Commissioner's
Opinion. Appeal from District Court, Silver Bow County; Wm
Clancy, Judge.
Petition
by Frederick Scheuer to probate an alleged lost will of
Charles Colbert, deceased. Objections were filed thereto by
the state and others, and from a judgment denying the probate
thereof and from an order denying a new trial the petitioner
appeals. Reversed.
CALLAWAY
C.
Appeal
by one Frederick W. Scheuer from a judgment denying the
probate of an alleged lost will, and from an order overruling
his motion for a new trial. In the beginning we are met with
the objection on the part of respondents that there is no
record before this court upon which it may determine the
matters presented by this appeal. This objection is based
upon certain alleged fatal irregularities occurring in the
preparation and settlement of the statement on motion for a
new trial, which are made to appear by a bill of exceptions.
This bill of exceptions is not made a part of the statement
on motion for a new trial, and under the rule laid down in
Beach v. Spokane R. & W. Co., 25 Mont. 367, 65 P.
106, we cannot consider it. And see State ex rel. Beach
v. District Court, 29 Mont. 265, 74 P. 498; Sweeney
v. Great Falls & Canada Ry. Co., 11 Mont. 34, 27 P. 347;
Arnold v. Sinclair, 12 Mont. 248, 29 P. 1124. We
shall therefore pass on to the merits of the controversy.
Charles
Colbert died on February 14, 1901, in a cabin in Butte. Among
his neighbors he was known as a wealthy, but miserly, old
bachelor, and it may be said incidentally that several of
these expected at his death to find themselves his
beneficiaries. Shortly after his demise the clerk of the
court received through the mails, or from an unknown source,
an instrument purporting to be the last will and testament of
Charles Colbert. The beneficiaries therein named were William
I. Lippincott and John Woolbeater. In due time thereafter
Woolbeater filed his petition asking that the will be
admitted to probate. Thereupon the state of Montana, through
the Attorney General, filed a protest against the probate of
this alleged will, on the ground that it was a forgery. The
state alleged that Colbert died intestate, leaving no
relatives, and that his estate should, under the law, escheat
to it. Shortly after this a petition was filed by appellant,
Frederick Scheuer, alleging that Colbert made a will in 1896,
in which he had named Scheuer and one Lillian E. Burton, now
Lillian E. Fluke, his beneficiaries. It was further alleged
that this will was in existence at the time of Colbert's
death, but had been destroyed or lost, and therefore could
not be produced; that it was witnessed by two persons--John
Woolbeater and one John Doe, whose true name and residence
were unknown. Thereafter appellant filed an amended petition,
asking that the lost will be admitted to probate, and in this
petition stated that the subscribing witnesses to the will
were John Woolbeater and one John Ackerman, both residents of
Butte. Appellant and Lillian E. Fluke also filed objections
to the will proposed by Woolbeater. The state of Montana
likewise filed its objections against the so-called Scheuer
or lost will, alleging that no such will had ever been made
by decedent. Woolbeater did not file any objections to the
so-called Scheuer will. Many pleadings were interposed by the
contending parties, but the foregoing seems to be sufficient
to illustrate their contentions.
In
order to simplify the discussion, it will be well to
ascertain first what are the essentials in proving a lost
will. In every will case under our statute the rule of
procedure is that the proponent of the will must first make
out a prima facie case; that is to say, must make such proof
as would entitle the will to probate in the absence of a
contest. Then the contestant attacks the validity of the
will, the proponent defends the same, and the contestant
rebuts the testimony of the proponent. Doubtless the
proponent may sur rebut any new testimony adduced for the
first time in rebuttal (Maloney v. King, 30 Mont.
--, 76 P. 4), but the contestant has the right to open and
close the case (sections 2340-2346, Code Civ. Proc.;
Farleigh v. Kelley, 28 Mont. 421, 72 P. 756, 63 L.
R. A. 319). This disposes of one of appellant's principal
assignments of error.
The
following sections of the Code of Civil Procedure are
directly pertinent:
"Sec.
2370. Whenever any will is lost or destroyed the district
court must take proof of the execution and validity
thereof, and establish the same; notice to all persons
interested being first given, as prescribed in regard to
proofs of wills as in other cases. All the testimony given
must be reduced to writing and signed by the witnesses.
"Sec.
