No. 13391 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

IN THE MATTER OF THE ESTATE 

OF WALLACE J. HARTMAN, SR., 

Deceased. 

Appeal from: District Court of the First Judicial District, 

Honorable Gordon R. Bennett, Judge presiding. 

Counsel of Record: 

For Appellant: 

Graybill, Ostrem, Warner and Crotty, Great Falls, 

Montana 

George R. Crotty, Jr. argued, Great Falls, Montana 

For Respondent : 

Rapkoch and Knopp, Lewistown, Montana 

Peter L. Rapkoch argued, Lewistown, Montana 

Submitted: January 21, 1977 

Decided: WPR 2 8 19fl 

Filed: Fg>a21! 1977 
Mr. Chief Justice Paul G. Hatfield delivered the Opinion of the 

Court. 

This is an appeal from an order of the district court, 

Lewis and Clark County, admitting to probate a carbon copy of 

the will of Wallace J. Hartman, Sr., hereinafter referred to 

as decedent. 

Decedent was a resident of Lewis and Clark County at 

the time of his death on January 29, 1976. He was survived by 

three children: Wallace J. Hartman, Jr., Shirley Hartman, 

respondent here, and Delores Puckett, appellant here. It is 

undisputed that decedent had properly executed a will on March 

22, 1974, in the office of Charles M. Joslyn, an attorney in 

Choteau, Montana. The original will was given to decedent and 

a carbon copy retained by the attorney. This will provided that 

Delores Puckett receive $10.00, Wallace J. Hartman, Jr. receive 

$1,000 and some personal property, and Shirley Hartman receive 

the remainder of the estate. Evidence presented indicated the 

estate exceeds $1,000,000. 

On the date of decedent's death, Wallace J. Hartman, 

Jr., his wife, Janny, Shirley Hartman, and her fiance searched 

decedent's automobile and residence in Lincoln, Montana. Decedent's 

personal property and papers were taken to the house of Wallace 

J. Hartman, Jr. in Great Falls, Montana. A subsequent examination of these papers did not reveal a will. Wallace J. Hartman, 

Jr. was appointed personal representative of the estate. Thereafter, Shirley Hartman presented a carbon copy of the March 22, 

1974 will for probate. The district court entered its order 

admitting the carbon copy to probate. 

The primary conflict concerns the procedure and the proof 

required to probate a lost will under Montana's Uniform Probate 

Code, Section 91A-1-101, et seq., R.C.M. 1947. 

Prior to enactment of Montana's Uniform Probate Code, 
sections 91-1201, 1202, R.C.M. 1947, imposed special requirements of proof in formal testacy proceedings seeking the probate 

of lost or destroyed wills. Section 91-1201, R.C.M. 1947, 

provided : 

"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, provided: 

"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." 

To establish a prima facie case under these statutes, it 

was incumbent upon the proponent of a lost or destroyed will to 

show affirmatively either that the will he proposed was in existence at the time of the death of testator or that it was fraudulently destroyed during his lifetime, in addition to the execution, 

validity and provisions of the will. In re Colbert's Estate, 31 

Mont. 461, 468, 78 P. 971; In re Estate of Una M. Newman, 164 

Mont. 15, 19, 20, 22, 518 P.2d 800. Colbert and Newman also 

stated that a will, last seen in the possession of a testator, 

which cannot be found after a careful and exhaustive search following death, is presumed to have been destroyed by the testator 

with the intent of revoking it, and that this presumption may be 

rebutted by clear and convincing evidence to the contrary. 

Montana's Uniform Probate Code contains no special statutory requirements of proof when seeking probate of a lost or 

destroyed will. The official comment to section 91A-3-303, R.C.M. 

1947, states: 
" * * * Lost or destroyed wills must be established 

in formal proceedings. See Section [91A-3-4023. * * *" 

Section 91A-3-402, R.C.M. 1947, which governs the contents of 

petitions in formal proceedings, provides in pertinent part: 

"If the original will is neither in the possession of the court nor accompanies the petition 

and no authenticated copy of a will probated in 

another jurisdiction accompanies the petition, 

the petition also must state the contents of the 

will, and indicate that it is lost, destroyed, 

or otherwise unavailable." 

