Statement of the Case. This is an appeal from an order disallowing probate of the purported last will and testament of Sallie Marston Bragg, deceased, because of its alleged improper execution. Contestants are natural heirs of the deceased. Contestee Helen Daems is *Page 158 a devisee named in the purported will, and contestee L.R. Daems is the purported named executor.
The executor filed his petition for probate of the purported will on March 4, 1937, which was set for hearing on March 15 thereafter. On this latter date the testimony, in affidavit form, of the subscribing witnesses, M.J. O'Connell and Virginia Davis, was filed. These affidavits were of the usual form, in that they set forth the testimony of the witnesses, stating that the will was executed within the prescribed statutory requirements. On the same day the contestants, by their attorney, filed written opposition to the purported will, praying that the same be not allowed to probate. Contestees filed answer to the written objections, and a hearing was had the same day. Thereafter the trial court granted contestants' motion to strike the aforementioned affidavits of the subscribing witnesses from the files, for the reason that their oral testimony at the hearing did not conform to such written testimony. Findings of fact and conclusions of law were filed by the trial judge, upholding contestants' opposition to the will, and his order in conformity therewith was filed.
It appears from the record that about August 15, 1936, Sallie Marston Bragg appeared at the place of business of M.J. O'Connell at Bozeman, Montana, with a typewritten document intended as her last will and testament. The document consisted of two typewritten pages; the first page included the entire body of the will, together with the place for the signature of the testatrix; the second page contained only the attestation clause, together with places for the signatures of the required witnesses. Her mission was to have Mr. O'Connell act as a witness to her will.
Mr. O'Connell testified at the hearing as follows: "Mrs. Bragg came to my place of business. She brought this will in for me to sign and asked me if I would sign her will. I read the will over before I signed it. I am quite sure it [her signature] was there but I could not exactly swear to it, but I think it was there." He further testified that he did not see Mrs. Bragg sign the will, and that she did not say that it was her *Page 159 signature, or one made at her request, which appeared on the will when he signed as witness.
Virginia Davis, the other subscribing witness, and who was Mr. O'Connell's secretary, testified as follows: "I recall her [Mrs. Bragg] coming into the laundry on or about the 15th day of August, 1936. At the time she came in, she said she had her will and wanted — she asked for Mr. O'Connell in the first place, and she wanted us to sign the will. I could not say that I heard all of the conversation which took place between Mr. O'Connell and Mrs. Bragg, but I heard her say that she wanted me to sign her will, and that she needed another witness to the will. Mr. O'Connell called me and asked me to act as a witness to the will. I did not look over the will before I signed, but I heard her say that that was her will. I could not swear that her signature was on the will at the time I signed it. My witnessing was on the other page. There was not anything said there except that this was her will but she did say that it was her will. She did nottell me that she had signed it." In answer to direct examination as to whether she heard Mrs. Bragg tell Mr. O'Connell that she [Mrs. Bragg] had signed the will, the witness Davis answered: "I don't believe I did."
The trial court found that Mrs. Bragg did not subscribe the will in the presence of the witnesses, nor did she acknowledge to them that she had subscribed her name thereto previously.
The contestees' (appellants here) assignments of error present two propositions to be answered by this court: First, whether there was error in striking the written testimony of the subscribing witnesses from the record; and, second, whether the purported will of Sallie Marston Bragg was properly executed so that it should have been admitted to probate.
Opinion of the Dissenting Justice. 1. In considering the first proposition, we fail to see any error in the trial court's action. It is the usual probate practice to reduce to writing, in affidavit form, the testimony of the subscribing witnesses who appear at the hearing to prove the will. *Page 160 Such written testimony sets forth statements showing that all the necessary steps for the proper execution of the particular will were carried out. Such were the contents of the affidavits stricken by the trial court in the case at hand.
After reading the oral testimony of the two subscribing witnesses given at the hearing, there is no question but that the stricken affidavits contained untrue statements regarding the actual execution of the Bragg will. The affidavits being untrue, we agree with the trial judge that they could serve no purpose in the probate records, and therefore no error or prejudice was committed by expunging them.
We can find no statute making it mandatory that where both subscribing witnesses are present at the hearing to prove the will their testimony must be reduced to writing, in affidavit form. Especially are we unable to find statutory demands thatuntrue affidavits of the subscribing witnesses must be filed.
Sections 10032 to 10038, Revised Codes, prescribe the method for contesting wills and the procedure for hearings on such contests. Section 10035 provides that all subscribing witnesses living within the county shall be examined. Section 10036 provides that their testimony, reduced to writing, shall be good evidence in any subsequent contests. Obviously, this latter section does not contemplate that untrue testimony of the subscribing witnesses, in the form of written affidavits, and which, in fact, are not true transcripts of their testimony given at the hearing, shall be preserved in the records.
