No. 12571
I N THE SUPREME C U T O THE STATE OF M N A A
OR F OTN
1974
I n t h e M a t t e r of t h e E s t a t e
of
UNA M. NEWMAN, Deceased
.
NELSON S CARPENTER, AMELIA B
CARPENTER and MARCIA CARPENTER
.
LULL,
Objectors and A p p e l l a n t s ,
ELLEN TSCHACHE, HELEN MACQUARRIE and
EMMA MONROE,
P e t i t i o n e r s and Respondents.
Appeal from: D i s t r i c t Court of t h e Eighteenth J u d i c i a l D i s t r i c t ,
Honorable W. W. Lessley, Judge p r e s i d i n g .
Counsel of Record:
For A p p e l l a n t s :
Landoe and Gary, Bozeman, Montana
H. B. Landoe argued, Bozeman, Montana
H o l t e r and Heath, Bozeman, Montana
For Respondents :
Berg, Angel, Andriolo and Morgan, Bozeman, Montana
Ben E. Berg argued, Bozeman, Montana
Submitted : January 15, 1974
Mr. Chief Justice James T. Harrison delivered the Opinion of
the Court.
This is an appeal from an order admitting a lost will
to probate in the district court of Gallatin County.
This case arose when, after the death of Una M. Newman,
a carbon copy of a purported Last Will and Testament of the
deceased was found.
Una M. Newman died on April 19, 1973, a resident of
Gallatin County at the time of her death. Special letters of
administration were granted, appointing Ellen Tschache and Helen
MacQuarrie, two of the respondents herein, as special adminis-
tratrixes on April 20, 1973. On April 23, 1973, George W. McKean,
the public administrator of Gallatin County petitioned fox letters
of administration, and to revoke the letters of special admin-
istration previously issued.
The petition filed by George W. McKean to revoke the spec-
ial letters of administration previously issued was initially
heard on April 30, 1973. This hearing was continued. On April
30, 1973, a petition seeking letters of administration with will
annexed was filed by respondents herein, requesting admission to
probate of the Last Will and Testament of Una M. Newman, deceased,
and attaching a copy of same thereto.
On May 15, 1973, opposition to the probate of this will
was filed on behalf of Nelson S. Carpenter and ~ m e l i aB. Carpenter,
the second cousins of the deceased and Marcia Carpenter Lull,
another heir-at-law of the deceased, the appellants herein. On
May 21, 1973, the petition for letters of administration with will
annexed and the opposition to probate of will were heard.
Thereafter, and on June 4, 1973, findings of fact and
conclusions of law were issued by the district court of the eight-
eenth judicial district admitting the unsigned copy of the last
will and testament of Una M. Newman, deceased, to probate, and
on J u n e 8 , 1973, l e t t e r s of a d m i n i s t r a t i o n w i t h w i l l annexed
w e r e issued t o respondents. A motion t o amend t h e f i n d i n g s
was made on b e h a l f of a p p e l l a n t s on J u n e 1 2 , 1973. The motion
was o v e r r u l e d , and t h i s a p p e a l was t a k e n .
The copy of t h e w i l l a d m i t t e d t o p r o b a t e was unexecuted
and c o n t a i n e d no s u b s c r i b i n g w i t n e s s e s . The week a f t e r t h e
d e a t h o f t h e d e c e a s e d a s e a r c h was made o f h e r s a f e t y d e p o s i t
box a t t h e S e c u r i t y Bank o f Bozeman, and no w i l l was found a s a
r e s u l t of t h a t s e a r c h . E l l e n Tschache, a c l o s e p e r s o n a l f r i e n d
o f d e c e a s e d , t e s t i f i e d t h a t s h e and Helen MacQuarrie, a l s o a
f r i e n d of d e c e a s e d found t h e document marked "copy o f w i l l " ,
which was a d m i t t e d t o p r o b a t e , i n a l i t t l e t i n box which w a s
l o c k e d and l o c a t e d i n t h e bedroom of d e c e a s e d ' s home. Mrs.
Tschache t e s t i f i e d t h a t d e c e a s e d had t o l d them t o l o o k i n t o t h e
box, t h a t t h e r e was something i n t h e r e .
Helen MacQuarrie t e s t i f i e d t h a t s h e had known t h e de-
c e a s e d s i n c e a p p r o x i m a t e l y 1929, She s t a t e d t h a t d u r i n g t h e
l a s t month o r s i x weeks and a l s o t h a t n i n e d a y s p r i o r t o t h e
d e a t h o f t h e d e c e a s e d s h e had d i s c u s s i o n s w i t h d e c e a s e d r e g a r d -
i n g h e r e s @ k e and t h a t d e c e a s e d had s t a t e d t h a t h e r w i l l was
o u t d a t e d , t h a t t h e f o l k s t h a t were i n it were a l l d e c e a s e d , and
t h a t t h e a d m i n i s t r a t o r s were d e c e a s e d .
