Charlebois v. Bourdon (In re Estate of Charlebois)

• Decision Date: 26 January 1887
• Citation: 6 Mont. 373
• Parties: In re Estate of CHARLEBOIS, Deceased. CHARLEBOIS v. BOURDON, Adm'r, etc.
• Court: Montana Supreme Court

6 Mont. 373

In re Estate of CHARLEBOIS, Deceased.CHARLEBOIS

v.BOURDON, Adm'r, etc.

Supreme Court of the Territory of Montana.

January 26, 1887.

Appeal from district court, Missoula county.

Petition to set aside probate of a will and appointment of administrator.

Stevens & Bickford, for appellant, Bourdon, Adm'r, etc.

Woody & Marshall, for respondent, Charlebois.

WADE, C. J.

This is an appeal from a judgment and order of the district court affirming an order of the probate court of Missoula county vacating and setting aside an order of said court admitting a certain written instrument purporting to be the last will and testament of Charles Charlebois, deceased, to probate, and the appointment of Leon Bourdon, the legatee therein named, administrator with the will annexed of said decedent. The order vacating the order of admission to probate was made upon the petition of Hilaire Charlebois, a son of the deceased, on behalf of himself, a daughter, and a granddaughter, heirs at law of said deceased.

It appears from the record that on the twenty-second day of November, 1880, the said Leon Bourdon presented a paper purporting to be the last will and testament of Charles Charlebois, late of Missoula county, deceased, to the probate court of said county, dated September 30, 1880, in which said Leon Bourdon is named as devisee, together with a petition, in which is set forth the date of the death of said deceased, a description and the value of his estate, the names of the subscribing witnesses to his will; that the same was executed by the testator, under no duress, restraint, or undue influence; and that the testator died at the age of 70, leaving no heirs or next of kin in the territory or elsewhere, to the knowledge of said petitioner. Wherefore the petition prayed that said will be admitted to probate, and that he be appointed administrator of said estate with the will annexed. Thereupon said probate court appointed Saturday, the fourth day of December, 1880, at 1 o'clock P. M., for hearing said application for the admission of said will to probate, and ordered the clerk of said court to publish a notice thereof, not less than 10 days before the day of such hearing, in the Weekly Missoulian, a newspaper printed and published in said county of Missoula, which order was dated on the twenty-second day of November, 1880. Thereafter, on the said fourth day of December, 1880, the court made an order continuing said hearing until the eleventh day of December, 1880, at 1:30 P. M.

It further appears that on the tenth day of December, 1880, proof of publication of notice of said hearing was filed, in which the publisher of said newspaper makes affidavit that said notice was published in his said newspaper for two consecutive weeks, in the issues of November 26 and December 3, 1880. Thereafter, on the thirteenth day of December, 1880, the court, having taken the proof, admitted said will to probate, and issued letters of administration, with the will annexed, to said Leon Bourdon, who proceeded to settle said estate, and on the sixteenth day of August, 1881, rendered his final account; whereupon said court, on the twelfth day of September, 1881, entered an order of distribution, decreeing and distributing the whole of said estate to said Leon Bourdon, the said devisee under said will. Afterwards, on the twenty-fifth day of September, 1885, Hilaire Charlebois, a son of said deceased, for himself and the other heirs at law, presented a petition to said probate court, asking that the probate of said pretended will be set aside, and that the order appointing said administrator be annulled, for the reason, among others, that said court never acquired jurisdiction to make the order admittingsaid will to probate, for that, by the terms of the statute in such case made and provided, before any last will and testament can lawfully be admitted to probate, notice of the time and place of hearing for that purpose is required to be published for three consecutive weeks in some newspaper of general circulation in the county where such hearing is to take place; whereas notice of the hearing in question was published for only two consecutive weeks. Thereafter, on the twentieth day of October, 1885, said probate court, after notice, and a hearing, in which said administrator, and the petitioners were represented by counsel,...