Furthermore, Sec 15, Chap. 263, Laws 1975 expressly repealed 

sections 91-1201, 1202, R.C.M. 1947. 

The instant case involves no dispute as to the execution 

of the will, nor its provisions. What respondent contends is 

that the presumption favoring revocation under the circumstance 

of this case was abolished when the special statutory requirements of proof under sections 91-1201, 1202, R.C.M. 1947 were 

repealed. Therefore since section 91A-3-407, R.C.M. 1947 places 

the burden of proof of revocation upon the contestant, he must 

so do without the benefit of the presumption of revocation. Appellant, on the other hand, contends that the presumption discussed 

in Colbert and Newman still exists, and proponent must rebut the 

presumption when it arises by showing the existence of the will 

at the time of the testator's death. Neither of these contentions is entirely correct. 

As found from a reading of Colbert and cases cited therein, the presumption favoring revocation which arises when a will 

known to be in the testator's possession cannot be found after 

his death, originated from the common law of England, where the 

courts are not controlled by any positive statutory provisions. 

Loxley v. Jackson, 3 Phill-Ecc. 126, 161 Eng. Reprint 1277 (1819); 

Colvin v. Fraser, 2 Hagg.Ecc. 266, 162 Eng. Reprint 856, 874, 

(1829); Lillie v. Lillie, 3 Hagg.Ecc. 184, 162 Eng. Reprint 1124 

(1829). Colvin explains the reasoning behind this presumption: 
"All these presumptions, if they come to be 

analysed, may be resolved into the reasonable 

probability of fact, deduced from the ordinary 

practice of mankind and from sound reason. 

Persons in general keep their wills in places 

of safety, or, as we here technically express it, 

'among their papers of moment and concern.' They 

are instruments in their nature revocable: testamentary intention is ambulatory till death; and if 

the instrument be not found in the repositories of 

the testator, where he had placed it, the common 

sense of the matter, prima facie, is that he himself 

destroyed it, meaning to revoke it * * *." 

As this Court stated in Colbert citing In re Kennedy's 

Will, 30 Misc. Rep. 1, 62 N.YS.1011: 

"'"Legal presumptions are founded upon the experience and observation of distinguished jurists as 

to what is usually found to be the fact resulting 

from any given circumstances; and, the result being 

thus ascertained, whenever such circumstances occur, 

they are prima facie evidence of the fact presumed."'" 

The controlling issue in this case is whether the presumption favoring revocation and the statutory requirements of 

proof in sections 91-1202 are one and the same. A thorough research of the law on this point indicates they are not. 

A careful reading of Colbert and Newman show this Court 

was speaking of two separate and distinct rules of law when they 

considered the statute, on one hand, and the presumption on the 

other. In Newman, it is stated: 

"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). * * * 

"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." (Emphasis 

supplied. ) 

Likewise, the courts of New York have made the distinction that statutes in the nature of section 91-1202, R.C.M. 1947, 
did not replace the common law presumption of revocation, but 

added to it. The court, in Knapp v. Knapp,Selden 6, 10 N.Y. 

276, 278 (1851) stated: 

"It was well settled at common law by a long 

series of adjudications in the courts in England, 

and which have been followed by the courts of 

this state, that the presumption of law is, that 

a will proved to have had existence, and not 

found at the death of testator, was destroyed 

animo revocandi. (Betts v. Jackson, 6 Wend., 173; 

Idley v. Bowen, 11 Wend., 227.) And our statute 

has placed this matter beyond all cavil and 

doubt. It is as follows: 'No will of any testator, 

who shall die after this chapter shall take effect 

as a law, shall be allowed to be proved as a lost 

or destroyed will, unless the same shall be proved 

to have been in existence at the death of the 

testator or be shown to have been fraudulently 

destroyed in the lifetime of the testator; nor 

unless its provisions shall be clearly and distinctly proved by at least two credible witnesses, 

a correct copy or draft being deemed equivalent 

to one witness. ' (2 R.S., 68, B 67. ) This 

statute recognizes the former common law rule, by 

requiring proof either that the will was in existence at the time of the death of the testator, 

or that the legal presumption that the testator 

destroyed it animo revocandi be overcome by satisfactory proof that it was fraudulently destroyed 

in the lifetime of the testator." 

