French's Estate, In re

• Decision Date: 21 April 1960
• Docket Number: No. 9921,9921
• Citation: 351 P.2d 548,137 Mont. 228
• Parties: Matter of the ESTATE of Mabel FRENCH, Deceased. Edyth M. BROWN, Objector and Appellant, v. Emmett KELLY and Earl T. Gangner, Petitioners and Respondents.
• Court: Montana Supreme Court

Page 548

351 P.2d 548

137 Mont. 228

Matter of the ESTATE of Mabel FRENCH, Deceased.

Edyth M. BROWN, Objector and Appellant, v. Emmett KELLY and Earl T. Gangner, Petitioners and Respondents.

No. 9921.

Supreme Court of Montana.

April 21, 1960.

Rehearing Denied May 11, 1960.

John H. Risken, Helena, for appellant.

John H. Risken, Helena, argued orally for appellant.

W. E. Coyle and Lewis F. Rotering, Butte, for Gangner.

Thomas F. Kiely, Butte, for Kelly.

Thomas F. Kiely, Butte, and W. E. Coyle, Butte, argued orally for respondents.

CASTLES, Justice.

This is an appeal from an order of the district court in and for the county of Silver Bow admitting a holographic will to probate. Mabel French died in Butte on July 13, 1957. The only surviving relatives are several cousins, all of whom are nonresidents of the state. After her death, several documents were discovered among the decedent's effects, two of which purported to be testamentary dispositions of her property.

The sole beneficiary, under both of the above instruments, petitioned the court to admit a typewritten will bearing the date July 18, 1955, to probate. Edyth M. Brown, a cousin of the testatrix, filed objection to admitting this will to probate and subsequently a hearing was held to determine whether or not this will could qualify for probate.

Petitioner's exhibit No. 1 is a holographic will entirely in the handwriting of the testatrix and signed by her. Appended to the body of this will is the phrase 'In witness whereof I have herewith set my hand and seal this [blank] day of [blank] 1951. [signed] Mabel French.' On the back of this instrument the testatrix wrote 'I started to make out a will but owing to attorney's fees, tax, etc., I make it the other way for you Mabel.'

On July 18, 1955, the testatrix executed petitioner's exhibit No. 2, which is a typewritten will signed by Mabel French and witnessed by Margaret H. Tullis and Pauline Murphy Hitt. This will, though witnessed, had no attestation clause and the name of the sole beneficiary and executor was filed in by pen in the handwriting of testatrix rather than being typewritten.

The sole beneficiary, Dr. Earl T. Gangner, did not appear at the hearing. Mrs. Margaret Tullis was the only witness introduced by the petitioner to prove the validity of the will. She testified that she and the testatrix were good friends up until two years before the hearing was held, and that the witness was of sound mind when this will was executed. Further testimony by this witness showed that the testatrix had signed this will in the presence of both witnesses and all were present when the witnesses signed. The testatrix had stated to the witnesses that the document was her will and she asked them to witness it for her. On direct examination, the witness was asked 'You don't know anything about the contents of the Will?' She replied, 'No, I didn't look at that. I just witnessed her signature.' Later in the testimony the witness volunteered this statement: 'And this I do know: this was blank [indicating the space where the name Earl T. Gangner, M.D., had been inserted by the testatrix]. I know that. There was nothing on there, no signature. Only her signature, I witnessed that. She signed that in front of Pauline and myself.' On cross-examination the witness stated: 'That's right. It was a blank. She wouldn't put that in there and let me see it anyway. Anyway I wouldn't look for it because it wasn't my business, and they both were blanks.'

The other exhibits introduced by the petitioner are, under our view of the case, of no importance in this appear except to note that they all express an intent that Dr. Gangner should receive certain assets which the testatrix possessed. One exhibit, dated the same day as the typewritten will, contains instructions to Dr. Gangner regarding her burial and in general expresses the trust reposed in Dr. Gangner by the testatrix.

At the conclusion of the testimony, the trial judge took the matter under advisement and subsequently admitted petitioner's exhibit No. 1, the holographic will, to probate. In the same order he sustained the heir's objections to exhibit No. 2, the typewritten will, and denied it probate.

