                                          No. 88-183
                 IN THE SUPREME COURT OF THE STATE OF MONTANA
                                             1988



THOMAS L. TOPE and ANNA TOPE,
                      Plaintiffs and Appellants,
         -VS-

LILLIAN 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:

                      Hoyt and Blewett; Alexander Blewett, 111, Great
                      Falls, Montana
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                                             Submitted on Briefs:   Oct. 20, 1988
                                              Decided:   December 9, 1988
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Filed:



                                            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 o f 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
7 8 9 , 43 St.Rep. 2 0 7 4 .
      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 5 2 (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 - judgment that is peculiarly
                    the
           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 F O R A NEW T R I A L
      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 T T .
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