2371. No will shall be proved as a lost or destroyed will,
unless the same is proved to have been in existence at the
time of the death of the testator, or is shown to have been
fraudulently destroyed in the lifetime of the testator, nor
unless its provisions are clearly and distinctly proved by
at least two credible witnesses.
"Sec.
2372. When a lost will is established, the provisions
thereof must be distinctly stated and certified by the
judge, under his hand and the seal of the court, and the
certificate must be filed and recorded as other wills are
filed and recorded, and letters testamentary or of
administration, with the will annexed, must be issued
thereon in the same manner as upon wills produced and duly
proved. The testimony must be reduced to writing, signed,
certified and filed as in other cases, and shall have the
same effect as evidence as provided in section 2344."
At the trial the state and appellant jointly fought the
Woolbeater will, and in turn the state and Woolbeater
fought the Scheuer will. After the evidence had been closed
as to the Woolbeater will, the appellant undertook to make
out a prima facie case. It was incumbent upon him first to
show affirmatively either that the will he proposed was in
existence at the time of the death of Colbert, or that it
was fraudulently destroyed during Colbert's lifetime.
This he failed to do. He did prove prima facie some
pertinent facts; for instance, he adduced evidence tending
to prove that Colbert executed a will in the spring of
1896, wherein he and Lillian E. Burton were named as
beneficiaries; that its contents were made known to at
least three persons; that the will was seen about Christmas
time in 1896, in August, 1899, about three weeks before
Colbert's death, and on the day before his death. The
witness who said he saw the will the day before Colbert
died testified that he went to see Colbert upon important
business, and conversed with him about it. Without
proceeding further in detail, it is sufficient to say that
the testimony of this witness, if true, shows beyond any
question that at the time when the will was last seen it
was in Colbert's possession, and Colbert was then in
the exercise of his mental faculties. So far as the record
discloses, it was never seen again. The better opinion is
that under circumstances like the foregoing the presumption
is that the testator, having possession of the will, and
being mentally competent, himself destroyed the will animo
revocandi. This being the case, the burden of proof was on
the proponent appellant to overcome this presumption. See
note to Clark v. Turner, 38 L. R. A. 434, and
cases cited. And the proof required to overcome it must be
clear, satisfactory, and convincing. An instructive case
upon this subject is that of In re Kennedy's Will
(Surr.) 62 N.Y.S. 1011, in which the court said:
"The law of this state is well settled that, where no
testamentary papers have been found after a careful and
exhaustive search, the presumption is that the decedent
herself destroyed that will with the intention of revoking
it. Collyer v. Collyer, 110 N.Y. 481, 18 N.E. 110,
6 Am. St. Rep. 405; Knapp v. Knapp, 10 N.Y. 276;
Schultz v. Schultz, 35 N.Y. 653, 91 Am. Dec. 88;
Hard v. Ashley, 88 Hun, 103, 34 N.Y.S. 583; In
re Nichols, 40 Hun, 387; Betts v. Jackson, 6
Wend. 173. And even in England, where the courts are
not controlled, as here, by any positive statutory
provisions, the presumption is the same, as shown by the
following cases; Colvin v. Fraser, 2 Hagg. Ecc.
266; 3 Phillim. Ecc. 126, 462, 552; 1 Swab. & Tr. 32; 32
Law J. Prob. 202; 36 Law J. Prob. 7; 7 El. & Bl. 886. The
only cases where this presumption does not exist will be
found to be where the will is clearly shown not to have
been in the possession of the testator at the time of his
death. In re Brechtee's Estate, N.Y. Surr.
Dec. 1893, p. 709; Hamersley v. Lockman, 2 Dem.
Sur. 524; Schultz v. Schultz, 35 N.Y. 653, 91
Am. Dec. 88; In re Marsh, 45 Hum, 107. 'Legal
presumptions are founded upon the experience and
observation of distinguished jurists as to what is usually
found to be the fact resulting from any given
circumstances; and, the result being thus ascertained,
whenever such circumstances occur, they are prima facie
evidence of the fact presumed.' Betts v. Jackson, 6
Wend. 173. In the last-named case the court says that
it is a fact that for every will that is publicly destroyed
five wills are secretly destroyed by the testator. The law
will not speculate as to the motives which may have
operated upon the testator's mind, either in the
direction of intestacy or otherwise. The presumption that
the decedent destroyed the will animo revocandi is so
strong as to stand in the place of positive proof. The
principle that a state of things once shown to exist will
be presumed to continue, and that, therefore, the court
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