No. 13391 INTHE SUPREME COURT OF THE STATE OF MONTANA 1977

INTHE MATTER OF THE ESTATE OF WALLACE J. HARTMAN, SR., Deceased.

Appeal from: DistrictCourt 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: 

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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 onMarch 22, 1974, in the office of CharlesM. 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 somepersonal 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 ProbateCode,

### 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 courtmust 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 givenmust be reduced to writing, and signed by the witnesses."

Section 91-1202,R.C.M. 1947,provided: "Nowill shallbe 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 crediblewitnesses." 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 itwas 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 

### willsmust 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 inpertinent part: "If the original

### will isneither inthe possession of the court nor accompanies the petition and no authenticated copy of 

### a 

### willprobated in another jurisdiction accompanies the petition, the petition alsomust 

### state the contents of the 

### will, and indicatethat 

### 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 tothe execution of the 

### will, nor 

### itsprovisions. What respondent contends is that thepresumption favoring revocation under the circumstance of this casewas 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 inColbert and Newman 

### still exists, and proponent must rebut the presumption when it arises by showing the existence of the

### will atthe 

### timeof the testator's death. Neither of these contentions 

### is entirelycorrect. As found from 

### a reading of Colbert and cases cited therein, the presumption favoring revocation which arises when a 

### will known tobe in the testator's possession cannot be found after his death, originated from the common 

### lawof England, where the courts arenot controlled by any positive statutory provisions. Loxley v. Jackson, 3 Phill-Ecc. 126, 161Eng. Reprint 1277 (1819); Colvin v. Fraser, 2 Hagg.Ecc. 266, 162 Eng. Reprint 856, 874, (1829); Lilliev. Lillie, 3 Hagg.Ecc. 184, 162 Eng. Reprint 1124 (1829). Colvin explains the reasoning behind thispresumption:"All these presumptions, if they come tobe analysed, may be resolved into the reasonable probability of fact, deduced from the ordinary practice of mankind and from sound reason. Persons ingeneral keep their 

### willsinplaces of safety, or, as

### we here technically express 

### it, 'among their papers of moment and concern.' They areinstruments 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 thematter, prima facie, 

### is that he himself destroyed 

### it, meaning torevoke it 

## * * 

## *." As this Court stated inColbert citing In 

### re Kennedy's Will, 30 Misc. Rep. 

### 1, 62 N.YS.1011: "'"Legal presumptions 

### are founded upon the experience and observation of distinguishedjurists as towhat 

### isusually found tobe the factresulting from any given circumstances; and, the result being thus ascertained, whenever such circumstances occur, they areprima facie evidence of the factpresumed."'" The controlling issue inthiscase 

### iswhether the presumption favoring revocation and the statutoryrequirements of proof in sections 91-1202 areone and the 

### same. A thorough 

### research of the law on thispoint indicates they arenot. 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 toestablish 

### 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 thiscase, a presumption 

### arises that the deceased destroyed the

### willanimo revocandi (withintention torevoke). 

## * * 

## * "For the reason that the respondents did not 

### meet their burden of proof that the willwas actually inexistence or inexistence incontemplation of law atthe 

### timeof deceased's death, and for the reason that the presumption of destruction isnot overcome by the testimony adduced atthe hearing, the district court erred inadmitting the

### willtoprobate." (Emphasis supplied.) Likewise, the courts of New York have made the distinction that statutes inthe nature of section 91-1202, R.C.M. 1947,did not replace the common law presumption of revocation, but added to it. The court, inKnapp v. Knapp,Selden 6, 10N.Y. 276, 278 (1851) stated: "Itwas 

### well settled atcommon law by a long 

### series of adjudications inthe courts inEngland, and which have been followed by the courts of this state, that the presumption of law 

### is, that 

### a willproved tohave had existence, and not found 

### at the death of testator, was destroyed animo revocandi. (Bettsv. Jackson, 6 Wend., 173; Idley v. Bowen, 

### 11Wend., 227.) And our statute has placed thismatter beyond 

### allcavil and doubt. It 

### is asfollows: 'No 

### willof any testator,

who shall die after this chapter shall take effect as 

### a law, shall be allowed tobe proved 

### as a lost ordestroyed will, unless the 

### same shall be proved tohave been inexistence atthe death of the testator or be shown tohave been fraudulently destroyed inthe lifetime of the testator; nor unless 

