— The ultimate question for review is whether the district court erred in refusing to set aside the appellants’ motion to vacate a judgment by default rendered against them dismissing their objections to the probate of the will of A. J. Davis, deceased. To decide this point it is proper to pass upon the following other and incidental questions raised:
1. Did the court err in refusing to grant appellants’ motion for a continuance?
2. Were the appellants guilty of neglect in not being ready for trial upon the date set?
The employment of Mr. E. W. Toole and Mr. Clayberg by contestants as their counsel in Montana is ample evidence of the appellants’ belief in the invalidity of the will offered for probate by the proponent, and of their disposition to partake of any share of the estate which would be theirs as heirs at law of the decedent, if such contest should result in a decree refusing to admit the will to probate.
The reports of the courts of the state and territory of Montana bear witness to the learning and high standing of the gentleman named; and the appellants had a right to feel assured of every protection under such eminent professional care.
We therefore dismiss any suggestion by respondents of negligent conduct on the part of the appellants themselves, or their New York counsel, on account of their full reliance in Mr. Toole and Mr. Clayberg, at all times prior to the withdrawal of those gentlemen in April and June preceding the date of the trial at Butte; and, for like reasons, we ignore any intimations now made by the appellants of lack of proper regard for their interests by their said counsel at any stage of the proceedings when the gentlemen named acted for them. The several contestants had the same attorneys in Montana; their objections to the will raised substantially the same issues in the separate contests; they stood in the same degree of relationship to the decedent, and, with a cause necessarily common to each and all, it was the most convenient and natural course for their counsel in Montana to pursue, to force one suit to issue and concentrate all energies on one contest, permitting all others to abide the result of the one selected for trial. *
Guided apparently by these considerations, the particular *396contest of appellants was kept in statu quo, or practically so, while that of Boot and Cummings was pressed to trial. Appellants were poor, and perhaps the financial abilities of Boot enabled him to better prepare the evidence. But however that may have been, the conspicuous fact remains that the Boot contest was the first one ever brought to trial. It lasted many weeks, was bitterly contested, and, by its unusual importance, has contributed not a little to the history of will contests in the jurisprudence of the land. But the jury disagreed and a mistrial was had. The several contests still pended, Boot’s standing ready for hearing.
The stipulation of April 29, 1893, to try it again in July, and not to continue it beyond that time, unless for causes arising after date of the stipulation, warranted the general belief by all interested that Boot would again try to establish that the will was a forgery, or had been revoked by other wills. And, in the absence of any express notification by their Montana counsel, that any other course would be pursued, appellants are not now to be blamed for having expected their suit to lie dormant until forever finally killed or reanimated by the determination of the Boot-Cummings contest.
But in June, 1893, affairs changed somewhat.
Mr. Toole and Mr. Clayberg then withdrew as counsel for these two contestants, giving as a reason therefor, that appellants had sold out their interests in the estate of decedent to one Erwin Davis, another relative, who was unfriendly to Mr. Boot. The professional allegiance of counsel named was expressly due to Boot if his interests conflicted with these or other contestants. Mr. Toole’s letters to Mr. Keogh were direct and plain withdrawals as counsel, based upon the positive assumption of the fact as true that these appellants had sold their interests to Erwin Davis. And it must be said that these same letters of Mr. Toole advised Mr. Keogh of the necessity of having some one on hand at the trial, which was set for July 24th (or 26th as Mr. Toole, by mistake, put it). But the most important fact must not be lost sight of, that there was not the slightest intimation given in the Toole letters, or in any other way, at any time, to appellants, that the Boot-Cummings contests would not be tried upon the 24th of *397July, but that appellants’ contest would then be called and pushed to judgment, regardless of what course might be taken in the Hoot matter. Mr. Toole certainly did not then know of any such probable postponement and plan, but, unless he did, it is unreasonable to say that Keogh who relied on Mr. Toole, ought to have been on his guard against such a highly improbable move. True, prudence and cautious regard of his clients’ interests ought to have prompted Mr. Keogh to come to Montana at once upon the receipt of notice of Mr. Toole’s withdrawal as counsel; but his failure to do so, although a dangerous omission of strict vigilance, cannot be attributed to any gross neglect. What did he do? He sought to hold on to the valued services of Mr. Toole by assuring him that there was no change in the status of his clients toward the will or Root and Cummings by any sale to Erwin Davis. But Mr. Toole refused to act. He next telegraphed to Messrs. Corbett & Wellcome of Butte and asked them to act in appellants’ behalf. But they declined. Meanwhile the time was slipping by, and the appellants were without any local counsel. At last Mr. Keogh adopted the unusual course of telegraphing directly to Judge McHatton, the presiding judge of the court in which all the will contests were pending, asking him to recommend an attorney to him. This circumstance of communicating with the judge, after his several futile attempts to secure counsel, is an evidence of the anxiety of Keogh to have his clients represented, and demonstrated that in the “skir-minishing” (as respondents characterize the telegraphic efforts to obtain counsel), appellants were determined to secure a reputable attorney to protect their matters. Judge McHatton recommended Mr. Cotter to them. Mr. Cotter was then trying an important mining case before Judge McHatton, but was retained by Keogh on July 17th, just one week before the day set for the Root-Cummings and appellants’ contests. It was utterly impossible for Mr. Cotter to familiarize himself with the appellants’ claims and the testimony necessary to support them. He was kept in court attending the mining suit until the evening of July 23d, but, under favorable conditions, the time was certainly too brief for any strange counsel to prepare for a contest of such importance, even had he devoted all his *398time to doing so from the moment of his employment. His affidavit frankly states that he relied upon the Hoot contest coming on for trial first. It had been tried first before, it was stipulated for trial again, it preceded the appellants in regular order, and there was absolutely nothing to justify him in the belief that it would be continued.
