WALLIN v KENYON ESTATE

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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: Decided : ~ i l e d :MAR 1 4 19# February 25, 1974 14 1 9 9 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 and ( 2 ) undue i n f l u e n c e . (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 , 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 chari 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 proponent, 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 arising 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 influence 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 prejudicial 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. Cal.App.3d 504. People v. Jackson, 95 Cal.Rptr. 919, 18 Rule 16(6), M.R.Civ.P., permits the court in its discretion to consider "* * * disposition of the action." See 94 ALR2d 1087 and 20 Am Jur Trials p. 441. matters as may aid in the (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 evidence 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. i s s u e s were a l l o w e d single issue "* * * 917, where many d i v e r s e 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 * * *." 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. its facts. That case is clearly distinguishable on In the present case the fee Minder was to receive as executrix and the charitable bequest was the essence of contestant'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. 375 P.2d 1009. Estate of Cocanougher, 141 Mont. 16, There was no reason, therefore, in this case to require the proponent to proceed with further proof, and the granting 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 W e concur: i 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.

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