2. Now, taking up the major matter of this appeal, we come to the question whether or not the purported will was properly executed under the prescribed steps of section 6980, Revised Codes. I think that it was not. Under our past decisions, all that need be found to nullify a will on the ground of improper execution is substantial evidence. (In re Cummings' Estate,92 Mont. 185, 11 P.2d 968; In re Silver's Estate, 98 Mont. 141,38 P.2d 277.) It is my opinion that the evidence in this case preponderates that the will was improperly executed. *Page 161
Section 6980, supra, provides:
"Every will, other than a nuncupative will, must be in writing; and every will, other than a holographic will, and a nuncupative will, must be executed and attested as follows:
"1. It must be subscribed at the end thereof by the testator himself, or some person in his presence and by his direction must subscribe his name thereto;
"2. The subscription must be made in the presence of the attesting witnesses, or be acknowledged by the testator to them to have been made by him or by his authority;
"3. The testator must, at the time of subscribing or acknowledging the same, declare to the attesting witnesses that the instrument is his will; and,
"4. There must be two attesting witnesses, each of whom must sign his name as a witness, at the end of the will, at the testator's request, and in his presence."
There have been many Montana cases which have had for consideration the interpretation of this section, but none which have presented the exact problem now before us. We obtain from my study of these past cases an unbending adherence to a strict and literal construction of all the provisions of this section. We have the cases of In re Miller's Estate, 37 Mont. 545,97 P. 935; In re Noyes' Estate, 40 Mont. 178, 105 P. 1013, 1015;In re Williams' Estate, 50 Mont. 142, 145 P. 957; In reCummings' Estate, supra; and In re Silver's Estate, supra, which, throughout the years have closely construed subsection 3, and demanded that by some means the maker of the will must acknowledge and publish to the witnesses the fact that the instrument is his will.
The case of In re Miller's Estate, supra, recognized the necessity of conforming to the requirements of subsection 1, as to the method of signing. The same case, and also the cases ofIn re Noyes' Estate, In re Cummings' Estate, and In reSilver's Estate, supra, likewise have been unchanging in requiring the provisions of subsection 4 to be complied with. And, as before stated, the court is now called upon for the first time to interpret the meaning of subsection 2, and to determine what constitutes a compliance with its mandates. *Page 162
In the first place, we obviously would be guilty of judicial legislation if we were to rule that in executing a will, a testator may properly overlook subsection 2. Moreover, there is little difficulty in interpreting just what step in the orderly execution of a will this subsection demands. Even if we were to apply loose and liberal rules of construction, we would be unable to say that the maker of the will must do anything less than this subsection 2 in simple, unequivocal language says he must do. He must do either of two things: He must either sign his name in the presence of the two subscribing witnesses; or, if he signs beforehand, he must acknowledge to the subscribing witnesses that he has signed, and that the signature is his signature. I do not agree with the opinion of the majority that an acknowledgment or publication of the will, where the testator remarks, "This is my will," also acts as an acknowledgment of the signature which was subscribed outside the presence of the witnesses. The legislature exercised great caution to place in separate paragraphs the various steps for the execution of a will. Paragraph 3 (subsec. 3) says the will itself must be published. Paragraph 2 (subsec. 2) says that the subscription must be acknowledged. The legislature having been as explicit as possible in requiring two separate acts, can this court wisely say that the performance of either of the two prescribed steps automatically fulfills the other? I think not.
For the sake of emphasis, and for the guidance of future will makers, I think it proper to restate the reason for this court's careful views in saying what constitutes a proper execution of a will. To restate such reason, I can think of no better language than that which appears in the case of In re Noyes' Estate, supra, which I quote: "The right to make a testamentary disposition of property is not an inherent right; nor is it a right guaranteed by the fundamental law. Its exercise to any extent depends entirely upon the consent of the Legislature, as expressed in the statute enacted on the subject. It can withhold or grant the right, and if it grants it, it may make its exercise subject to such regulations and requirements as it pleases. It may declare the rules which must be observed, touching the execution *Page 163 and authentication of the instruments necessary to indicate the testator's intention and make a compliance with them mandatory. (In re Walker's Estate, 110 Cal. 387, 42 P. 815 [1082], 30 L.R.A. 460, 52 Am. St. Rep. 104.)" The court there also quoted with approval language appearing in the California case of In reWalker's Estate, supra, which we think is again worthy of emphasis. The California court said:
"`It is not for the courts to say that these requirements, or any of them, are mere formalities, which may be waived without impairing the status of the instrument. It is not for courts to say that a mode of execution or authentication, other than that prescribed by law, subserves the same purpose, and is equally efficient to validate the instrument. The legislative mandates are supreme, and there is no right to make testamentary disposition except upon compliance with those mandates. It may be freely conceded that the question under consideration is of a nature purely technical, but it is to be remembered that the whole subject-matter of the execution and authentication of wills is technical, and nothing else; and it must not be forgotten that the technicalities are those which the law-making power has the right to impose, and has imposed, upon the maker of a will.'
