i t e d . Budoin Powers d i e d i n B i l l i n g s , Montana, on June 20, 1972, a t t h e age of 60. O June 27, 1972, one week a f t e r h e r d e a t h , n p e t i t i o n f o r probate o f t h e w i l l d a t e d December 9 , 1971, was f i l e d i n Yellowstone County. On J u l y 7 , 1972, t h e f i v e c h i l d r e n of Budoin Powers and T. R. Powers f i l e d a p e t i t i o n i n o p p o s i t i o n t o p r o b a t e of t h a t w i l l . The 1958 w i l l of T. R. Powers named Budoin Powers a s T r u s t e e of t h e G l a c i e r County ranch. The trust named t h e Powers c h i l d r e n a s b e n e f i c i a r i e s and was t o t e r m i n a t e i n September 1973, when t h e youngest c h i l d reached t h e age of m a j o r i t y . A s i t happened t h e age of m a j o r i t y was lowered by l e g i s l a t i v e a c t i o n and t h e t r u s t was terminated sooner. The w i l l being c o n t e s t e d h e r e was executed on December 9 , 1971. The t e s t a t r i x , Budoin Powers, executed documents e f f e c t i v e l y d i s t r i b u t i n g t h e G l a c i e r County ranch t r u s t a s s e t s t o t h e Powers c h i l d r e n on December 8 , 1971. A s t o t h e w i l l of December 9 , 1971, t h e e v e n t s l e a d i n g t o i t s e x e c u t i o n appear from t h e r e c o r d : J. H. Kilbourne, E s q u i r e , had d r a f t e d p r i o r w i l l s f o r b o t h

T. R. Powers and Budoin E. Powers, i n c l u d i n g t h e w i l l of December 18, 1969 o f Budoin Powers. The w i l l h e r e c o n t e s t e d was d r a f t e d i n f i n a l form on November 1 8 , 1971, although n o t executed by Budoin E. Powers u n t i l December 9 , 1971. The two w i t n e s s e s were Robert Lee and Kemp Wilson, a t t o r n e y s a s s o c i a t e d w i t h J. H. Kilbourne, and w i t h t h e law f i r m of Crowley, Kilbourne, Haughey, Hanson & Gallagher. Kilbourne f i r s t r e f e r r e d Budoin E. Powers t o Robert Lee on l e g a l m a t t e r s i n t h e s p r i n g of 1971. A t t h a t t i m e Lee r e p r e s e n t e d h e r i n a g u a r d i a n s h i p proceeding; i n a municipal c o u r t c a s e ; and had c o n s i d e r a b l e c o n t a c t w i t h h e r concerning t h e handling of t h e

Glacier County ranch t r u s t c r e a t e d i n t h e w i l l of T. R. Powers f o r t h e b e n e f i t of t h e Powers c h i l d r e n , c o n t e s t a n t s here. O October 1 7 , 1971, Budoin Powers was taken t o t h e i n t e n - n s i v e c a r e u n i t a t t h e h o s p i t a l a s a r e s u l t of a h e a r t a t t a c k . O October 20, 1971, Kilbourne requested Lee t o go s e e h e r con- n cerning a new w i l l . Lee went t o t h e h o s p i t a l on t h a t d a t e , advised t h e h o s p i t a l personnel t h a t he had l e g a l matters t o d i s - c u s s with Budoin Powers and was permitted e n t r y i n t o t h e i n t e n s i v e c a r e u n i t f o r t h a t purpose. Here, we d i g r e s s somewhat t o b r i n g i n o t h e r f a c t o r s . Proponent Thelma Shelden Daly, 37 years of age, l e f t t h e Powers ranch when she was 13 o r 14 years of age and went t o l i v e with a s i s t e r i n Idaho. When she was almost 16 she became gain- f u l l y employed i n S e a t t l e , Washington f o r about four y e a r s , u n t i l she married. She returned every year t h e r e a f t e r t o v i s i t h e r mother. She stayed a t t h e Rimrock Lodge and a t h e r h a l f s i s t e r ' s home (Penny Powers Bear), during h e r mother's i l l n e s s . Shortly a f t e r h e r mother's f i r s t h e a r t a t t a c k , a t h e r mother's r e q u e s t , she removed a l l of h e r mother's belongings from penny's home. When h e r mother l e f t t h e h o s p i t a l on November 4 , 1971, h e r mother took t h e things back t o Penny's home where she went t o l i v e because t h e doctor s p e c i f i e d t h a t she should be accompanied by someone. The day before Bedoin powers' second h e a r t a t t a c k , November 18, 1971, she went t o a motel t o s t a y with Thelma Shelden Daly and i t was from t h a t motel t h a t she c a l l e d M r . Lee. A t t h a t time Thelma was planning t o take h e r mother back t o Portland t o s t a y with her. A f t e r h e r mother had h e r second h e a r t a t t a c k on November 19, Thelma stayed i n B i l l i n g s u n t i l November 31, a t which time she r e t u r n e d t o h e r home i n Portland and d i d n o t r e t u r n t o B i l l i n g s u n t i l December 23. O October 20, 1971, when Lee went t o t h e h o s p i t a l t o t a l k n w i t h Budoin Powers, Thelma Shelden Daly was i n t h e h o s p i t a l c o r r i d o r when he a r r i v e d , b u t Lee alone went i n t o t h e i n t e n s i v e c a r e u n i t

