11 Mont. 99 | Mont. | 1891
The appellants filed, January 10, 1891, in the District Court of Yellowstone County, their petition for the probate of the last will and testament of Charles E. Barney, deceased, and alleged that said Barney died October 3, 1890, in the State of Vermont; that he left real and personal estate in said county of Yellowstone of the value of twenty thousand dollars; that he left a will dated June 15, 1889, which was filed October 11, 1890, in the court below, and presented for probate; that the court by an order made December'!, 1890, refused to probate the same, and the petitioners appealed to this court; that they were informed in January, 1891, that the said Barney had executed a codicil to said will in August, 1890, and thereupon dismissed their appeal without prejudice; and that said will and codicil are the last will and testament of said Barney. The petition complies with the statute, and a full recital of the facts is not necessary at this time.
The appellants were appointed the executors of said will. The deceased person was not married in June, 1889, and had one child, the said Ida L. Barney. ■ Afterwards, in the month of August, 1890, the testator intermarried with Ellen C. Brodie in the State of Vermont, and she is the surviving wife. The codicil above mentioned consists of the following letter, which was written in the State of Vermont in the year 1890, although it purports to be dated in the year 1880: —
“Keller’s Bay, Aug. 18, 1880.
“ Hon. JE. N. Harwood, Helena, Mont.: —
“ I have not strength to write much, so I will pitch right into my subject, which is somewhat important. I was married nearly two weeks ago.....So much explanatory; will enlighten you further on the subject, if you wish, when I see you. Now, what I want is for you to change my will so that she will be entitled to all that belongs to her as my wife. I am in very poor health, and would like this attended to as soon as convenient. I don’t know what the laws are in Montana. I suppose Babcock and Rowley will have to witness the change or codicil. I don’t know what ought to be done, but you do. .... Let me hear from you soon on this subject, as soon as you can make it convenient. With best wishes, I am truly yours, Charles E. Barney.”
Said Ida L. Barney filed, February 10, 1891, her written
A preliminary question has been suggested by the respondent, who contends that the first decree of the court refusing to admit to probate said will is binding upon all parties until it has been reversed, and that this issue cannot be again litigated. There is no controversy about the correctness of this legal proposition. (Castro v. Richardson, 18 Cal. 478; State v. McGlynn, 20 Cal. 233; 81 Am. Dec. 118; Redmond v. Collins, 4 Dev. 430; 27 Am. Dec. 208; Schultz v. Schultz, 10 Gratt. 358; 60 Am. Dec. 335.) “The execution of a codicil referring to a previous will has the effect to republish the will, as modified by the codicil.” (Prob. Prac. Act, § 448.) Chief Justice Field in Payne v. Payne, 18 Cal. 302, said: “The codicil refers to the will, and operates as its republication, and the two are to be regarded as forming but one instrument, speaking from the date of the codicil.” To the same effect is the statute. “Several testamentary instruments, executed by the same testator, are to be taken and construed together as one instrument.” (Prob. Prac. Act, § 477.) It is evident that the contest, which involved solely the probate of said will in the former proceedings, could not be an adjudication of the matters which are before us.
It will be seen from the foregoing statement that the answer
The respondent claims in this court that these instruments, when examined and construed, are not of a testamentary character ; that the issues which have been commented on are irrelevant and immaterial, and therefore there was no error in denying the probate of said will and codicil. It is obvious that the statute, supra, and authorities, preclude such a view of the subject. Why did the contestant deliberately file objections embracing matters of this serious nature, if she had in them no confidence? She assumed voluntarily the statutory burden of proving her allegations, which had been made under the sanctity of an oath. In Estate of Cobb, 49 Cal. 604, Chief Justice Wallace said: “ The instrument offered being evidently of a testamentary character, upon application to admit it to probate the inquiry is only as to the mental condition of the testatrix; whether she was acting under duress, menace, fraud, or undue influence; whether the will was duly executed; and the like. The other questions attempted to be raised by the objections filed in the case concern the construction to be placed upon the will, and cannot be considered until it shall have been admitted to probate.” The court in Estate of Sanderson, 74 Cal. 208, said: “In cases of contests of a will, the issues must be such as that the determination of them will leave to the court no office except to enter a judgment admitting the will to probate or rejecting it.” The court below overlooked these plain requirements of the statute, supra, and deprived the appellants of their right to a trial by the mode which has been pointed out. It would be improper for us to express an opinion upon the interpretation of said will and codicil until the issues of fact have been tried and determined according to law.
It is ordered and adjudged that the judgment be reversed, and that the cause be remanded, with instructions to the court to proceed in accordance herewith.
Reversed.