The true distinction between the presumption of revocation 

and such statutory requirements of proof is that the former is a 

rule of substantive law governing revocation, whereas the latter 

is a procedural law governing the probate of lost or destroyed 

wills. This distinction is further explained in Justice Traynor's 

dissent in In re Bristol's Estate, 23 Cal.2d 221, 143 P.2d 689, 

"While the overruling of In re Estate of 

Sweetman did much to dispel the confusion engendered 

by that case, the relation of Probate Code, section 

350, to the presumption of revocation that is said 

to arise in these cases still requires clarification. If section 350 provided simply that a presumption of revocation arises in the case of a lost 

will, it would be necessary only to rebut the presumption to prove that the will was in existence 

at the time of the testator's death. A presumption 

of revocation independent of section 350 becomes superfluous, however, if the very existence of the will 

at the time of the testator's death must be proved. 

While proof of that existence establishes the fact of 
nonrevocation, the converse does not follow 

that a will exists because there is no revocation thereof. It would therefore be idle to 

rebut the presumption of revocation if there 

were no proof that a will existed at the time 

of the testator's death. 

"Section 350 cannot reasonably be construed as 

creating a presumption of revocation. It is 

concerned, not with the rules governing revocation, which are specifically set forth in 

section 74 of the Probate Code, but with the 

procedure for establishing a lost or destroyed 

will. * * * Com~liance with the substantive Drc 

visions that deiermine the status of the wili as 

an executed instrument is not enough to render 

the will operative as a conveyance. A will 

cannot be given in evidence as the foundation of 

a right or title unless it has been duly probated * * * and section 350 prescribed the requirements 

that must be satisfied before a lost will can be 

probated. It is therefore not controlling that 

under the substantive provisions of the law, the 

will has been duly executed and has not been 

revoked, for it cannot be probated if the requirements prescribed in the Code for the probate of 

wills cannot be met. The requirement of proof 

that the will existed at the time of the testator's 

death cannot be translated into a requirement of 

proof of nonrevocation." (Emphasis supplied.) 

Other authorities also point out this presumption is a 

substantive rule of law related to revocation by a physical act, 

rather than a procedural rule governing lost or destroyed wills. 

on 

9 Wigmore/Evidence 3d Ed, B 2523, states: 

"The revocation of a will by destruction 

may be inferred, on a principle of Relevancy 

already considered * * * from the fact that it 

once existed but cannot be found at the testator's death." (Emphasis supplied.) 

Atkinson Wills 2nd Ed, S 101, p. 553,states 

"The matter of revocation by physical act is complicated by the operation of presumptions under certain 

circumstances. Thus, it is often held that where the 

will was in testator's possession and cannot be found 

at the time of his death, it will be presumed that the 

testator destroyed it with intent to revoke, and the 

same has been held where a duplicate will in testator's 

possession cannot be found. Indeed it is often said 

that the burden of proof is on the proponent under 

these circumstances. * * *" (Emphasis supplied.) 

Furthermore, this presumption is controlling in jurisdictions which do not have and never have had statutes imposing 

specific requirements of proof for probating lost or destroyed 
wills. This statement is found at Anno. 3 ALR2d 949, 986: 

"It has been provided by statute in some instances 

that no will shall be proved as a lost will unless 

it is shown to have been in existence at the time 

of the death of the testator, or is shown to have 

been destroyed either without his consent or 

fraudulently during his lifetime. Among the jurisdictions which, as shown by the adjudications 

falling within the scope of this annotation, have 

had statutes which in effect so provide, are 

Arkansas, California, Indiana, Montana, New York, 

Ohio, and Washington." 

