### No. 12789 INTHE 

### SUPREME COURT OF THE 

### STATE OF MONTANA 

### 1974

IN

### THE MATTER OF THE ESTATE OF: 

### OSCAR W

# . CRADDOCK

## , Deceased.

Appeal from: District Court of the Second Judicial District, Honorable John B

# .McClernan, Judge presiding. Counsel of Record: For Appellant: 

### Edward D. 

### Yelsa argued, Anaconda, Montana For Respondent: 

### Burgess, Joyce, Prothero, Whelan and O'~eary,

Butte, Montana Robert T. 

### O'Leary argued, and Thomas Joyce appeared,

Butte, Montana

Submitted: November 22, 1974 Decided: 

## JAN~~?'J,cJ

-- 

### Filed: 

# \E~)Y 1

0 'g/$PER CURIAM: The proponent of the willof Oscar W. Craddock appeals the refusal of the districtcourt of Silver Bow County toadmit that willtoprobate; itsdenial of hismotion for a new trial; and itsdenial of his motion toamend the judgment. Consideration of the issues raised is hampered by the stateof the record inthe districtcourt. Accordingly, our discussion

### willprimarily involve the procedures followed inthe districtcourt. Oscar W. Craddock died on November 11, 1969, survived by

a brother and five 

### sisters. A purported holographic 

### willwas discovered among his papers inFebruary 1972. Hisbrother, Ralph H. Craddock, offered the

### will for probate inSeptember of that year, but objections were filed by Pearl Trevenna, decedent's 

### sister. Those objections alleged the holographic 

### willhad been mutilated and materially altered by someone other than Oscar W. Craddock. The Register of Actions contained inthe Silver Bow County districtcourt filecontains thisnotation: "Apr. 26, 1974 In thismatter the alleged Will isdenied admission toprobate; the 

### willcontest isordered dismissed, and General Letters of Administration areordered issued toRalph H. Craddock upon, his taking oath and filingbond inthe sum of $10,000.00 and an order be entered accordingly." Following that action by the districtcourt, proponent moved for a new 

### trial or for amendment of thejudgment. He alleged there was insufficient evidence to sustain thejudgment; that he had been deprived of formal trial on the issues; and, the districtcourt had failed toenter written findings of fact and conclusions of law. The motion was denied. Three issues areraised on proponent's appeal from the judgment and denial of his motion. They are: (1)Did the district court err indenying the petitionfor admission of the willto probate? (2) Did the district court err in failing toenter written findings of fact and conclusions of law? (3) Did the district court err in its rulings on proponent's requests for admissions? Given the state of the record before us, we are unable todetermine either of proponent's firsttwo issues. While the law clearly establishes the procedures tobe followed in the probate of a 

### will, the record fails todisclose whether or not there was compliance with those requirements. In interpreting Montana's probate laws, the Court has held the proponent of a willmust make a prima facie showing that the proposed 

### willwas executed in conformity with statutory requirements. In re Silver's Estate, 98 Mont. 141, 38 P.2d 277; In re Bragg's Estate, 106Mont. 132, 76 P.2d 57. Here, the requirement that the holographic 

### willbe entirely inthe testator's handwriting is the determinative factual issue. Section 91-108, R.C.M. 1947.. Montana's procedural rules concerning probate of a will have, prior to the enactment of the Uniform Probate Code which has not yet gone into effect, remained substantially unchanged since the nineteenth century. Section 91-901, R.C.M. 1947, provides that issues of fact affecting the validity of the willare to be tried, either before the court or a jury. This provision applies only tocontested probates, but even uncontested 

### wills require the taking of testimony and proof of the will. Section 91-809, R.C.M. 1947. Our procedure was succinctly set forth in In re Silver's Estate, 98 Mont. 141, 151, 38 P.2d 277, where it is stated: "Thus, on a contest before probate, the proponent of the 

### willmust first show that the willwould be entitled toprobate except for the contest, whereupon the parties proceedwith the trial

