In re Miller's Estate
| Decision Date | 11 October 1924 |
| Docket Number | 5476. |
| Citation | 229 P. 851,71 Mont. 330 |
| Parties | In re MILLER'S ESTATE. v. HOUSTON. WELCHER |
| Court | Montana Supreme Court |
Appeal from District Court, Madison County; B. B. Law, Judge.
In the matter of the estate of Elizabeth Louise Miller, deceased. Deceased's will was offered for probate by Bertha Josephine Houston, and contested by Andreas Welcher and others. Judgment for contestants, and contestee appeals. Reversed and remanded for new trial.
M. M Duncan, of Virginia City, for appellant.
A. E Farley, of Great Falls, for respondents.
Elizabeth Louise Miller was murdered on or about the 3d day of July 1921. She left surviving her a mother, three sisters, and two brothers. On August 16, 1922, there was filed in the district court an instrument dated January 29, 1921, purporting to be the last will, holographic in form, of Elizabeth Louise Miller. On August 24, 1922, a petition was filed in which the instrument was offered for probate by the contestee, Bertha Josephine Houston, a sister of deceased. Prior to the hearing on the petition the right to receive the purported will was contested by A. E. Farley, Esq., as attorney for two of deceased's sisters and her two brothers (the mother having died in the meantime), upon the ground that the instrument was a forgery. The cause was tried to the court sitting with a jury, and resulted in a verdict in favor of the contestants, and a finding that the will was not entirely written, dated, and signed by Elizabeth Louise Miller. Before judgment was rendered, an affidavit on behalf of contestant was filed, disqualifying Joseph C. Smith, one of the judges of the district court before whom the cause was tried, who, notwithstanding the affidavit, rendered judgment rejecting the purported will and refusing to admit it to probate. Thereafter a motion was made for a new trial, which was denied. It is from the judgment that this appeal is prosecuted.
As ground for reversal, contestee insists that the district judge, having been disqualified after the verdict, was without authority to render judgment. It becomes necessary, then, to determine whether section 8868, Revised Codes, 1921, which provides, "Such affidavit * * * shall be filed with the clerk of the district court * * * at any time before the day appointed or fixed for the hearing or trial of any such action, motion, or proceeding," permits the filing of a disqualifying affidavit after verdict but before judgment. This court decided in State ex rel. Carleton v. District Court, 33 Mont. 138, 82 P. 789, 8 Ann. Cas. 752, that an affidavit imputing bias and prejudice may be filed after a trial has been had, and while a motion for a new trial is pending, at any time before the date set for the hearing of such motion. In so far as that decision permits a change of judge, when application is made under section 8868 prior to the date set for a hearing upon a motion for new trial upon the ground that it is pro hac vice, a proceeding independent of the trial of the cause on the merits, we have no particular fault to find with it. The rule there announced may not, however, be extended to permit the filing of a disqualifying affidavit after verdict and prior to the entry of judgment. The rendition of judgment is too much a part of the trial of the action on the merits to be characterized as a separate, independent proceeding in the sense that the term is used in the foregoing section. The trial court committed no error in disregarding the affidavit and rendering judgment.
The contestee urges the insufficiency of contestants' complaint upon the grounds, first, that it fails to show the contestants have such an interest in the estate of Elizabeth Louise Miller as to entitle them to contest the probate of the will; and, second, that it fails to allege authority on the part of A. E. Farley, an attorney at law, to represent contestants. Without determining whether the complaint, standing alone, sufficiently alleges that the contestants are persons who, but for the will, would succeed in some degree to decedent's estate, it is clear that the admission in the answer of the contestee "that these contestants are brothers and sisters of said decedent, and owing to the death of the mother are entitled to share equally in the distribution of the estate of the deceased, if the deceased died intestate," remedies any possible infirmity of the character suggested. It is the rule at common law, and it has long been settled in this jurisdiction, that where necessary allegations are omitted from the complaint, but supplied by defendant's answer, the defect is cured. 1 Chitty on Pleading, 703; Hershfield & Bro. v. Aiken, 3 Mont. 442; Murphy v. Phelps, 12 Mont. 531, 31 P. 64; Hamilton v. Great Falls St. Ry. Co., 17 Mont. 334, 42 P. 860, 43 P. 713; Lynch v. Bechtel, 19 Mont. 548, 48 P. 1112; Crowder v. McDonnell, 21 Mont. 367, 54 P. 43; Hefferlin v. Karlman, 29 Mont. 139, 74 P. 201; Grogan v. Valley Trading co., 30 Mont. 229, 76 P. 211; Christiansen v. Aldrich, 30 Mont. 446, 76 P. 1007; Mantle v. White, 47 Mont. 234, 132 P. 22; Stephens v. Conley, 48 Mont. 371, 138 P. 189, Ann. Cas. 1915D, 958; Buhler v. Loftus, 53 Mont. 546, 165 P. 601; Kummrow v. Bank of Fergus County, 57 Mont. 391, 188 P. 649; Hurley v. Great Falls Baseball Ass'n, 59 Mont. 27, 195 P. 559; Sevanin v. Chicago, M. & St. P. Ry. Co., 62 Mont. 546, 205 P. 825; Anderson v. Wirkman, 67 Mont. 176, 215 P. 224; 1 Sutherland on Code Pleading, Practice and Forms, § 361; Bliss on Code Pleading (3d Ed.) § 437; Pomeroy on Code Remedies, 579; 31 Cyc. 714.