Nevertheless, the annotation lists another 32 jurisdictions 

which adhere to this presumption and have done so for a long 

time, as evidenced by these few cases: Throckmorton v. Holt, 

180 U.S. 552, 21 S.Ct. 474, 45 L ed 663 (1901); McBeth v. McBeth, 11 Ala. 596 (1847); Weeks v. McBeth, 14 Ala. 474 (1848); 

Allen v. Scruggs, 190 Ala. 654, 67 So 301 (1914); Valentine's 

will, 93 is. 45, 67 N.W. 12 (1896); Scoggins v. Turner, 98 N.C. 

135, 3 S.E. 719 (1887); Shacklett v. Roller, 97 Va. 639, 34 S.E. 

Thus the repeal of sections 91-1201, 1202, R.C.M. 1947 

did not abolish the rebuttable presumption of revocation, which 

arises when a duly executed will, last seen in the testator's 

possession, cannot be found at his death. Section 91A-3-407, 

R.C.M. 1947, provides in part: 

"In contested cases, petitioners who seek to 

establish intestacy have the burden of establishing prima facie proof of death, venue, and heirship. Proponents of a will have the burden of 

establishing prima facie proof of due execution 

in all cases, and, if they are also petitioners, 

prima facie proof of death and venue. Contestants 

of a will have the burden of establishing lack of 

testamentary intent or capacity, undue influence, 

fraud, duress, mistake or revocation. Parties have 

the ultimate burden of persuasion as to matters 

with respect to which they have the initial burden 

of proof. * * *" 

As the official comment states, this is a fairly general approach 

to questions concerning burdens of going forward with the 
evidence. In essence, the procedure is the same as that under 

the old law. As stated in In re Colbertls Estate, 31 Mont. 461, 

"In order to simplify the discussion, it will 

be well to ascertain first what are the essentials in proving a lost will. In every case under 

our statute the rule of procedure is that the 

proponent of the will must first make out a prima 

facie case; that is to say, must make such proof 

as would entitle the will to probate in the absence 

of a contest. Then the contestant attacks the 

validity of the will, the proponent defends the 

same, and the contestant rebuts the testimony of 

the proponent." 

What we have held is that the contestant may utilize this rebuttable presumption in meeting his burden of proving revocation. 

The proponent then has the burden of going forward with sufficient 

evidence to rebut this presumption. 

However, appellant is mistaken in asserting that the 

proponent can only rebut the presumption by proving existence of 

the will subsequent to the testator's death. In addition to 

such evidence, the proponent may also show (1) that one other 

than the testator had possession of the will; (2) that the testator was on friendly or unfriendly terms with certain interested 

persons; (3) that the testator was physically or mentally incapable of destroying the will with the intent to revoke; or (4) 

that another had the opportunity to dispose of the will and 

benefit thereby. See3ALR2d 949. This list has not been exhausted; 

certainly there may be other factors relevant to the issue. In 

any event, the proof required must be clear, satisfactory and 

convincing. In re Colbertls Estate, supra. 

The second issue raised by appellant is that the district 

court erred in disallowing certain declarations of decedent in 

which he allegedly stated to his son that he had destroyed his 

will and the reason for doing so. This issue is well settled 

in Montana by Colbert. Such declarations are not admissible, 
unless they are a part of the res gestae, and are used to simply 

show the mental state of the testator when he either executed 

the will or when he destroyed it. An extensive discussion of 

the reasoning for this rule of law is provided in Colbert. The 

declarations sought by appellant were not admissible, since no 

act of destroying the will was ever proven. What appellant was 

trying to prove by these declarations was the act of destroying 

the will, not the intent of the decedent while the alleged 

destruction was taking place. The district court was correct 

in its exclusion of the evidence. 

This case is remanded for hearing consistent with this 

opinion. 

Chief Justice D