t o t a l k t o Budoin Powers. Exhibit 1 i s t h e handwritten n o t e Lee made during h i s conversation with Budoin Powers; Exhibit 2 i s t h e n o t e Lee d i c t a t e d on t h e same day i n h i s o f f i c e addressed t o Kilbourne covering h i s conversation with Budoin Powers. Budoin Powers could n o t remember b i r t h d a t e s of a l l eleven of h e r c h i l d r e n , nor t h e married name of one of t h e Shelden c h i l d r e n who had been divorced and remarried more than once. She was n o t , however, confused; and Lee had no d i f f i c u l t y nor problem conversing with h e r . She t o l d Lee t o g e t t h e b i r t h d a t e s from t h e 1969 w i l l , o r from Thelma Daly who would a s s i s t him. Lee was n o t c e r t a i n whether o r n o t he g o t t h e b i r t h d a t e s from Thelma, from Budoin Powers, o r from t h e old w i l l . He d i d know d e f i n i t e l y t h a t he had n o t t o l d Thelma Daly about t h e w i l l o r i t s c o n t e n t s ; t h a t Thelma Daly d i d n o t h e l p him i n preparing t h e w i l l i n any way; t h a t she might o r might n o t have entered t h e h o s p i t a l room while he was t h e r e , because Budoin Powers occasionally c a l l e d e i t h e r Thelma o r nurses i n f o r various matters during t h e times t h a t Lee was t h e r e ; b u t he knew d e f i n i t e l y t h a t Thelma was never i n t h e room when he d i s - cussed with Budoin Powers t h e s u b s t a n t i v e d i s p o s i t i v e provisions of t h e w i l l . Lee had f a c t u a l i n v e s t i g a t i o n s t o make t o c a r r y out t h e wishes expressed by Budoin Powers b u t had an i n i t i a l f i n a l d r a f t ready about October 28, when they expected t h e w i l l t o be executed on October 30. When Budoin Powers began t o mend, i t was decided n o t t o go ahead with t h e w i l l a t t h a t time. Thinking of t h e p o s s i b i l i t y of executing t h e w i l l about October 30, Lee on October 27, 1971, telephoned t h e a t t e n d i n g physician, D r . Byorth, and i n q u i r e d whether t h e r e was any medical reason why Budoin Powers could not execute h e r w i l l , and was advised t h a t t h e r e was no such reason. The f e e b i l l r e f l e c t s t h e telephone conversation with D r . Byorth on October 27, and D r . Byorth confirmed t h a t he had received such a c a l l . I n a d d i t i o n t o t e s t i f y i n g t h a t he had received t h e telephone c a l l from Attorney Lee i n October, D r . Byorth r e f e r r e d t o n o t e s he

