145 P. 957 | Mont. | 1915
delivered the opinion of the court.
Rachel E. Williams died on March 3, 1907, leaving an estate worth approximately '$100,000, and only- one near relative, a granddaughter, then aged seven years, the appellant in this court. An instrument in writing, purporting to be the last will and testament of Mrs. Williams, was offered by respondents for probate, by- the terms of which the sum of $500 is given to the appellant, $1,000 to Mary Sullivan, a domestic, and all the balance of the estate to Andrew J. Davis, of Butte. Mr. Davis and Mr. Lyman M. Harley are named as executors. This instrument is not holographic, but, with the exception of the signatures and
The right to have this instrument received and regarded as the last will and testament of Mrs. Williams is contested by the appellant on several grounds, the chief of which is that Mrs. Williams did not declare to the attesting witnesses that it was her will, and that they were not requested by her to attest it as such. Trial was to the court, Hon. J. B. Poindexter, judge presiding without a jury. Mr. Norbeck was not personally present or within the county, but his deposition, taken at the instance of appellant, was on file. So far as the question now involved is concerned, the respondents rested upon the attesting clause, the testimony of Mr. Estabrook, which was received without challenge, and the testimony of Mr. Harley, which was admitted over the vigorous contention of appellant that it was inadmissible because of his interest in the outcome and because both attesting witnesses were before the court. The deposition of Mr. Norbeck was then read into the record as part of appellant’s contest, and it was agreed, to save repetition, that all the testimony given should be considered in the record for all purposes. Findings of fact and conclusions of law were filed in favor of the will,, and a decree was entered admitting the same to probate. Notice of intention to move for a new trial was served and filed; and, Judge Poindexter having been disqualified, this motion was heard by Hon. R. Lee McCulloch as judge presiding. The motion was denied; the order expressly stating, however, that “the testimony of Lyman M. Harley has been disregarded.”
It is advisable at the outset to determine the nature and effect
We do not hold, however, that Harley’s testimony was improperly received, and do not assume that Judge McCulloch so held. The contentions of appellant are that Harley was disqualified for interest under section 4732, Revised Codes; and that his testimony was inadmissible, at least when received, under section 7400, Revised Codes. Neither position is sound. Section 4732 has no application, for the reason that Harley was not a subscribing witness, was not put forward as one, and was
We are required to conclude, then, that Harley’s testimony was disregarded by Judge McCulloch because he placed no credence in it; and the question is, not whether this estimate is correct, but whether, upon the cold record, it must be branded as a clear abuse of discretion. We do not think so. Without entering at large upon a discussion of this testimony, we express the view that many reasons of record combine to at least authorize, if they did not compel, the action of the reviewing judge. This being so, his order must be taken as it stands — an adjudication of the question of execution upon the evidence of the attesting witnesses alone.
The substance of Mr. Estabrook’s testimony is as follows: On January 21, 1907, he was asked by Mr. Harley to go that
Mr. Norbeck deposed: “On January 21, 1907, Mr. Harley asked me to go to Mrs. Williams’ room and witness a paper for her. I went in company with Mr. Harley and Mr. Estabrook. When we entered, she was sitting rather propped up in a large chair, with a small table at her side, on which were the papers. I went over to where she sat, and, to relieve the situation, remarked that she was looking very well, to which she replied, ‘I have suffered so much you would be surprised how thin I am.’ Mr. Estabrook and myself sat down at the table across from her on which were the papers. Mrs. Williams then asked Mr. Harley to go out and get us some wine, which he did. Mrs. Williams then wrote on one of the sheets of paper on the table and turned that sheet over, which exposed a second sheet, on which I signed. I did not see her signature, for the sheet she wrote on was turned back, covering the writing. I signed on the sheet which, as' I remember, was fastened to the sheet she signed by a pin or fastener or otherwise. There was nothing said by Mrs. Williams or anyone else about the nature of the contents of the paper, and I therefore did not ask any questions or attempt to investigate. I just signed my name in a perfunctory sort of way. I then passed the paper over to Estabrook, after which he- signed the same. There were no other persons
Taking this evidence at face value, the conclusion indicated is well established. Our statute (Civ. Code 1895, sec. 1723; Rev. Codes, sec. 4726) provides: “The testator must, at the time of subscribing or acknowledging the same, declare to the attesting witnesses that the instrument is his will.” Compliance with this is essential. (Noyes’ Estate, 40 Mont. 178, 105 Pac. 1013; In re Walker, 110 Cal. 387, 52 Am. St. Rep. 104, 30 L. R. A. 460, 42 Pac. 815; Estate of Seaman, 146 Cal. 455, 106 Am. St. Rep. 53, 2 Ann. Cas. 726, 80 Pac. 700; Gilbert v. Knox, 52 N. Y. 125; Brinckerhoof v. Remsen, 8 Paige (N. Y.), 487; Keefe’s Will, 155 App. Div. 575, 141 N. Y. Supp. 5; Bioren v. Nesler, 77 N. J. Eq. 560, 78 Atl. 201; Ludwig’s Estate (Tobin v. Haack), 79 Minn. 101, 81 N. W. 758; Richardson v. Orth, 40 Or. 252, 66 Pac. 925, 69 Pac. 455; Foley’s Will, 76 Mise. Rep. 168, 136 N. Y. Supp. 933; Reed v. Watson, 27 Ind. 443.) Such declaration, it is true, need not be in words. Where, for instance, the testator
The conclusion which would be commanded by the evidence of the attesting witnesses is challenged upon the grounds that one of them, Mr. Norbeck, has been successfully impeached, and
Mr. Harley’s testimony was in all respects singularly apt and complete. We need not pause to inquire under what circumstances the testimony of a person named as executor in an unnatural will ought to prevail over the evidence of both attesting witnesses, one of whom it was not even sought to impeach. Suffice it to say that since the attesting witnesses, whether they speak directly or through the attesting clause, are open to contradiction, it is possible to prefer other testimony to theirs, and cases can be imagined in which this ought to be done, especially where there is a complete attesting clause. Obviously, however, any testimony to prevail must be accepted. Mr. Harley’s testimony was not accepted but expressly disregarded; and the case, so far as this court is concerned, stands as though he had never spoken. His was the only evidence of record upon which the due execution of this will could possibly be asserted, and to deny a new trial, after its rejection, was wrong.
A number of alleged errors of minor character are assigned on the part of both sides. Respondents complain, for instance,
The principal assignments of appellant have been disposed of by what is said above. The only ones of consequence remaining are those which complain because the burden of proof was put upon her, and the one relating to the admission of a letter from Norbeck to Estabrook. There was no error in either instance.
The judgment and order appealed from are reversed, and the cause is remanded for retrial.
Reversed and remanded.