                                    No. 12417

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

                                         1973



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
                       .