The contention that the complaint must allege that Mr. Farley was the attorney for the contestants is without merit. Heirs at law may contest a will through attorneys appointed by them. Section 10029, Rev. Codes 1921. And it is presumed without allegation or proof that an attorney at law who represents a client does so with his consent and by virtue of his retainer. Pullen v. City of Butte, 45 Mont. 46, 121 P. 878; Davenport v. Davenport, 69 Mont. ----, 222 P. 422; Strand Improvement Co. v. City of Long Beach, 173 Cal. 765, 161 P. 975; Drew v. Burley (D. C.) 287 F. 916; Gila Valley El. Gas & Water Co. v. Arizona Trust & Sav. Bank (Ariz.) 215 P. 159; Jordan v. Evans, 99 Neb. 666, 157 N.W. 620; Miller v. Continental Assur. Co., 233 Mo. 91, 134 S.W. 1003, Ann. Cas. 1912C, 102; Keithley v. County of Clark, 206 Ill.App. 500. "The universal rule is that, where an attorney appears and undertakes to act for another in a capacity and for a purpose within the scope of the ordinary powers of a duly licensed practitioner, his authority so to act will be presumed." 1 Thornton on Attorneys, § 230.
If the contestee desired to question the right of Mr. Farley to represent contestants, she should have applied to the trial court at the earliest opportunity for an order requiring him to produce and prove the authority under which he appeared, in accordance with the provisions of section 8994 of the Revised Codes of 1921. His authority to represent the contestants not having been challenged in the district court, the right to attack it later was waived. Missoula Belt Ry. Co. v. Smith, 58 Mont. 432, 442, 193 P. 529; 6 C.J. 631; Smith v. Smith, 145 Cal. 615, 79 P. 275; Brown v. Arnold, 131 F. 723, 67 C. C. A. 125.
Error is predicated upon the ruling of the trial court in permitting M. F. McDonald, a witness for contestants, to testify, over objection, with reference to the signature of the purported will, as follows:
Contestee also assigns as error the court's ruling in permitting other witnesses, over objection, to give their opinions as to the genuineness of the handwriting of the purported will, based upon a comparison with other writings in evidence admitted to be genuine. These assignments of error involve the same legal principles and will be treated together.
Section 10592, Revised Codes of 1921, provides as follows:
"Evidence respecting the handwriting may also be given by comparison, made by the witness or jury, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge."
This section was adopted from the California statutes after the Supreme Court of that state had construed the term "witness" to mean expert witness. Goldstein v Black, 50 Cal. 462; Spottiswood v. Weir, 80 Cal. 448, 22 P. 289. It is to be presumed, under the rule consistently adhered to by this court, that we adopted the construction thus placed upon it as a part of the law itself. Territory v. Stears, 2 Mont. 324; Lindley v. Davis, 6 Mont. 453, 13 P. 118; First National Bank of Butte v. Bell, etc., Min. Co., 8 Mont. 32, 19 P. 403; Price v. Lush, 10 Mont. 61, 24 P. 749, 9 L. R. A. 467; Stackpole v. Hallahan, 16 Mont. 40, 40 P. 80, 28 L. R. A. 502; Murray v. Heinze, 17 Mont. 353, 42 P. 1057, 43 P. 714; Largey v. Chapman, 18 Mont. 563, 46 P. 808; Stadler v. First National Bank, 22 Mont. 190, 56 P. 111, 74 Am. St. Rep. 582; Butte & Boston Con. Min. Co. v. Montana Ore Pur. Co., 25 Mont. 41, 63 P. 825; Winslow v. Dundom, 46 Mont. 71, 125 P. 136; Miller v. Miller, 47 Mont. 150, 131 P. 23; Moreland v. Monarch Min. Co., 55 Mont. 419, 178 P. 175; State ex rel. Rankin v. State Board of Examiners, 59 Mont. 557, 197 P. 988; Mares v. Mares, 60 Mont. 36, 199 P. 267; State ex rel. Murray v. Walker, 64 Mont. 226, 210 P. 90; Winnett Pacific Oil Co. v. Wilson, 71 Mont. ---, 229 P. 850. A nonexpert witness may give an opinion as to the handwriting of a person whom he...
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