CLAYBERG, C. C.
Upon the original hearing of this case the court decided that the affidavits of newly discovered evidence were of such character as to warrant the granting to appellant of a new trial in the court below. The court, upon motion, granted a rehearing upon this point alone. Upon the rehearing, counsel for the state take the position that these affidavits are insufficient to entitle appellant to a new trial. It is but fair to the court, and to the Commissioner who prepared the former opinion, to say that the attorneys for the state on the former argument treated the question of the sufficiency of these affidavits very briefly. Had they then made as full a presentation of this question as they do now, the result would have been different. The record on appeal is very voluminous, and we were not aided in its examination upon this point by such references thereto as are now presented. For this reason the record was misapprehended in some respects, and some of the language of the opinion was not sufficiently guarded.
The affidavit of John Kempfer is as follows: “John Kempfer, being first duly sworn, on oath deposes and says that he is a resident of Butte City, Silver Bow county, Montana, and that he was acquainted with Charles Colbert for several years prior to his death; that, on several occasions prior to the death of said decedent, said decedent had spoken to him about a certain will which he, the said decedent, had executed during the year 1896, in which said will Frederick W. Scheuer and Lillian E. Burton, now Lillian E. Fluke, were the sole beneficiaries, and that the said will was signed by the said Charles Colbert and by John Woolbeater and William Ackerman as witnesses; that the said decedent, Colbert, had conversed with this affiant on several occasions concerning the said will during his lifetime, and had shown the same to him; and that this affiant was familiar with its contents, substantially, by reason of the fact of the said Colbert's having shown the same to him, and having seen the same, together with the names of the persons attached thereto as witnesses, in addition to the name of the said Charles Colbert. Affiant further says that, some time prior to the death of the said Charles Colbert, he left the City of Butte, Montana, and removed to East Helena, in Lewis and Clarke county, in said state, and remained there until about the 8th day of March, A. D. 1901, which was subsequent to the date of said Charles Colbert's death; that upon his return he occupied a house on a portion of the Emory placer claim, the property of the said Charles Colbert, near a certain house or cabin occupied at that time by John Woolbeater, the proponent of the so-called Woolbeater-Lippincott will in this cause; that a short time after his return from East Helena, and after the date of his occupation of said house on the said Emory placer claim, the said John Woolbeater called on him, and, in a conversation concerning the death of Charles Colbert, which had previously occurred, this affiant asked the said Woolbeater, in substance, what had become of the will made by Colbert during the year 1896, in which the said Frederick W. Scheuer, or Freddie Scheuer, and Lillian E. Burton, or Lillie Burton, were named as beneficiaries, and that thereupon the said Woolbeater withdrew the said will from his pocket and showed it to this affiant, who thereupon looked at it, read it over, and saw that it was the same paper which had been shown to him by the said Colbert during his lifetime, and was in the same condition as when last shown to him by the said Charles Colbert previous to his death, said paper bearing the genuine signature of Charles Colbert as testator, and the names of John Woolbeater and William Ackerman as witnesses. Affiant further says that the said paper was dated in the year 1896, and was signed as hereinabove stated, and was written with a pen and ink upon ordinary legal-cap paper, and was the same paper that had been previously shown to him. Affiant further says that he never mentioned said matters to any one until after the trial of the above action. Affiant further says that the said paper was in existence, as hereinabove stated, at least three weeks or a month subsequent to the date of Charles Colbert's death, and was in the possession of said John Woolbeater, intact, at that time.”
The affidavit of Frederick W. Scheuer is as follows: “Frederick W. Scheuer, being first duly sworn, deposes and says that he is one of the contestants of the so-called Woolbeater-Lippincott will, offered for probate in the above-entitled action, and that he is the proponent of the so-called Scheuer-Fluke will, which was offered for probate as a lost will in the said cause; that since the date of the said trial, and the dismissal of his petition to have the said lost will probated, he has discovered evidence as to the existence of said will subsequent to the death of said Charles Colbert, deceased, which said evidence he was unable to discover prior to the time of said trial, and the dismissal of his petition and contest, although he had inquired of different persons living in the vicinity, and every person whom he thought had any knowledge of the facts or circumstances surrounding the death of said Charles Colbert, and as to whether or not the said will offered by him for probate was in existence at and subsequent to the date of his said death; that he was unable to discover any other evidence than that which was offered upon the trial. Affiant further says that since the date of said trial he has discovered that John Kempfer, an acquaintance of said Charles Colbert, deceased, and also of said John Woolbeater, saw the will offered by this affiant for probate in the possession of said John Woolbeater about three weeks or a month subsequent to the date of said Colbert's death; that the said Woolbeater showed the said will to the said Kempfer, and that the said Kempfer recognized the same as being the will which had been shown to him by Charles Colbert during his lifetime; and that the said Kempfer had read the said will previous to the death of said Charles Colbert, and had seen the signatures attached thereto, and was familiar with the contents thereof, as this affiant is informed and believes. Affiant further says that the said Kempfer never told him, or any one representing him, prior to the date of said trial, or prior to the date of the dismissal of affiant's petition to have the said lost will probated, that he had any knowledge concerning the execution, existence, or possession of said will by Woolbeater subsequent to Colbert's death, and that therefore he could not produce the said witness upon the trial of said cause, or produce his evidence. Affiant further says that he herewith presents, as part of his motion for a new trial, the affidavit of the said John Kempfer, showing the facts that he is familiar with concerning the execution of said will by the said Charles Colbert during his lifetime, and showing the conversation had by Kempfer with Colbert concerning the same, and showing the existence of the said will subsequent to Colbert's death, the same being in the possession of John Woolbeater subsequent to said time. Affiant further says that, if a new trial is granted in this cause, he can produce the said John Kempfer as a witness upon the trial hereof, and produce evidence showing the facts stated in the affidavit of said John Kempfer, herewith filed, and referred to in support of affiant's motion for a new trial, and that he can also show by the said witness that the said will was in existence subsequent to the date of the death of Charles Colbert. Wherefore affiant asks that a new trial be granted in this cause.”
The affidavit of Mrs. Fluke was identical with the affidavit of Scheuer, above quoted, and need not herein be set forth.
Before considering the affidavit of Kempfer, it is necessary to ascertain whether, by the affidavits of appellants, reasonable diligence is shown on their part to discover before the former trial the testimony which they say Kempfer will now give. A careful consideration of the contents of...