Upon July 24th, when the hour of trial arrived, however, the stipulation for a continuance of the Root-Cummings case was filed, and the agreement made to separate it "from any other contests of any other parties against the probate of said will.” This stipulation summarily disposed of the trial of the main case ou that day. Its former dependent, the Sheffield-Davis contest was next called. Mr. Cotter could do nothing except beg a continuance. This he did by affidavit, more fully set forth in the statement of facts. His clieuts were in Massachusetts and New York, their only Montana counsel familiar with their rights had withdrawn some five weeks before, their New York attorneys were not present, he had no testimony on hand and knew not where to get it or who were his witnesses — indeed, surprised and routed by the unexpected move of the proponent and Root, he suddenly found himself the sole, unaided, unprepared and unadvised counsel for two clients, a nephew and niece of the decedent, nearly three thousand miles away, yet contending for years past that they were justly entitled to an eleventh interest in the princely fortune of their dead uncle.
The court, on July 26th, denied the motion for a postponement. The proponents pressed for a dismissal. Mr. Cotter asked leave to dismiss “without prejudice,” believing, probably, that such a dismissal might not operate to bar a reinstatement of the contest of his clients (a point upon which we express no opinion at this time). But the proponents objected to such an order and asked a general dismissal. Thereupon Mr. Cotter, acting presumably in his belief in the best interests of the appellants, withdrew altogether from the case, whereupon it was at once dismissed on proponent’s motion.
Thus the contestants were denied a hearing on the merits, and, so far as this contest was concerned, were wholly out of court.
We are not prepared to say that there was error in the *399court’s refusing the continuance. It may be that, for lack of sufficient knowledge of the facts in the case, the affidavit of Cotter was defective under the statute, and legally insufficient. We may grant, too, without intimating our views upon the effect of the order applied for, that the court properly declined to permit a dismissal “ without prejudice,” and that the final order of general dismissal was legally granted.
We may go a point further and concede that appellants were to a degree negligent in permitting Mr. Cotter to be placed in the position he was. With such grave interests at stake, and only seven days to consider the rights of his clients, their duty was to have given him assistance by the presence of some one who knew the facts and history of the litigation, lest an unforeseen turn might be taken in their case, which would imperil their rights.
Let the case stand, therefore, as if properly reduced to judgment of dismissal brought about by the insufficiency of the showing in the affidavit for a continuance and by the negligence of the appellants and their New York counsel.
Still we must determine the additional very important point, whether, under all the facts and circumstances presented by the motion and affidavit to open the default, such negligence was excusable, and whether, under section 116 of the Code of Civil Procedure, the contestants are entitled to be relieved of the judgment and default entered against them by the district court.
Several stubborn facts are prominent throughout the record. The appellants are the undisputed heirs at law of the decedent, and, unless cut off by will, are justly entitled to share in his estate. They were prompt in filing a contest as to the validity of the decedent’s will. They were diligent in securing the services of counsel in New York. They were diligent in the first instance in retaining counsel in Montana. Their Montana counsel acted for them for years and until less than six weeks before the day set for the trial of their contest. They relied upon their retained counsel until forced to employ another attorney. They knew that Hoot and Cummings had conducted the principal contest in the former trial, and that it again stood for trial before theirs. They knew that if the *400Hoot ease was tried, in the light of past experience, weeks would roll by before theirs could be reached, if it ever was. They knew that Root could only share as an heir at law in the estate of their uncle by overthrowing the will. They knew that Root’s contest was set for July 24th. They knew that if the will was good as against Root it should be as against them, while, if the intestacy of their uncle was established by Root, they stood iu the same line of succession with him and their other cousins. All these matters were naturally relied upon, and are now important elements in impelling the court to the conclusion to be reached.
