No. 12789 

IN THE 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 will of Oscar W. Craddock appeals the 

refusal of the district court of Silver Bow County to admit 

that will to probate; its denial of his motion for a new trial; 

and its denial of his motion to amend the judgment. Consideration of the issues raised is hampered by the state of the record 

in the district court. Accordingly, our discussion will primarily involve the procedures followed in the district court. 

Oscar W. Craddock died on November 11, 1969, survived by 

a brother and five sisters. A purported holographic will was 

discovered among his papers in February 1972. His brother, Ralph 

H. Craddock, offered the will for probate in September of that 

year, but objections were filed by Pearl Trevenna, decedent's 

sister. Those objections alleged the holographic will had been 

mutilated and materially altered by someone other than Oscar 

W. Craddock. 

The Register of Actions contained in the Silver Bow County 

district court file contains this notation: 

"Apr. 26, 1974 In this matter the alleged Will 

is denied admission to probate; the will contest 

is ordered dismissed, and General Letters of Administration are ordered issued to Ralph H. 

Craddock upon, his taking oath and filing bond 

in the sum of $10,000.00 and an order be entered 

accordingly." 

Following that action by the district court, proponent 

moved for a new trial or for amendment of the judgment. He 

alleged there was insufficient evidence to sustain the judgment; that he had been deprived of formal trial on the issues; 

and, the district court had failed to enter written findings of 

fact and conclusions of law. The motion was denied. 

Three issues are raised on proponent's appeal from the 

judgment and denial of his motion. They are: 

(1) Did the district court err in denying the petition 
for admission of the will to probate? 

(2) Did the district court err in failing to enter 

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 

to determine either of proponent's first two issues. While the 

law clearly establishes the procedures to be followed in the 

probate of a will, the record fails to disclose whether or not 

there was compliance with those requirements. 

In interpreting Montana's probate laws, the Court has held 

the proponent of a will must make a prima facie showing that the 

proposed will was executed in conformity with statutory requirements. In re Silver's Estate, 98 Mont. 141, 38 P.2d 277; In re 

Bragg's Estate, 106 Mont. 132, 76 P.2d 57. Here, the requirement that the holographic will be entirely in the 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 will are to 

be tried, either before the court or a jury. This provision 

applies only to contested 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 will must first show that the 

will would be entitled to probate except for 

the contest, whereupon the parties proceed 
with the trial * * *." (Emphasis supplied) 

Our concern here is whether the proponent had opportuni t y t o present 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 will is entirely in 

the handwriting of the decedent. That the 

affiant has not presented the case of the proponent in court as of the date of this affidavit. That the ruling of the trial court as 

[sic] precluded the presentation of the case of 

proponent on its merits * * *." 

This affidavit was filed a week after the district court denied 

admission of the will to probate and dismissed the contest. 

Our determination is complicated by the assertions of 

counsel in their 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 district court 

file contains no indication one way or the other. 

Generally, this Court will indulge all reasonable presumptions in favor of the regularity of the proceedings below. 

Feely v. Lacey, 133 Mont. 283, 322 P.2d 1104; Kunesh v. City of 

Great Falls, 132 Mont. 285, 317 P.2d 297. Our inquiry then becomes whether it is reasonable to presume, 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, so no 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 to a hearing before Judge McClernan. 

The record here contains no minute entry indicating that 

such a hearing took place. It contains no notice or setting of 
d 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 this hearing to probate 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 to the facts of this case. This is not a case where 

proponent has indicated that he has no evidence other than the 

will itself. Nor is it one where the proponent has indicated no 

desire for a hearing. Three months prior to the appealed order, 

proponent filed a notice that he was prepared for trial. 

Accordingly, we remand this case to the district court 

for a hearing at which proponent is to make his prima facie 

showing of the proper execution of the will. By so holding, we 

make no disposition as to the 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 district court upon proper hearing. 

The state of the record also prevents 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 all circumstances. The exceptions 

are expressed within the rule itself and will not be considered 

here, since we are unable to determine how the court's ruling 

was reached. 

Finally, we consider proponent's contention that the 

district court erred in refusing to strike contestant's answer 

to a request for admission or, in the alternative, to deem it 

admitted. Proponent requested that contestant admit or deny 

that contestant knew of no witnesses who would testify that one 
other than the testator rnade the alterations in the will. 

Contestant responded by asserting that proponent had the 

burden of proving the will was entirely in the testator's 

handwriting. 

Requests for admissions are governed by Rule 36, M.R. 

Civ.P. They will be deemed admitted unless denied, objected 

to, or are not subject to admission or denial. As set forth 

in the rule, grounds for objection are privilege, 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 at pretrial 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 first judge 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 this matter in .his proposed pretrial order. 

Under the circumstances here, we are not prepared to find 

error in the district court's denial of the motion. The case 

is accordingly remanded for further proceedings not inconsistent 

with this opinion.