## * 

## * *." (Emphasis supplied) Our concern here 

### iswhether the proponent had opportuni t y t opresent evidence establishing his prima facie case of validity. An affidavit filed by proponent's counsel, and included in the district court file, asserts: "That proponent was ready and is now ready to prove that the proposed 

### willis entirely in the handwriting of the decedent. That the affiant has not presented the case of the proponent in court asof the date of this affidavit. That the ruling of the 

### trial court as [sic] precluded the presentation of the case of proponent on itsmerits 

## * 

## * *." This affidavit was filed a week after the district court denied admission of the 

### willtoprobate and dismissed the contest. Our determination 

### is complicated by the assertions of counsel intheir appellate briefs. Proponent's counsel, consistent with his affidavit, claims that no hearing was had on April 26, 1974. Contestant's counsel flatly states that "hearing

was held by the Court on April 26, 1974". The districtcourt filecontains no indication one way or the other. Generally, this Court 

### willindulge allreasonable presumptions in favor of the regularity of the proceedings below. Feely v. Lacey, 133Mont. 283, 322 P.2d 1104; Kunesh v. City of Great Falls, 132 Mont. 285, 317 P.2d 297. Our inquiry then becomes whether it 

### isreasonable topresume, on this record, that the evidentiary hearing required by law took place. A hearing did take place before Judge Freebourn in 1972, but he was disqualified in the following year. No transcript of the hearing was prepared, sono testimonial evidence introduced there was available to the substituted judge, Judge McClernan. Furthermore, since Judge Freebourn made no ruling on the merits, proponent was entitled toa hearing before Judge McClernan. The record here contains no minute entry indicating that such a hearing took place. It contains no notice or setting ofd hearing for April 26, 1974. It contains only the affidavit of proponent's counsel, swearing that "a hearing was not held

on the

### merits of the case". The importance of thishearing toprobate procedure in Ylontana prevents us from indulging the presumption of the correctness of the proceedings below when the record bears no substantial evidence of the hearing. However, our holding here is limited tothe facts of thiscase. This is not a case where proponent has indicated that he has no evidence other than the willitself. Nor is it one where theproponent has indicated no desire for a hearing. Three months prior tothe appealed order, proponent filed a notice that he was prepared for trial. Accordingly, we remand this case tothe district court for a hearing atwhich proponent is tomake hisprima facie showing of theproper execution of the 

### will. By so holding, we make no disposition astothe

### merits of the issue. The alterations appearing on the face of this holographic will, if unexplained, could invalidate the will. The determination rests with the districtcourt upon proper hearing. The stateof the record alsoprevents our ruling on the issue of whether or not findings of fact and conclusions of law should have been entered. Findings of fact and conclusions of law need not be entered under allcircumstances. The exceptions

areexpressed within the rule itself and willnot be considered here, since

### we are unable todetermine how the court's ruling

was reached. Finally, we consider proponent's contention that the district court erred inrefusing to strikecontestant's answer to a request for admission or, inthe alternative, todeem it admitted. Proponent requested that contestant admit ordeny that contestant knew of no witnesses who would testify that oneother than the testator rnade the alterations inthe will. Contestant responded by asserting that proponent had the burden of proving the

### willwas entirely in the testator's handwriting. Requests for admissions aregoverned by Rule 36, 

### M.R. Civ.P. They willbe deemed admitted unless denied, objected to, or arenot subject toadmission or denial. As set forth in the rule, grounds for objection areprivilege, irrelevancy,

or impropriety. The court's order indicaes that while proponent's motion might have been 

### well founded, the request for admission would be answered atpretrial conference scheduled shortly thereafter, and the present motion was denied. The matter

was then lost during the attenuated maneuvering of proponent, including his disqualification of the firstjudge only days after the pretrial conference and before a pretrial order could be issued. Although there was also a pretrial conference before Judge McClernan, proponent did not propose inclusion of thismatter in .hisproposed pretrial order. Under the circumstances here, we arenot prepared to find

error inthe district court's denial of the motion. The case is accordingly remanded for further proceedings not inconsistent with this opinion.