Wallin v. Kinyon's Estate (State report title: Wallin v. Kenyon Estate)

• Court: Montana Supreme Court
• Writing for the Court: HASWELL; JAMES T. HARRISON
• Citation: Wallin v. Kinyon's Estate (State report title: Wallin v. Kenyon Estate), 519 P.2d 1236, 164 Mont. 160 (Mont. 1974)
• Decision Date: 27 March 1974
• Docket Number: No. 12632,12632
• Parties: Eunice WALLIN, Opponent and Appellant, v. Jesse KINYON ESTATE, Proponent and Respondent.

Page 1236

519 P.2d 1236

164 Mont. 160

Eunice WALLIN, Opponent and Appellant, v. Jesse KINYON ESTATE, Proponent and Respondent.

No. 12632.

Supreme Court of Montana.

Submitted Feb. 25, 1974.

Decided March 14, 1974.

Rehearing Denied March 27, 1974.

Richard J. Conklin (argued), White Sulphur Springs, for opponent and appellant.

John V. Potter, Jr. (argued), White Sulphur Springs, for proponent and respondent.

HASWELL, Justice.

This is an appeal from a judgment of the district court of Meagher County, the Hon. LeRoy L. McKinnon presiding, granting proponent's motion for a directed verdict admitting the will of Jesse Kinyon to probate.

The testator, Jesse Kinyon, by will dated January 18, 1971, made bequests of $1,000 each to three nieces (including contestant Eunice Wallin), $2,000 to a cousin, King Walters, and bequeathed the remainder of his estate to the Mayn Cemetery District. The will indicates the testator's reasons for leaving the remainder of his estate to the cemetery district was to make possible the fencing, restoring and maintaining the Fort Logan burial ground at which his parents were buried, and to use the remainder to improve the Mayn cemetery at which the testator wished to be buried.

The will was drafted by Jennie L. Minder, the public administratrix of Meagher County, with the aid of John V. Potter, an attorney who employed her as his secretary. She was called by Kenneth Twichel, the clerk of court, to help the testator draw up a will. By the terms of the will she was appointed executrix.

Testator died January 26, 1971, at age 79, leaving approximately $30,000 in his estate. At the time of his death, he was residing in a rest home in Meagher County. He left surviving him as his nearest relatives eight nieces and nephews.

The petition for probate of this will was contested by the testator's niece, Eunice Wallin, appellant herein. Under a former will dated January 17, 1967, testator left his entire estate to her.

After the district court's denial of proponent's motion for summary judgment, the matter went to trial before a jury April 4, 1973, on issues of (1) proper attestation of the will, and (2) undue influence. At the beginning of the jury trial, the district court granted proponent's motion in limine to exclude testimony regarding the claimed invalidity of the charitable bequest to the Mayn Cemetery District, and the alleged actions of the executrix in drafting the will as constituting the practice of law without a license.

Proponent presented testimony of the two subscribing witnesses (employees of the rest home where testator was being cared for), and the testimony fo proponent as to her qualifications and willingness to act as executrix.

Both subscribing witnesses to the will acknowledged that prior to signing it, each had taken notice of the attestation clause of the will appearing above their signatures and knew the purpose for which their signature was requested.

Proponent testified that the testator had read the first draft of the will himself, that after some minor changes had been made at his request, she read the final draft to him immediately prior to his signing.

Attesting witness Clark testified that when she entered the testator's room prior to witnessing the will, the testator was 'sitting in a chair with a little table in front of him'; that the proponent asked him 'if he understood what had been read to him, and if he wanted her to re-read it and he said no.' She further testified that testator was asked 'if he was ready to sign and he said yes. * * * He signed it and handed the pen to me and I signed it and handed it (the pen) to him and he handed it to Ellen (the other attesting witness) and she signed it, that was it.' The testator didn't say anything, he 'just looked up at me and handed me the pen.'

Nielson, the other attesting witness testified that the testator stated 'he knew what was in it and wanted to get it over with'; that when he finished signing, and after Clark had signed 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 counsel. At the onset of trial, proponent's motion was argued and granted. This motion instructed:

'* * * 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 objection 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...