### its provisions shallbe clearly and distinctlyproved by at

### least two crediblewitnesses, a correct copy or draft being deemed equivalent toone witness.

## ' (2 

### R.S., 68, 

### B 67.) This statuterecognizes the former common law rule, by requiring proof either that the will

### was inexistence atthe time of the death of the testator, or that the legal presumption that the testator destroyed 

### it animo revocandi be overcome by 

### satisfactoryproof 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 isthat the former 

### is a ruleof substantive law governing revocation, whereas the latter 

### is a procedural 

### lawgoverning the probate of lostor destroyed wills. This distinction 

### is further explained inJustice Traynor's dissent in In reBristol's Estate, 23 Cal.2d 221, 143 P.2d 689,

"While the overruling of In reEstate of Sweetman didmuch todispel the confusion engendered by that case, the relation of Probate Code, section 350, tothe presumption of revocation that is said toarise in these cases still requires clarification. If section 350 provided simply that a presumption of revocation arises inthe case of a lost 

### will, it would be necessary only torebut the presumption toprove that the willwas inexistence 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 atthe 

### timeof the testator's deathmust be proved. While proof of that existence establishesthe fact ofnonrevocation, the converse does not follow that a 

### willexists because there is no revocation thereof. Itwould therefore be idle to rebut the presumption of revocation if there 

### were no proof that a 

### will existed atthe 

### 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

### wilias an executed instrument 

### is not enough torender the

### willoperative as

### a conveyance. A 

### will cannot be given in evidence asthe foundation of a right or

### titleunless it has been duly probated 

## * * * and section 350 prescribed the requirements thatmust be satisfied before 

### a lost

### willcan be probated. It is therefore not controlling that under the substantiveprovisions of the law, the willhas been duly executed and has not been revoked, for it cannot be probated if the requirements prescribed inthe Code for the probate of 

### willscannot be met. The requirement of proof that the

### willexisted 

### atthe time of the testator's death cannot be translated into a requirement of proof of nonrevocation." (Emphasis supplied.) Other authorities alsopoint out thispresumption is a substantiverule of law related torevocation 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 

### willby destruction may be inferred, on a principle of Relevancy already considered 

## * * * from the fact that it once existed but cannot be found atthe 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 

### willwas intestator's possession and cannot be found atthe 

### timeof his death, 

### it willbe presumed that the testator destroyed it with intent torevoke, and the same has been held where a duplicate willin testator's possession cannot be found. Indeed it isoften said that the burden of proof is on the proponent under these circumstances. 

## * 

## * *" (Emphasis supplied.) Furthermore, thispresumption is controlling injurisdictions 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: "Ithas been provided by statute in some instances that no will shall be proved as a lostwill 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 fallingwithin 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, 11Ala. 596 (1847);Weeks v. McBeth, 14 Ala. 474 (1848); Allen v. Scruggs, 190Ala. 654, 67 So 301 (1914); Valentine's will, 93 is. 

### 45, 67N.W. 12 (1896);Scoggins v. Turner, 98N.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 rebuttablepresumption of revocation,which ariseswhen 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. Proponentsof 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 theevidence. In essence, the procedure is the same asthat under the old law. As stated in In 

### re ColbertlsEstate, 31 Mont. 461,

"In order to simplify the discussion, 

### it 

### will be 

### welltoascertain firstwhat arethe essen

### tials in proving a lostwill. In every case under our statute the rule of procedure is that the proponent of the

### willmust firstmake out a prima facie case; that is to say, must make such proof aswould entitle the 

### willtoprobate inthe 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 

### isthat the contestant may utilize thisrebuttable presumption inmeeting hisburden of proving revocation. The proponent then has the burden of going forward with sufficient evidence torebut thispresumption. However, appellant 

### ismistaken in asserting that the proponent can only rebut the presumption by proving existence of the 

### will subsequent tothe 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 

### termswith certain interested persons; (3) that the testator was physically ormentally incapable of destroying the 

### willwith the intent torevoke; or (4) that another had the opportunity todispose of the 

### will and benefit thereby. See3ALR2d 949. This list has not been exhausted; certainly theremay be other factors relevant tothe 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 indisallowing certain declarations of decedent in which he allegedly stated tohis son that he had destroyed his willand the reason for doing so. This issue iswell settled inMontana by Colbert. Such declarations 

### are not admissible,

### unless they area part of the res gestae, and areused to simply show themental stateof the testator when he either executed the willorwhen he destroyed it. 

### An extensive discussion of the reasoning for thisrule of law is

### provided in Colbert. The declarations sought by appellant 

### werenot admissible, since no actof destroying the

### willwas ever proven. What appellantwas trying toprove 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

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