O t t Tschache t e s t i f i e d t h a t he had been a c q u a i n t e d w i t h
d e c e a s e d f o r a p p r o x i m a t e l y t h i r t y y e a r s and t h a t he and d e c e a s e d
would v i s i t back and f o r t h i n e a c h o t h e r s homes. He t e s t i f i e d
t h a t on many o c c a s i o n s i n a f l e e t i n g manner d e c e a s e d would s t a t e
t o him t h a t s h e would l i k e t o o r needed t o change h e r w i l l . His
t e s t i m o n y a l s o i n d i c a t e s t h a t an a t t o r n e y named Horkan, now de-
c e a s e d , may have p r e p a r e d a w i l l f o r d e c e a s e d .
A few h o u r s b e f o r e t h e d e a t h of d e c e a s e d , a t t o r n e y R o b e r t
H o l t e r o f Bozeman, went t o t h e h o s p i t a l a t t h e r e q u e s t o f a f r i e n d
of the deceased for the express purpose of preparing a will for
the deceased. During the course of the conversation with Holter,
which lasted 20 to 30 minutes, Holter was unable to determine
what deceased wished to do with her estate. He was unable to
get enough information from his conversation with her to prepare
a will.
Attorney H.R Bolinger of Bozeman testified that he thought
he might have drafted a will for deceased because of the things
that he remembered about the will. He did not have a distinct
recollection of a lot of the things that were in it. Bolinger
testified that he had represented deceased in connection with
her husband's estate in 1949. The copy of the will admitted to
probate bears the year 1949. He also testified as to what his
ordinary practice is for the execution of wills and that in the
ordinary course of practice he, as well as his secretary, would
have signed as witnesses. ~olinger,however, did not have a
distinct recollection of either he or his secretary signing the
will.
Although Bolinger did testify that ordinarily he did not
make copies of a will, he did state that if somebody specifically
asked him for a copy that he would make one.
A search of the desk in the living room of the deceased's
house uncovered an envelope marked "Will" with the name of Bolinger
& Bolinger on it. There was no will in this envelope. Also found
in the desk was an envelope with the designation "Last Will and
Testament" typed upon it. On that document, in deceased's hand-
writing, was the statement, "Horkan has signed one." A search
of Horkan's files failed to produce the original of the will.
Appellants' sole issue on appeal is whether the district
court erred in admitting the document purporting to be the Last
Will and Testament of Una M. Newman, deceased, to probate.
The resolution of the issue presented is determined by
reference to sections 91-1201 and 91-1202, R.C.M. 1947, which
provide the requirements for proving a lost or destroyed will.
Section 91-1201, R.C.M. 1947 states as follows:
"Whenever any will is lost or destroyed, the
district court must take proof of the execution
and validity thereof, and establish the same;
notice to all persons interested being first
given, as prescribed in regard to proofs of
wills as in other cases. All the testimony given
must be reduced to writing, and signed by the
witnesses."
Section 91-1202, R.C.M. 1947 provides:
"No will shall be proved as a lost or destroyed
will, unless the same is proved to have been in
existence at the time of the death of the testator,
or is shown to have been fraudulently destroyed
in the lifetime of the testator, nor unless its
provisions are clearly and distinctly proved by
at least two credible witnesses."
The provisions of these statutes when taken together re-
quire that three criteria must be met in order to admit a lost
or destroyed will to probate. These are: (1) proof as to the
execution and validity of the will; (2) proof that the will was
in existence at the time of the death of the testatrix; and (3)
clear and distinct proof of the provisions of the will by at
least two credible witnesses. While the district court concluded
in its findings of fact that the will had been duly executed, we
must hold that the district court erred in admitting the purported
will to probate for the reason that the criteria of section 91-
1202, R.C.M. 1947 were not met.
The burden of proving the existence of a lost or destroyed
will in Montana is clear. This Court in In re Colbert's Estate,
31 Mont. 461, 471, 78 P. 971, stated:
"Now, as we have heretofore seen, the statute
is to the effect that the proponent of a lost
will must prove either that the will was actually
in existence at the time of the testator's death,
or that it is in existence in contemplation of
law. If it was fraudulently destroyed in his
lifetime, it is still so in existence. If
appellant cannot prove that the will was in
existence, either actually or in contemplation
of law, at the time Colbert died, it follows
that his case cannot stand."
Not only do the proponents of the proposed will have
the burden of proof to establish its existence when it is a
lost will, but also where no testamentary papers have been
found after a careful and exhaustive search, as in this case,
a presumption arises that the deceased destroyed the will
animo revocandi (with intention to revoke). Furthermore, this
being the case, the burden of proof is on the proponents, res-
pondents herein, to overcome this presumption, and the proof
required must be "clear, satisfactory and convincing". In re
Colbert's Estate at 468. There is no suggestion of fraud in
this case.
