No. 12571 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1974 

In the Matter of the Estate 

of 

UNA M. NEWMAN, Deceased 

NELSON S . CARPENTER, AMELIA B . CARPENTER and MARCIA CARPENTER 

LULL, 

Objectors and Appellants, 

ELLEN TSCHACHE, HELEN MACQUARRIE and 

EMMA MONROE, 

Petitioners and Respondents. 

Appeal from: District Court of the Eighteenth Judicial District, 

Honorable W. W. Lessley, Judge presiding. 

Counsel of Record: 

For Appellants : 

Landoe and Gary, Bozeman, Montana 

H. B. Landoe argued, Bozeman, Montana 

Holter and Heath, Bozeman, Montana 

For Respondents : 

Berg, Angel, Andriolo and Morgan, Bozeman, Montana 

Ben E. Berg argued, Bozeman, Montana 

Submitted : January 15, 1974 
Mr. Chief Justice James T. Harrison delivered the Opinion of 

the Court. 

This is an appeal from an order admitting a lost will 

to probate in the district court of Gallatin County. 

This case arose when, after the death of Una M. Newman, 

a carbon copy of a purported Last Will and Testament of the 

deceased was found. 

Una M. Newman died on April 19, 1973, a resident of 

Gallatin County at the time of her death. Special letters of 

administration were granted, appointing Ellen Tschache and Helen 

MacQuarrie, two of the respondents herein, as special administratrixes on April 20, 1973. On April 23, 1973, George W. McKean, 

the public administrator of Gallatin County petitioned fox letters 

of administration, and to revoke the letters of special administration previously issued. 

The petition filed by George W. McKean to revoke the special letters of administration previously issued was initially 

heard on April 30, 1973. This hearing was continued. On April 

30, 1973, a petition seeking letters of administration with will 

annexed was filed by respondents herein, requesting admission to 

probate of the Last Will and Testament of Una M. Newman, deceased, 

and attaching a copy of same thereto. 

On May 15, 1973, opposition to the probate of this will 

was filed on behalf of Nelson S. Carpenter and ~melia B. Carpenter, 

the second cousins of the deceased and Marcia Carpenter Lull, 

another heir-at-law of the deceased, the appellants herein. On 

May 21, 1973, the petition for letters of administration with will 

annexed and the opposition to probate of will were heard. 

Thereafter, and on June 4, 1973, findings of fact and 

conclusions of law were issued by the district court of the eighteenth judicial district admitting the unsigned copy of the last 

will and testament of Una M. Newman, deceased, to probate, and 
on June 8, 1973, letters of administration with will annexed 

were issued to respondents. A motion to amend the findings 

was made on behalf of appellants on June 12, 1973. The motion 

was overruled, and this appeal was taken. 

The copy of the will admitted to probate was unexecuted 

and contained no subscribing witnesses. The week after the 

death of the deceased a search was made of her safety deposit 

box at the Security Bank of Bozeman, and no will was found as a 

result of that search. Ellen Tschache, a close personal friend 

of deceased, testified that she and Helen MacQuarrie, also a 

friend of deceased found the document marked "copy of will", 

which was admitted to probate, in a little tin box which was 

locked and located in the bedroom of deceased's home. Mrs. 

Tschache testified that deceased had told them to look into the 

box, that there was something in there. 

Helen MacQuarrie testified that she had known the deceased since approximately 1929, She stated that during the 

last month or six weeks and also that nine days prior to the 

death of the deceased she had discussions with deceased regarding her es@ke and that deceased had stated that her will was 

outdated, that the folks that were in it were all deceased, and 

that the administrators were deceased. 

Ott Tschache testified that he had been acquainted with 

deceased for approximately thirty years and that he and deceased 

would visit back and forth in each others homes. He testified 

that on many occasions in a fleeting manner deceased would state 

to him that she would like to or needed to change her will. His 

testimony also indicates that an attorney named Horkan, now deceased, may have prepared a will for deceased. 

A few hours before the death of deceased, attorney Robert 

Holter of Bozeman, went to the hospital at the request of a friend 
of the deceased for the express purpose of preparing a will for 

the deceased. During the course of the conversation with Holter, 

which lasted 20 to 30 minutes, Holter was unable to determine 

what deceased wished to do with her estate. He was unable to 

get enough information from his conversation with her to prepare 

a will. 

Attorney H.R Bolinger of Bozeman testified that he thought 

he might have drafted a will for deceased because of the things 

that he remembered about the will. He did not have a distinct 

recollection of a lot of the things that were in it. Bolinger 

testified that he had represented deceased in connection with 

her husband's estate in 1949. The copy of the will admitted to 

probate bears the year 1949. He also testified as to what his 

ordinary practice is for the execution of wills and that in the 

ordinary course of practice he, as well as his secretary, would 

have signed as witnesses. ~olinger, however, did not have a 

distinct recollection of either he or his secretary signing the 

will. 

Although Bolinger did testify that ordinarily he did not 

make copies of a will, he did state that if somebody specifically 

asked him for a copy that he would make one. 

A search of the desk in the living room of the deceased's 

house uncovered an envelope marked "Will" with the name of Bolinger 

& Bolinger on it. There was no will in this envelope. Also found 

in the desk was an envelope with the designation "Last Will and 

Testament" typed upon it. On that document, in deceased's handwriting, was the statement, "Horkan has signed one." A search 

of Horkan's files failed to produce the original of the will. 