The respondent contends that the holographic will is valid even though the only date it bears is the year 1951. The court below based its order admitting this will to probate on the case of In re Irvine's Estate, 114 Mont. 577, 139 P.2d 489, 147 A.L.R. 882. The statute which we are here concerned with is section 91-108, R.C.M.1947, which provides as follows:

'Definition of a holographic will. A holographic will is one that is entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of this state, and need not be witnessed.'

In the Irvine case, this court held that a holographic will, bearing the month and year but not the day on which the will was executed, constituted substantial compliance with the above statute and was entitled to be admitted to probate.

The statutory requirement of dating a holographic will is based primarily on two grounds: (1) In order that the courts may determine whether the testator had the requisite testamentary capacity when he executed the will; and (2) If there are two or more wills, containing incompatible provisions, in order to determine which is the later will. In re Noyes' Estate, 40 Mont. 190, 105 P. 1017, 26 L.R.A.,N.S., 1145. It is possible that if the month is given this is a sufficient delimitation to enable the courts to determine the above questions should they arise. Given only the year, however, we fail to see how the courts could determine such questions. In this latter situation, the contestant would have each of 365 days, testamentary incapacity on any one of which could invalidate the will. Conversely, the proponent of the will would have to be prepared to rebut evidence of testamentary incapacity on any day throughout the given year. Due to these complications, we feel that a holographic will which is dated with the year but not the day or month on which it was executed does not constitute substantial compliance with section 91-108, supra.

In addition to what has been said above, the writing on the bank of this instrument illustrates, when viewed with subsequent documents and actions, that the testatrix did not intend this instrument to operate as a will. If the requisite animus testandi is lacking, the instrument cannot stand as a valid will. In re Watts' Estate, 117 Mont. 505, 160 P.2d 492. It is evident that Mabel French did not intend this instrument to be her last will and testament because of this writing and also because the typewritten will was in exactly the same language as the holograph, thus effectuating the intent which she expressed on the back of the holograph to 'make it the other way'.

A probate proceeding is equitable in nature and is governed, on appeal, by rules of equity. In re Woodburn's Estate, 128 Mont. 145, 273 P.2d 391. The district court, in admitting the holographic will to probate, sustained the heir's objections to the typewritten will but gave no reasons for this ruling. We must infer that this action was taken because the court had decided to admit the holographic will to probate. Under our view, that the holographic will is invalid, it is necessary to briefly consider the typewritten will so that on remand the district court will know our views on the subject.

The first objection to the typewritten will is that it lacks an attestation clause. While we feel that the better practice is to include an attestation clause so that it may operate as prima facie evidence of the validity of the will, such a clause is not absolutely necessary under our statute, section 91-107, R.C.M.1947, which requires no formal attestation clause. In re Woodburn's Estate, supra; see also 94 C.J.S. Wills § 196; 57 Am.Jur., Wills § 296; 5 Wigmore, Evidence, § 1512 (3d ed. 1940); 1 Page, Wills, § 373 (3d ed. 1941); and cases cited therein.

Since there is no question here regarding compliance with the statutory formalities of execution and attestation, the lack of an attestation clause should not cause the will to be denied probate. It is the fact of attestation and not its recitation that the statute requires.

The second objection to the typewritten will is that there are blanks in the will which were filled in by the testatrix with the name of the sole beneficiary and executor, Dr. Earl T. Gangner. There is a well-recognized presumption of law that blanks in a will which are left for the insertion of names of legatees are presumed to have been filled in before the execution of the will. See generally 67 A.L.R. 1138, 1144 and 34 A.L.R.2d 619, 634.

This court has held that 'No will, fair upon its face, should be denied probate, except for good and sound reasons. The policy of our courts is to sustain a will, if it is possible to do so, and every reasonable presumption will be indulged in favor of the due execution of a will. The presumption is against intestacy.' In re Woodburn's Estate, 128 Mont. at page 151, 273 P.2d at page 394, supra.

In the instant case the writing, in the two places where the name, Dr. Earl T. Gangner, has been inserted, is apparently in the same handwriting, and signed with the same pen and ink as the signature of the testatrix.

Given the above presumptions, (1) against intestacy and (2) that the blanks were filled in before execution, coupled with the similarities of pen, ink and handwriting, we feel that the district court should reconsider the typewritten will. The only evidence which raises any question as to the validity of the will is the self-impeaching statement of Mrs. Tullis. This statement should be carefully reconsidered by the court and further testimony taken if necessary so that the court will be in a position to determine whether the testimony of this witness is worthy of belief...