The California court, in In re Flood's Estate, 47 C.A.2d
809, 119 P.2d 168, 170, construing statutes identical to those
in Montana held :
"Appellant contends that the facts bring the case
within the rule stated in 27 Cal.Jur., page 807,
section 141: 'Where the evidence shows that the
instrument cannot be found, and that when last
seen or known to exist it was in the custody or
possession of the decedent, the conclusion of law
is that the writing was destroyed by the decedent,
and that he acted with the intention of effect-
ing a revocation thereof. Nothing else appearing,
the admission of the writing to probate as a lost
or destroyed will must be denied.'"
Respondents contend that there is no evidence in this
case indicating that the will was in deceased's possession at
or near the time of her death, while appellants contend that
there is no proof that the will was in anyone's possession at
the time of death, other than possibly that of deceased. The
Supreme Court of Oregon, in In re McCoy's Will, 49 Ore.579,
90 P..: 1105, 1106, in considering the presumption as heretofore
stated, has said:
" I t must, w e t h i n k , be t a k e n f o r g r a n t e d , t h e r e -
f o r e , t h a t t h e w i l l when l a s t s e e n was i n t h e
c u s t o d y of t h e t e s t a t o r , and s i n c e it c o u l d n o t
be found a f t e r h i s d e a t h a l e g a l presumption i s
r a i s e d t h a t it was d e s t r o y e d by him w i t h t h e
i n t e n t i o n o f r e v o k i n g i t , and t h e burden o f p r o o f
i s on t h e p r o p o n e n t t o overcome t h i s presumption."
I n re S a l t e r ' s E s t a t e , 209 019. 5 3 6 , 307 P.2d 515,
522.
I n t h e i n s t a n t c a s e i t must be t a k e n f o r g r a n t e d , t h a t
t h e w i l l when l a s t s e e n was i n t h e c u s t o d y of t h e d e c e a s e d .
T h i s would be presumed from t h e f a c t t h a t a t t o r n e y H o l t e r t e s t i -
fied: " H e r answer was of s u c h t h a t it l e a d m e t o b e l i e v e s h e
had a w i l l , " and d e c e a s e d i n d i c a t e d t h a t t h e document was k e p t
a t t h e S e c u r i t y Bank. I n a d d i t i o n , t h e t e s t i m o n y of M r s . Mac-
Q u a r r i e and M r . and M r s . Tschache t o t h e e f f e c t t h a t a w i l l had
once been p r e p a r e d b u t , however, was now o u t d a t e d , and a n o t h e r
w i l l was needed s u p p o r t s t h e c o n c l u s i o n t h a t t h e w i l l when l a s t
s e e n was i n t h e c u s t o d y of t h e d e c e a s e d .
T h e r e f o r e , it must be presumed t h a t t h e w i l l , when l a s t
s e e n , was i n t h e c u s t o d y of t h e t e s t a t o r and t h a t t h e d e c e a s e d
destroyed t h e w i l l . A s t h i s Court has previously s t a t e d :
" * * * The w i l l i s , a c c o r d i n g t o law, of an
ambulatory c h a r a c t e r . N one e x c e p t t h e t e s t a t o r
o
h a s any r i g h t s i n it w h a t s o e v e r . No o t h e r p e r s o n
c a n have any r i g h t s i n it u n t i l t h e t e s t a t o r i s
d e a d . H e may change it a t p l e a s u r e , and human
e x p e r i e n c e h a s shown t h a t w i l l s a r e a l m o s t always
destroyed s e c r e t l y . " In r e C o l b e r t ' s E s t a t e a t
471.
The e v i d e n c e i n t h i s c a s e i s n o t c l e a r , s a t i s f a c t o r y
and c o n v i n c i n g t o overcome t h e r e b u t t a b l e presumption t h a t t h e
deceased destroyed her w i l l . To t h e c o n t r a r y , t h e c o n c l u s i o n
t o be drawn from t h e t e s t i m o n y i s t h a t t h e d e c e a s e d d i d have a
w i l l , and h a v i n g e x p r e s s e d d i s p l e a s u r e w i t h t h e w i l l , s e c r e t l y
destroyed it. S i n c e t h e r e was no proof t o overcome t h e p r e -
sumption o f d e s t r u c t i o n by t h e d e c e a s e d , t h e d i s t r i c t c o u r t
e r r e d i n concluding:
" * * * the original of said document was lost
or destroyed unintentionally and not destroyed
with the intent of revoking the same. * * *I1
For the reason that the respondents did not meet their
burden of proof that the will was actually in existence or in
existence in contemplation of law at the time of deceased's
death, and for the reason that the presumption of destruction
is not overcome by the testimony adduced at the hearing, the
district court erred in admitting the will to probate.
Having concluded that the criteria as to proof of the
existence of the will was not met, we need not at this time
consider whether the provisions of the will were clearly and
distinctly proved.
For the foregoing reasons, the order of the district
court admitting the copy of the will to probate is hereby
reversed and the estate of the deceased is to be distributed
by the laws of intestate
J