Appellants' sole issue on appeal is whether the district 

court erred in admitting the document purporting to be the Last 

Will and Testament of Una M. Newman, deceased, to probate. 
The resolution of the issue presented is determined by 

reference to sections 91-1201 and 91-1202, R.C.M. 1947, which 

provide the requirements for proving a lost or destroyed will. 

Section 91-1201, R.C.M. 1947 states as follows: 

"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." 

Section 91-1202, R.C.M. 1947 provides: 

"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." 

The provisions of these statutes when taken together require that three criteria must be met in order to admit a lost 

or destroyed will to probate. These are: (1) proof as to the 

execution and validity of the will; (2) proof that the will was 

in existence at the time of the death of the testatrix; and (3) 

clear and distinct proof of the provisions of the will by at 

least two credible witnesses. While the district court concluded 

in its findings of fact that the will had been duly executed, we 

must hold that the district court erred in admitting the purported 

will to probate for the reason that the criteria of section 91- 

1202, R.C.M. 1947 were not met. 

The burden of proving the existence of a lost or destroyed 

will in Montana is clear. This Court in In re Colbert's Estate, 

31 Mont. 461, 471, 78 P. 971, stated: 

"Now, as we have heretofore seen, the statute 

is to the effect that the proponent of a lost 

will must prove either that the will was actually 

in existence at the time of the testator's death, 

or that it is in existence in contemplation of 

law. If it was fraudulently destroyed in his 
lifetime, it is still so in existence. If 

appellant cannot prove that the will was in 

existence, either actually or in contemplation 

of law, at the time Colbert died, it follows 

that his case cannot stand." 

Not only do the proponents of the proposed will have 

the burden of proof to establish its existence when it is a 

lost will, but also where no testamentary papers have been 

found after a careful and exhaustive search, as in this case, 

a presumption arises that the deceased destroyed the will 

animo revocandi (with intention to revoke). Furthermore, this 

being the case, the burden of proof is on the proponents, respondents herein, to overcome this presumption, and the proof 

required must be "clear, satisfactory and convincing". In re 

Colbert's Estate at 468. There is no suggestion of fraud in 

this case. 

The California court, in In re Flood's Estate, 47 C.A.2d 

809, 119 P.2d 168, 170, construing statutes identical to those 

in Montana held : 

"Appellant contends that the facts bring the case 

within the rule stated in 27 Cal.Jur., page 807, 

section 141: 'Where the evidence shows that the 

instrument cannot be found, and that when last 

seen or known to exist it was in the custody or 

possession of the decedent, the conclusion of law 

is that the writing was destroyed by the decedent, 

and that he acted with the intention of effecting a revocation thereof. Nothing else appearing, 

the admission of the writing to probate as a lost 

or destroyed will must be denied.'" 

Respondents contend that there is no evidence in this 

case indicating that the will was in deceased's possession at 

or near the time of her death, while appellants contend that 

there is no proof that the will was in anyone's possession at 

the time of death, other than possibly that of deceased. The 

Supreme Court of Oregon, in In re McCoy's Will, 49 Ore.579, 

90 P..: 1105, 1106, in considering the presumption as heretofore 

stated, has said: 
"It must, we think, be taken for granted, therefore, that the will when last seen was in the 

custody of the testator, and since it could not 

be found after his death a legal presumption is 

raised that it was destroyed by him with the 

intention of revoking it, and the burden of proof 

is on the proponent to overcome this presumption." 

In re Salter's Estate, 209 019. 536, 307 P.2d 515, 

522. 

In the instant case it must be taken for granted, that 

the will when last seen was in the custody of the deceased. 

This would be presumed from the fact that attorney Holter testified: "Her answer was of such that it lead me to believe she 

had a will," and deceased indicated that the document was kept 

at the Security Bank. In addition, the testimony of Mrs. MacQuarrie and Mr. and Mrs. Tschache to the effect that a will had 

once been prepared but, however, was now outdated, and another 

will was needed supports the conclusion that the will when last 

seen was in the custody of the deceased. 

Therefore, it must be presumed that the will, when last 

seen, was in the custody of the testator and that the deceased 

destroyed the will. As this Court has previously stated: 

" * * * The will is, according to law, of an 

ambulatory character. No one except the testator 

has any rights in it whatsoever. No other person 

can have any rights in it until the testator is 

dead. He may change it at pleasure, and human 

experience has shown that wills are almost always 

destroyed secretly." In re Colbert's Estate at 

471. 

The evidence in this case is not clear, satisfactory 

and convincing to overcome the rebuttable presumption that the 

deceased destroyed her will. To the contrary, the conclusion 

to be drawn from the testimony is that the deceased did have a 

will, and having expressed displeasure with the will, secretly 

destroyed it. Since there was no proof to overcome the presumption of destruction by the deceased, the district court 

erred in concluding: 
" * * * the original of said document was lost 

or destroyed unintentionally and not destroyed 

with the intent of revoking the same. * * *I1 

For the reason that the respondents did not meet their 

burden of proof that the will was actually in existence or in 

existence in contemplation of law at the time of deceased's 

death, and for the reason that the presumption of destruction 

is not overcome by the testimony adduced at the hearing, the 

district court erred in admitting the will to probate. 

Having concluded that the criteria as to proof of the 

existence of the will was not met, we need not at this time 

consider whether the provisions of the will were clearly and 

distinctly proved. 

For the foregoing reasons, the order of the district 

court admitting the copy of the will to probate is hereby 

reversed and the estate of the deceased is to be distributed 

by the laws of intestate 

J