In re Choiniere's Estate

• Decision Date: 08 March 1945
• Docket Number: 8464.
• Citation: 156 P.2d 635,117 Mont. 65
• Parties: In re CHOINIERE'S ESTATE. v. BUKVICH et al. BROWN
• Court: Montana Supreme Court

156 P.2d 635

117 Mont. 65

In re CHOINIERE'S ESTATE.

BROWN v. BUKVICH et al.

No. 8464.

Supreme Court of Montana

March 8, 1945

Rehearing Denied March 24, 1945.

Appeal from District Court, Second Judicial District, Silver Bow County; Jeremiah J. Lynch, Judge.

Proceedings in the matter of the estate of Marie Choiniere, deceased, on the petition of Helen Brown, for revocation of the probate of one will and for probate of alleged earlier holographic will opposed by Mrs. Sam J. Bukvich and others. From an order denying the petition and denying probate of purported holographic will, Helen Brown appeals.

Affirmed.

H. J. & W. B. Freebourn, H. L. Maury, A. G. Shone, and M. Baxter Larson, all of Butte, for appellant.

Alf C Kremer and Rex Henningsen, both of Butte, for respondents.

CHEADLE Justice.

This is an appeal from an order denying petition of one Helen Brown for the revocation and probate of the will of Marie Choiniere, deceased, and denying probate of a purported earlier holographic will.

Testatrix died in the St. James Hospital at Butte on May 20, 1942. On the same day Kenneth Christie filed petition for probate of her will, the same being admitted to probate without contest on June 1, whereupon Christie, named therein as executor qualified as such. Under the terms of this will, Mrs. Sam J Bukvich was the principal beneficiary.

On July 26, 1942, Helen Brown, contestant, a resident of Idaho, filed her petition for revocation of the probate of the will in which Mrs. Bukvich was named as chief beneficiary hereinafter referred to as the Bukvich will, and requested the probate of a purported holographic will in which she was named as beneficiary, and asked that the public administrator be appointed administrator de bonis non. This will was in words and figures following: "16 December 1941. I appoint my niece Helen Brown my legataire without bond. Marie Choiniere."

The petition for revocation of the Bukvich will, in so far as here pertinent, substantially alleged that the deceased at the time of her death was a widow with no children, grandchildren or other descendants or heirs at law surviving her; that at the time of the making of the purported will the said Marie Choiniere was not of sound or disposing mind and was not competent to make the last will or testament at the time of its execution, and was not free at that time from undue influence or fraud; that there was no due or legal execution of said will by the decedent or by the subscribing witnesses; that the said purported will was not acknowledged nor attested nor witnessed in accordance with the requirements of the laws of Montana and that said decedent never did at any time declare to either of the subscribing witnesses that the said instrument was her will or request them to sign the same as witnesses; that at no time did the decedent know the contents of the will.

Further, that at the time of making and signing of the purported will the decedent was not of sound or disposing mind in that previous to the hour when the said will was signed the said decedent, then being of the age of 76 years, was seized by a great and violent pain and suffering of mind and body caused by some sickness in the nature of a blood clot in the bowels, from which she died approximately 28 hours after the first attack; that such pain and suffering was sufficient to and did overpower completely the reason and will of said decedent throughout the day of May 19; that during said day there were administered to her large and overpowering doses of morphine and other opiates and sedatives; and that by the time the said purported will was written and presented to her for signature and at the time that she signed the same, such large and overwhelming doses of morphine and other opiates to allay pain had been administered to her that all of her powers of reasoning and of will were completely overcome and suspended, which condition existed at all times from 3 o'clock a.m. of May 19 up to the time that the said will was presented to her and signed. Further, that for a period of one month previous to the death of Marie Choiniere and before the signing of said will, Mrs. Sam J. Bukvich, beneficiary, had exercised undue influence and control over the deceased by making false statements to her that petitioner had turned against her and abandoned her, although the deceased had for many years cared for petitioner and treated her as a daughter, during which time petitioner had shown toward deceased affection, fondness and respect; that petitioner, being the niece of Oliva Choiniere, decedent's husband, had for many years lived during her vacations from convent school at the house of the decedent and her husband and behaved toward them with the same respect and affection as if they had been her parents, which affection was mutual.

It is further alleged that on or about December 16, 1941, the deceased being of sound and disposing mind and not under duress or fraud or undue influence, made, executed and published her last will and testament, being the holographic will above set forth; that decedent was born in France and resided there until she was 15 years of age and spoke the French language more fluently than English, often interspersing French words into her sentences when attempting to speak English; that in French the word "legataire" means both legatee and devisee; that in French common law, i. e., the Code Napoleon, the difference between legatee and devisee is not expressed; that by using the word "legataire" the deceased intended that Helen Brown was to be legatee and devisee of all of her property.

The Bukvich will, including the attestation, on its face appears to have been executed in accordance with all statutory requirements.

After a motion to strike portions of the petition and a demurrer had been overruled, the contestee Kenneth Christie, named as executor in the Bukvich will, filed his answer denying all of the material allegations upon which petitioner based her demand that probate of that will be revoked. The hearing was concluded before the Hon. Jeremiah J. Lynch, judge of the district court, on March 3, 1943. Thereafter findings were adopted, and judgment made and entered as above indicated.

The question for determination is as to whether the record contains substantial evidence to sustain the findings and judgment of the trial court. Sanders v. Lucas, 111 Mont. 599, 111 P.2d 1041; In re Bright's Estate, 89 Mont. 394, 300 P. 229.

Errors assigned are findings:

1st. That at the time of executing the will testatrix was of sound and disposing mind and memory, and competent to dispose of her property by will.

2nd. That at the time testatrix signed the will its contents were known and approved by her.

3rd. That testatrix signed the will in the presence of the subscribing witnesses, and at that time declared to them that it was her will and at her request they signed their names as witnesses in her presence and in the presence of each other.

4th. That Mrs. Sam J. Bukvich (the chief beneficiary) did not solicit testatrix to make said will, or in any manner influence her to do so, or influence her at all as to the disposition of her property; that the said will was her free act and conformed to her wishes and was not the product of any undue influence exercised upon her by anybody.

We address our first inquiry to the question of whether or not contestant overcame, by substantial evidence, the presumption of due execution raised by the proving of the will and its admission to probate. It should be borne in mind that this is a contest after probate, and it is conceded that the will was signed by the testatrix. Under similar circumstances, this court In re Silver's Estate, 98 Mont. 141, 38 P.2d 277, 282, said: "the fact that the will had been proved and admitted to...