had made upon t h e admission of Budoin Powers t o t h e h o s p i t a l i n October and h i s n o t e of October 30 t o t h e e f f e c t t h a t she was It o r i e n t e d a s t o person, place and time". He r e c a l l e d h i s n o t e of October 30 was made because t h a t was t h e d a t e a n t i c i p a t e d f o r t h e execution of t h e w i l l . ~ e e ' stestimony was t h a t when he learned Budoin Powers was on t h e mend and t h e r e was no urgency, i t was decided n o t t o go ahead with t h e w i l l a t t h a t time. Furthermore, a f t e r taking c a r e of some of t h e a d m i n i s t r a t i v e matters t o s e e whether o r not h e r plans were f e a s i b l e , he t e s t i f i e d he "got back with h e r , oh, on two o r t h r e e times while she was s t i l l i n t h e hospital". Lee had numerous telephone conversations with Budoin Powers a f t e r s h e l e f t t h e h o s p i t a l November 4 , 1971, and he completed t h e f i n a l d r a f t of t h e w i l l which she intended t o execute i n t h e o f f i c e on November 18 o r 19, 1971. Two of t h e c o n t e s t a n t s , Paul Powers and Penny Bear, who w i l l o b t a i n s u b s t a n t i a l amounts of money by t h e revocation of t h e w i l l , t e s t i f i e d concerning Budoin Powers' condition while i n t h e h o s p i t a l a f t e r her f i r s t heart attack. Paul Powers t e s t i f i e d t h a t she was i n p r e t t y bad shape and incapable of i n t e l l i g e n t speech when she went i n ; t h a t she became more coherent a f t e r she g o t out of t h e i n t e n s i v e c a r e u n i t , which he thought was a week and a h a l f a f t e r she went i n . Penny t e s t i f i e d t h a t f o r two days a f t e r she went i n t h e h o s p i t a l October 17, h e r mother hardly knew who she was, and t h e condition continued f o r t h r e e f o u r days. Accepting t h i s testimony a t i t s f a c e value, i t stands uncontradicted and undisputed i n t h e record t h a t i t was from October 28 on u n t i l November 18 t h a t Attorney Lee, a s a r e s u l t of numerous conferences with h e r , and numerous changes and c o r r e c t i o n s i n t h e w i l l requested by h e r , f i n a l l y completed t h e document on November 18. Lee t e s t i f i e d : "* * So e v e n t u a l l y by s o r t of a process of d i s c u s s i o n and f i n d i n g o u t what was f e a s i b l e M r s . Powers and I a r r i v e d a t t h i s document which she was s a t i s f i e d r e - f l e c t e d her l a s t w i l l , and she t o l d m she'd be i n about e t h e 18th o r 19th, t h e l a t t e r p a r t of t h a t week, and we'd have t h e ceremony * * *. I'

There i s no testimony from any witness t o suggest o r i n d i - c a t e t h a t any of t h e Shelden c h i l d r e n , including Thelma, knew t h a t t h e new w i l l was contemplated, o r what t h e terms o r provi- s i o n s were, o r ever discussed them with t h e i r mother, o r e x e r t e d any i n f l u e n c e of any kind o r c h a r a c t e r whatsoever on t h e i r mother concerning t h e terms and provisions of t h e w i l l , o r ever exerted i n f l u e n c e on anyone e l s e . Repeating, t h e undisputed f a c t s a r e : That Budoin Powers entered t h e h o s p i t a l on October 17, 1971 and was immediately taken to the intensive care unit. That Lee f i r s t t a l k e d with h e r on October 20, 19% making extensive handwritten and typewritten other n o t e s , and on t h r e e o r four/occasions before h e r r e l e a s e from t h e h o s p i t a l on November 4. The f i r s t d r a f t of t h e w i l l was completed on October 28, a t which time i t was a n t i c i p a t e d t h a t she would execute t h e w i l l on October 30, b u t when she improved p h y s i c a l l y t h e r e was no need f o r an immediate execution of t h e w i l l and i t was postponed. She l e f t t h e i n t e n s i v e c a r e u n i t on November 1, and was r e l e a s e d and discharged from t h e h o s p i t a l on November 4 . Contestant Paul Powers t e s t i f i e d unequivocally t h a t she became coherent when she g o t out of t h e i n t e n s i v e c a r e u n i t on November 1. Contestant Penny Bear t e s t i f i e d t h a t t h r e e o r four days a f t e r h e r admission on October 1 7 , she s t a r t e d t o recognize people, and could then t a l k . There i s a b s o l u t e l y no evidence of any kind of any l a c k of competence from t h a t d a t e on u n t i l her second h e a r t attack. The testimony of Lee i s uncontradicted and undisputed t h a t t h e f i n a l d r a f t of t h e w i l l was completed on November 18 a s t h e r e s u l t of numerous conferences with Budoin Powers between October 20 and November 18, and she was expected a t ~ e e ' s f f i c e t o execute o t h e w i l l on November 18 o r 19; t h e r e was no change b e f o r e t h e execution on December 9. Indeed, i t i s c l e a r t h e r e was never any evidence of undue i n f l u e n c e o r fraud a t any time. ~ee's notes handwritten on October 20 quote h e r reasons f o r n o t including t h e Powers boys, i . e . , t h a t property was coming t o