But, above all, these appellants did not know, and are not blameworthy for not knowing, that Root would stipulate with proponents to continue his contest and expressly keep it distinct from theirs. The entire former conduct of the Root-Cummings contest precluded any reasonable supposition on these contestants’ part of any such continuance and stipulation. It was scarcely credible after such a prolonged litigation and an express agreement not to continue a second trial beyond a certain time, and after such a necessarily hostile attitude had been assumed by Root to the proponents of the will, that Root and Cummings would, as late as the very morning of the day of the trial, and without an intimation to these contestants, suddenly adopt so unforeseen a position, and, by doing so, force appellants into the desperate choice of proceeding without testimony or suffering a default.
It may be that such conduct on Root’s part, in so far as it affected him only, was a matter purely between him and proponents, but it certainly was none the less a great surprise to these contestants, who were injured by it, and, when considered in the light of the fact that by no possible effort could the appellants have prepared for trial after Mr. Cotter was retained, the situation appeals with much force to the discretion of a court to restore these contestants to a position where they can be heard upon their objections to the probate of the will.
The letter of Mr. Corbett of April, 1892, not only advised Mr. Keogh that under our practice ample time would be given to frame the pleadings in the several contests, but also communicated to Keogh the statements of Mr. Eorbis, of counsel *401for proponent, made to Mr. Corbett, that “ they have no intention of forcing trial on the Sheffield-Davis objections at any earlier date than upon Hoot and Cummings objections, and Mr. James W. Forbis stated to me that the demurrer being disposed of should stand continued for hearing subject to the same con litions as the Knot and Cummings objections.” This letter strongly corroborates the evident and the well-justified reliance of these appellants upon the disposition of the Koot contest ahead of theirs.
Of course, as events turned out, these contestants were foolish to rely upon all the matters they did, but, unless nearly every reasonable hypothesis in explanation of their conduct, other than a most unnatural indifference, is to be excluded, under the showing made to open the default, it is well nigh impossible to believe that the ends of justice will be furthered by barring them of their day in court. We say “ barring them,” without meaning to hold that a judgment of dismissal would necessarily preclude a contestant from coming in under section 30 of the Probate Practice Act, and instituting a contest within a year after a will may have been probated. But the possible rights of the appellants under such conditions not being involved herein, and not having been argued to this court, we find it unnecessary to decide the point suggested.
The proponent cannot complain of any injustice to him, because he was a party to the stipulation with Koot of July 24th, which operated to the surprise of the contestants. Moreover, the court may prescribe that by reason of the negligence shown, as a condition for relief, contestants — appellants—shall pay the necessary court costs to which proponent was put in preparing for trial on July 24, 1893.
Some stress is laid by respondents upon the alleged sale of contestants’ interests to Erwin Davis, and it is argued that because there was such a sale the appellants cannot justly claim surprise or excusable neglect. But as they stand toward the court, rather than as toward one another, we find sufficient excuse for their neglect throughout the whole record to entitle them to the relief asked, without assuming to decide, upon the affidavits before us, whether such sale was or *402was not a subsisting agreement when Mr. Toole withdrew as their counsel.
Nor do we attach particular significance to the appellants’ failure to pay any share of the contestants’ costs in the Root-Cummings matter. The proponents cannot object to that, for it in no way hurt them, unless it otherwise tends to establish inexcusable neglect in not meeting them in the July, 1893> case. This it does not do in a satisfactory manner.
Besides, if appellants have made a sufficient showing of rights, their past penuriousness toward other contestants is not for consideration, and the courts should not deter them from now asserting those rights against those whom they have in no wise injured.
We find it unnecessary to discuss the probability of any alleged collusive agreement between Root and Cummiugs and proponent to continue their contest, in order to secure the dismissal of others and permit the will to be probated and the Root-Cummings contest to be withdrawn, to the end that the estate might be divided between the legatees named in said will and the said Root and Cummings, to the exclusion of the said Sheffield and Davis. We have eliminated this accusation of appellants from our consideration of the present appeal.
So, too, do we refrain from more than a passing mention of the unwarranted implications of the counsel for appellants in the language of his briefs upon the ruling of the district court, refusing to open the default. The perhaps vital importance of this decision to his clients has doubtless led counsel into a somewhat intemperate use of words, which scarcely comports with his honorable position at the bar of this court.
We base our opinion upon the ground that when these appellants, by their counsel, Mr. Cotter, went into court on July 24, 1893, the Root-Cummings contest stood for trial ahead of theirs, and that when it was continued, and the appellants’ contest was peremptorily called, they were surprised and their negligence in not being ready to proceed, and in suffering a default, considering all the facts and circumstances, was excusable.
It follows that the discretion of the court in refusing the relief finally and justly asked was so unwisely exercised that, *403in furtherance of justice, a reversal of the case must be ordered.
It is therefore ordered that the cause be remanded to the district court of Silver Bow county, with directions that upon payment within thirty days into that court by the appellants of all reasonable and legally taxable court costs of the respondents in preparing for trial on July 24, 1893, the judgment of the district court, and the order denying the motion to set aside the same, be reversed, and the contest of the appellants be restored for trial or other proper disposition by that court.
Reversed.
De Witt, J., concurs. Pemberton, C. J., dissents.