"The purpose of the formalities prescribed is to prevent simulated and fraudulent writings from being probated and used as genuine. While the application of the strict rule of construction may sometimes defeat the intention of the testator as manifested by an imperfectly executed and authenticated writing, yet in the long run such statutes tend to promote justice, by lessening, so far as possible, the opportunity for fraud, which history and experience have demonstrated to be feasible and measurably safe in the absence of them. ([In re] Estate of Seaman, 146 Cal. 455,80 P. 700, 106 Am. St. Rep. 53 [2 Ann. Cas. 726].) After the writing is shown to have been executed and authenticated by observance of the technical requirements which the legislature has imposed, then the instrument will be construed liberally in order to give effect to the testator's intention. Upon the application for probate, however, the sole inquiry *Page 164 about which the court is concerned is whether these requirements have been complied with. The courts may not, therefore, out of regard for the supposed intention of the testator, however clearly it may be manifested by the attendant circumstances, adopt a rule which would open the way for the same frauds which the statute was designed to prevent. The restrictions made by it are reasonable and easily understood, and, as experience has shown, it is far safer for society that a rule be adopted that requires a strict compliance with them, and, as a consequence, that occasionally an honest attempt to execute a will be defeated, than that the protections thus thrown about the testator should be disregarded because of an undue respect for his intentions, and the way be left open for the multitude of frauds and perjuries which would result."
Jurisdictions which have a statute similarly worded as our section 6980, providing a definite method for executing wills, have all been strict in their constructions. The Montana supreme court has heretofore demanded that all the prescribed statutory steps in executing a will be fulfilled. There seems to be no new or pressing reason for this court, and other courts, to begin a relaxation of such doctrine of strict construction. The reason for such a doctrine is the same today as when this state and other states patterned their law on the execution of wills after that of 1 Victoria. On the contrary, it would be more logical and sound to argue that our decisions on this phase of the law should become more strict as the years pass. At least, it would not be fallacious for us to reason that the laymen and lawyers alike are wiser today than they were fifty years ago on the subject of will making, because of our previous decisions, and, therefore, the technical requirements should be easier for them to follow.
The factual circumstances on the question of acknowledgment of Mrs. Bragg's signature in the present case, briefly summarized, are as follows: It is undisputed that if Mrs. Bragg signed the purported will, she signed it before she came into the presence of the two witnesses. There is some doubt, seemingly even in the mind of the witness O'Connell, whether he *Page 165 saw the signature and whether she told him it was hers. But from the testimony of the other witness, Miss Davis, it is clear that she (Miss Davis) did not see the purported signature of Mrs. Bragg, nor was this witness informed by words, action, or innuendo, that there was a subscribing signature on the will, and that, if there was such a signature, it was Mrs. Bragg's. The fact that Mrs. Bragg told Miss Davis that "this is my will" is, under the foregoing statements, not tantamount to an acknowledgment of her purported signature. (See Lewis v.Lewis, 11 N.Y. 220, where it was stated: "Upon this branch of the statute [same as subsection 2 of section 6980, Rev. Codes], it is the subscription, not the will, which is to be acknowledged." This quotation is also cited with approval in the late New York case of Matter of Redway's Will, 238 A.D. 653,265 N.Y. Supp. 848.)
Although there is considerable doubt in my mind, I will assume, for the sake of this opinion, that there was a proper acknowledgment of Mrs. Bragg's signature by the witness O'Connell. But it is my strong conviction that an acknowledgment of subscription to one of the witnesses only is insufficient. The principal object of this provision is that two witnesses may say, each for himself, from positive knowledge, that the subscription was made by the testator. To this effect is the case ofMitchell v. Mitchell, 16 Hun, 97, affirmed in 77 N.Y. 596, and quoted with approval in the case of In re Keeffe's Will,155 A.D. 575, 141 N.Y. Supp. 5, affirmed in In re Keefe'sWill, 209 N.Y. 535, 102 N.E. 1104. To be a sufficient acknowledgment, it is at least necessary that both witnesses see the testator's signature; this Miss Davis did not do. The leading case on this point is the case of In re Mackay's Will, 110 N.Y. 611,18 N.E. 433, 434, 6 Am. St. Rep. 409, 1 L.R.A. 491, where the court said: "Subscribing witnesses to a will are required by law, for the purpose of attesting and identifying the signature of the testator, and that they cannot do unless at the time of the attestation they see it."
That the California court recognizes the requirement of acknowledgment of the testator's signature, where it was placed *Page 166 on the will outside the presence of the witnesses, in addition to the necessary publication of the will, see the cases of In reEmart's Estate, 175 Cal. 238, 165 P. 707, L.R.A. 1917F, 866, and In re Estate of Lawrence, 196 Cal. 321, 237 P. 738.
The result reached by me in this case is fortified primarily by decisions of the highest courts of the states of New York and California, for the reason that these two jurisdictions have identically worded statutes as our section 6980, and have been as consistent as this court in rigidly enforcing the statutory requirements in will making. I am not interested in decisions of other jurisdictions which have differently worded laws relating to the execution of wills, and especially those that are patterned after the English statute of frauds, which is less technical in its demands. That which will be a valid execution of a will in different jurisdictions depends basically upon the language of their statutes, is stated in Schouler on Wills, fifth edition, section 321. (See, also, 28 R.C.L. 125, and 68 C.J. 694 et seq.)
The order of the trial court should be affirmed.