them under t h e G l a c i e r County ranch t r u s t and t h e y must prove t h e y a r e men. P a t r i c k Powers had a l r e a d y been e l i m i n a t e d from t h e 1969 w i l l . Mrs. Powers t o l d Lee she w a s very fond of b o t h Thelma (who d i d n o t p a r t i c i p a t e a s a b e n e f i c i a r y i n t h e G l a c i e r County ranch involved i n t h e t r u s t c r e a t e d i n t h e w i l l of T.R. Powers), and of Penny Bear (who d i d p a r t i c i p a t e a s a b e n e f i c i a r y i n t h e G l a c i e r County ranch t r u s t ) . Thelma came t o v i s i t h e r from t i m e t o time, and she v i s i t e d Thelma from time t o time. Whenever she needed Thelma, she came. She a l s o f e l t t h e same way about Penny, who helped t a k e c a r e of h e r . She wanted t o g i v e Thelma t h e l i o n ' s s h a r e , and gave h e r more than s h e gave Penny, because Penny and t h e o t h e r f o u r c h i l d r e n of T. R. Powers were soon t o come i n t o t h a t t r u s t p r o p e r t y which was scheduled t o t e r m i n a t e i n September 1973. Budoin Powers thought t h a t t h e G l a c i e r County ranch would produce from $500,000 t o $900,000. She d i d n o t a n t i c i p a t e t h a t Penny Bear would l e a v e B i l l i n g s t o t a k e p a r t i n t h e o p e r a t i o n of t h e G l a c i e r County ranch, b u t she wanted t o do something s p e c i a l f o r Penny, so she s e t up t h e t r u s t f o r Penny of $10,000 t o t a k e c a r e of odds and ends such a s medical expenses and t h e l i k e . In t h e event of Penny's demise, t h e g r a n d c h i l d r e n were r e c o g n i z e d , b u t Mrs. Powers d i d n o t want t h e money t o f a l l i n t o t h e hands of penny's husband, Anthony Bear Don't Walk. She was n o t c e r t a i n t h a t t h e marriage of Penny and Anthony would l a s t , and i f t h a t marriage t e r m i n a t e d , then she wanted t h e money t o immediately v e s t i n and be a v a i l a b l e t o Penny. It i s a l s o of i n t e r e s t t h a t Budoin Powers had gone t o l i v e w i t h Thelma i n January 1971 and a p p a r e n t l y loaned Thelma $1,000 i n J u l y of t h a t y e a r , b u t t h e r e i s simply no evidence of any o t h e r g r a t u i t i e s t o any o f t h e f i r s t s i x of h e r c h i l d r e n born of h e r marriage t o Shelden. O t h e o t h e r hand, she had a l r e a d y n made a home f o r Paul Powers and h i s w i f e i n Hawaii w h i l e he was a t t e n d i n g t h e U n i v e r s i t y o f Hawaii and had advanced t o Paul some $21,977.73 of t r u s t funds.

