In re Noyes' Estate

• Decision Date: 18 December 1909
• Citation: 105 P. 1013,40 Mont. 178
• Parties: In re NOYES' ESTATE. v. GERARD. NOYES
• Court: Montana Supreme Court

105 P. 1013

40 Mont. 178

In re NOYES' ESTATE.

NOYES v. GERARD.

Supreme Court of Montana

December 18, 1909

Appeal from District Court, Yellowstone County; Sydney Fox, Judge.

In the matter of the estate of Horace A. Noyes, deceased. J. S Noyes, as plaintiff, appeared and contested a writing offered by Sarah Gerard, defendant, for probate as decedent's last will. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

W. M Johnston, for appellant.

Chas A. Taylor and Harry L. Wilson, for respondent.

BRANTLY C.J.

Horace A. Noyes died on or about January 16, 1909, at Laurel, in Yellowstone county, leaving an estate therein consisting of real and personal property. On January 25, 1909, Sarah Gerard, the defendant, filed a petition in the district court of Yellowstone county, asking that a writing attached thereto, and purporting to be the last will and testament of Horace A. Noyes, be admitted to probate. By the terms of the writing the defendant is given the whole of the estate of the deceased, subject to the claim of creditors and to the payment of $10 to each of several legatees mentioned by name, being a niece, three sisters and a brother. One Edward L. Fenton was named as executor, and the defendant prayed that letters testamentary be issued to him. J. S. Noyes, the plaintiff, brother of the deceased, appeared and contested the probate of the writing as a will, alleging as grounds therefor, among other things, that the subscription of his name to the instrument by the testator was not made in the presence of the attesting witnesses; that it was not acknowledged by the testator to the witnesses, or either of them, as made by his authority; that the testator did not at the time of subscribing his name, or at any time or at all, declare to the attesting witnesses, or either of them, that the instrument was his will; and that neither of said witnesses signed his name as a witness to the instrument at the request of testator. The defendant filed her answer, denying specifically all of these allegations. The issues thus made were tried by the court sitting without a jury, and resolved in favor of the plaintiff. Judgment was entered accordingly. The defendant has appealed from the judgment and an order denying her a new trial. The questions submitted for decision arise upon defendant's assignment that the evidence is insufficient to sustain the findings, and may be stated as follows: (1) Did the deceased at the time of signing the instrument in question publish it as his last will and testament, as required by the laws of Montana? (2) Did the witnesses, when they signed as such, do so at the request of the deceased?

The instrument bears the signature of the deceased, attested by two witnesses, but without an attestation clause. It was written by Fenton on May 4, 1907, at the request of Noyes, who was confined to his bed by the disease which resulted in his death. The only evidence heard was that of Fenton and the two subscribing witnesses. What occurred at the time is stated by them substantially as follows:

Fenton stated: He was postmaster at Laurel, the village where Noyes resided. He was sent for by Noyes, who was then confined to his bed in a room at the rear of his saloon. When he arrived, he found Conant, one of the subscribing witnesses, with Noyes. Noyes was then perfectly rational, and understood what was going on about him. After some conversation between Fenton and Noyes, the latter told Fenton that he had an old will in his trunk, which he directed Fenton to get, because he desired to have it changed in some particulars, and for this purpose desired a new one drawn. This paper purported to be a holographic will. Fenton then went to the post office, and, after having procured writing materials, wrote the will as directed by Noyes. During the time the directions were being given different persons came in and went out of the room, but who they were or whether any one was present he did not remember. After he finished the writing, he read it to Noyes. He could not say who was then present. After the reading was finished, but before Noyes signed, he called Klamer, one of the subscribing witnesses, from the saloon, and told him he desired him to sign the will as a witness. This information was given the witness as he entered the room from the saloon. Conant was then present. Noyes signed after Klamer came in, having raised himself in bed for that purpose. It was then attested by Conant and Klamer. The room was in size about 12 by 14 feet, and Noyes could hear all that was said. After the signatures were attached, both of the papers were intrusted to Fenton, who thereafter kept them until Noyes' death. Conant signed first, and Klamer immediately afterwards. On cross-examination the witness stated: He did not think both witnesses were in the room when he read the will. Noyes did not speak to either of them during this time, nor personally request either to sign. The request was made by Fenton. He told Noyes that two witnesses were required, and then requested Conant and Klamer to sign.

Klamer stated: He remembered signing what he was informed by Fenton was Noyes' will in the back room of the saloon. He identified the paper in controversy as the one witnessed by him in the presence of Noyes, but knew nothing of its contents. He saw Noyes sign it. Conant then signed it; the witness signing immediately afterwards. Noyes seemed to be perfectly rational, and was not laboring under any restraint or undue influence of any kind. Witness was called into the room by Fenton from the rear of the saloon where he was then sitting. Fenton beckoned him into the room where Noyes was, and, as he entered, asked him in Noyes' presence if he would witness the will. The door leading into the room from the saloon was open. Conant was then present. Witness supposed Noyes could hear all that was said, since he could hear well, and was wide awake and in full control of his faculties. Though the witness talked with Noyes immediately afterwards, nothing was said by either of them about the fact that Noyes had just made a will or as to the contents of it. Nothing was said about the will whatever while he was in the room, other than what Fenton said when he requested the witness to attest it. He knew that he was witnessing a will only by what Fenton said to him. Questioned further, the witness stated he could not say definitely whether, when Fenton informed him that it was desired that he should act as a withess, he was in the saloon or in the room where Noyes was; nor could he say whether Noyes heard what was said by Fenton. Nothing was said about the will while he was engaged in witnessing it.

Conant stated: He knew Noyes. He attached his signature to the paper purporting to be the will in controversy. He did so at the request of Fenton. Fenton, Klamer, and he were present. Noyes said nothing about the character of the paper. Witness did not hear Fenton ask Klamer to sign as a witness. He himself signed first, followed by Klamer. The paper was at the time of signing so folded that he could not see the signature of Noyes. He learned nothing of the nature of the paper until after the death of Noyes. Fenton merely asked him to sign the paper as a witness, without stating to him the nature of it. He did not know its nature. He could not say whether he saw Noyes sign or not, and, when he first saw the paper, it was in Fenton's possession. He could not say that he saw it in Noyes' possession at all. He was in and out of the room during the time Fenton was present, engaged in preparing Noyes for removal to a hospital at Billings. He did not remember seeing Fenton help Noyes to a sitting posture to sign the paper, and did not remember having heard Fenton ask Klamer to witness Noyes' will. Though present when Fenton first came into the room, he did not hear Noyes request Fenton to draw his will. He did not see Fenton get the old will from the trunk. Beyond a surmise, based upon the fact that Noyes was sick, that the paper witnessed was probably a will, he did not, in fact, know what it was. He had called on Noyes that morning, and, at his request, had remained to wash and prepare him for removal to the hospital. Fenton and Klamer entered the room together; Fenton then having the papers, and remarking: "June [referring to Noyes] has got some papers here, and I wish you to sign as witness." This was said in Klamer's presence. He could not say whether this was after Noyes signed or not. He could not at the time he signed see Noyes' signature on the paper, because of the way in which it was folded. Several questions were put to him on cross-examination, with the apparent purpose of laying a foundation for impeachment; but no other evidence was offered on behalf of either party.

Section 4726, Rev. Codes, so far as pertinent here, provides "Every will, other than a nuncupative will, must be in writing; and every will, other than a holographic will, and a nuncupative will, must be...