Lee completed t h e f i n a l d r a f t of t h e w i l l on November 18, 1971, s o l e l y a s t h e r e s u l t of numerous conferences between Bedoin Powers and Lee while she was admittedly competent, t o i n s u r e t h a t t h e f i n a l product c a r r i e d out h e r wishes and d e s i r e s . There i s no evidence t h a t any o t h e r person ever discussed t h e c o n t e n t s of t h e w i l l o r t h e testamentary d e s i r e s o r i n t e n t i o n s of Bedoin Powers with e i t h e r h e r o r with Lee. The w i l l a s f i n a l l y d r a f t e d on November 18 was duly executed by Bedoin Powers before Lee and Kemp Wilson on December 9. There i s not one shred of evidence of incompetence, undue i n f l u e n c e , o r fraud i n t h e f i n a l i z i n g of t h a t w i l l on November 18, and Bedoin Powers had s e n s i b l e reasons f o r t h e d i v i s i o n of a l l property between a l l eleven c h i l d r e n i n view of t h e provisions of t h e Glacier County ranch t r u s t f o r t h e f i v e Powers c h i l d r e n , and t h e 1971 w i l l concerning t h e Big Horn County ranch f o r t h e s i x Shelden c h i l d r e n . From t h e time of t h e second h e a r t a t t a c k on November 19 through t h e execution of t h e w i l l on December 9, t h e s e b a s i c f a c t s a r e not i n dispute: November 18, Bedoin Powers l e f t t h e t r a i l e r home where she stayed with her daughter Penny, and went t o a motel with her daughter Thelma and Thelma's c h i l d r e n . She intended t o go t o ~ h e l m a ' shome i n Portland. She telephoned Lee from t h e motel. November 1 9 Penny came t o t h e motel and Bedoin Powers sustained h e r second h e a r t a t t a c k i n t h e presence of Penny, Thelma and ~ h e l m a ' sc h i l d r e n . She was immediately taken t o t h e i n t e n s i v e c a r e u n i t where she had a tracheotomy and t h e tube was l e f t i n her t h r o a t . Thelma l e f t B i l l i n g s with her c h i l d r e n and returned t o h e r home i n Portland on November 31, and d i d n o t r e t u r n t o B i l l i n g s u n t i l December 2 3 , which i s t h e d a t e her mother was r e l e a s e d from the hospital. December 8 , 1971, was t h e d a t e a l l c l o s i n g papers including t h e p e t i t i o n , checks f o r d i s t r i b u t i o n , and o t h e r papers were executed by Bedoin Powers f o r termination of t h e Glacier

County ranch t r u s t by which t h e f i v e Powers c h i l d r e n acquired a l l of t h e t r u s t property. Penny and Paul both executed t h e waivers of

accounting, and Paul Powers accompanied Lee t o t h e h o s p i t a l and was p r e s e n t when s h e executed a l l of t h e papers and documents necessary f o r terminating t h e t r u s t . On December 9 , Kemp Wilson

accompanied Lee t o t h e h o s p i t a l a t which time t h e w i l l , which had been d r a f t e d i n f i n a l form on November 18, was then executed. Bedoin Powers l e f t t h e i n t e n s i v e c a r e u n i t December 14 and was discharged from t h e h o s p i t a l on December 23, 1971. She d i e d i n June 1972. The i m p a r t i a l testimony of D r . Byorth, a t t e n d i n g p h y s i c i a n , and f i v e n u r s e s who took c a r e of h e r throughout h e r s t a y i n t h e i n t e n s i v e c a r e u n i t i s overwhelming evidence. L a u r i e Vogele was on d u t y from 3:00 p.m. t o 11:30 p,m. December 8 ; Josephine Keeland from 1 1 : O O p.m. on December 8 u n t i l 3:30 p.m. on December 9. I n a d d i t i o n , t h e testimony of n u r s e s Pat S i l v a and Dora P a d i l l a d u r i n g t h e same g e n e r a l p e r i o d of time confirmed t h e competency of Budoin Powers. With r e s p e c t t o t e s t s concerning h e r a b i l i t y t o understand, t h e n u r s e s would q u e s t i o n h e r d u r i n g t h e f i r s t few days she was t h e r e , c h a r t t h e answers, and t h e r e a f t e r when she was aware of what was going on, t h e r e was no need t o do so. A s of December

9 , t h e r e was no need t o a s k h e r t h e q u e s t i o n s any l o n g e r , because on t h a t d a t e Bedoin Powers was aware of what was going on. Nurse Connie Dunn worked f i v e days a week throughout a l l t h e time Bedoin Powers was i n t h e i n t e n s i v e c a r e u n i t and she t e s t i f i e d t h a t M r S . Powers was competent t o d i s p o s e of h e r p r o p e r t y on December 9 , 1971. T h i s judgment was confirmed by n u r s e s Keeland and P a d i l l a .

W have given a l l of t h e foregoing d e t a i l s t o e s t a b l i s h e t h a t t h e r e were no i s s u e s a s t o undue i n f l u e n c e , f r a u d , l a c k of e x e c u t i o n o r w i t n e s s i n g of t h e w i l l , and t h e s p e c i a l v e r d i c t should n o t have been submitted t o t h e j u r y . T h i s a l o n e would r e q u i r e r e v e r s a l and a new t r i a l . However, t h e r e remains t h e f i r s t i s s u e a s t o whether t h e motion f o r a d i r e c t e d v e r d i c t should have been granted.

Contestants' p o s i t i o n here i s t h a t i f t h e r e was s u b s t a n t i a l , competent and c r e d i b l e evidence even though t h e evidence was c o n f l i c t i n g , t h e v e r d i c t of the j u r y should be upheld. Previously we have shown t h a t t h e v e r d i c t cannot be upheld, b u t our problem i s whether t h e r e was s u b s t a n t i a l , competent and c r e d i b l e evidence t o withstand t h e motion f o r d i r e c t e d v e r d i c t . Contestants c i t e Reynolds v. Trbovich, I n c . , 123 Mont. 224, 210 P.2d 634 and Wyant v. Dunn, 140 Mont. 181, 368 P.2d 917, f o r t h e general p r i n c i p l e t h a t t h e jury i s t h e trier of f a c t and u n l e s s t h e evidence on behalf of t h e [ c o n t e s t a n t s ] i s n o t i n h e r e n t l y so improbable a s t o brand i t palpably f a l s e , t h e evidence should be submitted t o t h e j u r y a s t h e j u r y i s t h e s o l e judge of c r e d i b i l i t y of t h e witnesses. I n analyzing t h e testimony submitted, t h e only p o s s i b l e i s s u e t h a t could have been submitted t o t h e j u r y was a s t o t h e competency of t h e t e s t a t r i x . . Considering t h e evidence i n t h e b e s t l i g h t p o s s i b l e f o r t h e c o n t e s t a n t s , t h e most t h a t can be s a i d i s t h a t t h e t e s t a t r h had i n t e r m i t t e n t periods of incom- petence, b u t a t t h e time of execution of t h e w i l l she was wholly competent. The only evidence t o t h e c o n t r a r y , i f i t be s u b s t a n t i a l c r e d i b l e evidence, c o n s i s t e d of t h e testimony of son Paul Powers, daughter Penny Powers (Mrs. Anthony Bear Don't Walk), A l l i e Williams, an aunt of deceased, and Genevieve Haworth, a f r i e n d of many years. Mrs. Haworth t e s t i f i e d t h a t when she talked t o Bedoin Powers a f t e r h e r r e l e a s e from t h e h o s p i t a l she s a i d she could n o t remember what went on during h e r h o s p i t a l s t a y . Obviously such a statement does n o t e s t a b l i s h a l a c k of competency a t a given t i m e . The a u n t ' s testimony regarding a h o s p i t a l v i s i t where she s a i d Bedoin Powers d i d n o t recognize h e r on t h e day of t h e execution of t h e w i l l does n o t amount t o s u b s t a n t i a l evidence of incompetency. The s o n ' s and d a u g h t e r ' s testimony remains. They a r e t h e most i n t e r e s t e d witnesses. Both would gain by r e j e c t i o n of t h e w i l l .

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 collater- ally 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 re- veals that the testimony of Paul Powers, upon which the trial court's decision rested is, while conflicting, not substantial.

He, who received b e n e f i t s of h i s mother's execution of documents terminating t h e Glacier County ranch t r u s t i n h i s favor, w i l l n o t then be heard t o t e s t i f y t h a t she was incompetent. Contestants c i t e I n r e E s t a t e of H a l l v. Milkovich, 158 Mont. 438, 448, 492 P.2d 1388, f o r t h e proposition t h a t t h e i s s u e could and should n o t have been withdrawn from t h e jury. W b e l i e v e a c l o s e reading of I n r e E s t a t e of Hall w i l l r e v e a l e the contrary. F i r s t , we have h e r e t o f o r e shown t h a t t h e r e was no evidence of undue influence. The only i s s u e was competency. I n I n r e E s t a t e of H a l l t h e t r a n s c r i p t was r e p l e t e with evidence t h a t should have been resolved by a jury. Here, lacking ~ a u l ' s unbelievable testimony n o t amounting t o " s u b s t a n t i a l " evidence, reasonable men could n o t reach d i f f e r e n t conclusions from t h e facts. I n I n r e E s t a t e of H a l l , a w i l l c o n t e s t where t h e t r i a l c o u r t granted a motion f o r d i r e c t e d v e r d i c t f o r proponents dismissing c o n t e s t a n t s ' p e t i t i o n s , an 81 year old t e s t a t o r with a long h i s t o r y of d e c l i n i n g mental and physical h e a l t h due t o a p a i n f u l terminal cancer, had made four w i l l s w i t h i n s i x months under circumstances c l e a r l y showing f a c t d i s p u t e s . This Court stated: "Respondents r e l y h e a v i l y on language t h i s Court used i n I n r e E s t a t e of Cocanougher, 141 Mont. 16, 25, 375 P.2d 1009, when t h e Court quoted from I n r e Hegarty's E s t a t e , 46 Nev. 321, 212 P. 1040: 11 1 I8 Courts have n e i t h e r t h e r i g h t nor power t o reframe t h e w i l l s of decedents, nor t o overthrow t h e expressed i n t e n t t h e r e i n contained, i n t h e ab- sence of d i r e c t and s u b s t a n t i a l proof s u f f i c i e n t t o b r i n g t h e c a s e w i t h i n t h e w e l l - e s t a b l i s h e d r u l e s of law regarding undue influence. I' I "This Court i s mindful of t h e d i g n i t y t h a t i.t has reposed i n a decedent's w i l l and r e a f f i r m s t h i s d o c t r i n e . But we must recognize t h a t t h e Court had Cocanougher b e f o r e i t on appeal twice a f t e r j u r y v e r d i c t s f i n d i n g undue influence and properly found t h a t t h e evidence revealed none. Therefore t h a t d o c t r i n e has no a p p l i c a t i o n t o t h e i s s u e before us i n t h e i n s t a n t case. I I I n I n r e E s t a t e of H a l l , t h e t r i a l c o u r t had r u l e d out a l l evidence of h o s p i t a l records. I n t h e i n s t a n t c a s e , a l l evidence

of h o s p i t a l records plus t h e doctor and n u r s e s came i n , a l l a t t e s t i n g t o competency. The t e s t a t r i x h e r e was s i x t y years of age, a c t i v e , and admittedly i n good mental condition except a s t h e h e a r t a t t a c k s might have a f f e c t e d i t . Moreover, between h e a r t a t t a c k s and h o s p i t a l i z a t i o n s and t h e r e a f t e r , t e s t a t r i x h e r e was competent i n a l l ways. A number of o t h e r matters appear from t h e record h e r e t h a t we do n o t dwell upon. The c o n t e s t a n t s ' a s s e r t i o n s of unnaturalness 11 of t h e w i l l , t h e "Powers" money n o t going t o t h e Powers1' c h i l d r e n , and o t h e r matters during t h e course of t h e t r i a l were allowed 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 s i n g l e i s s u e , t h a t of competency, t o such a degree t h a t evidence was permitted which was n o t sub- s t z n t T a l and c r e d i b l e and o f t e n n o t r e l e v a n t . Having examined t h e record, we f i n d t h e judgment must be and i s reversed and t h e cause remanded with d i r e c t i o n s t o g r a n t judgment t o t h e proponents of t h e w i l l of December 9 , 1971, and t h a t t h a t w i l l be admitted t o probate.

Jus t I ?

f Chief ~ u s t i c e .