### No. 13099 IN

### THE 

### SUPREME COURT OF THE STATE OF MONTANA



### INTHE MATTER OF THE ESTATE OF 

### MALINUS E. 

### GUDMUNSEN, Deceased.

Appeal from: District Court of the Thirteenth Judicial District, Honorable Charles Luedke, Judge presiding. Counsel of Record: 

### For Appellant: Hutton, Sheehy and Cromley, Billings, Montana John C. 

### Sheehy argued, Billings, Montana For Respondent: 

### WilliamA. 

### Blenkner and C. 

### Ed Laws, Columbus,

Montana Luxan, Murfitt and Davis, Helena, Montana Walter S. Murfitt argued, Helena, Montana

Submitted: December 

### 2, 1975 Decided :

# JAN J4

# I9T6 Filed: 

### L-jA!'! 

# 5

# 4$976Mr. Chief Justice 

### James T. Harrison delivered the Opinion of the Court. This 

### isan appeal from an order of the districtcourt, Stillwater County, refusing to admit toprobate the purported holographic 

### willof Malinus E. Gudmunsen, deceased. Malinus E. Gudmunsen died asa result of a f i r e i nhis farm home near Rapelje, Montana. The death certificate 

### set the date of death asDecember 

### 14, 1972. On January 10, 1973, Bruce Henderson, respondent, 

### was appointed special administrator of the estate of Malinus E. Gudmunsen. In January, 1973, respondent went toGudmansen's farm house and gathered what appeared tobe the valuable papers of Gudmunsen, taking them home for sorting. Among thesepapers he found a document, written on tablet paper, inGudmunsen's handwriting, which appeared tobe an attempt by Gudmunsen to make 

### a last

### will and testament. This document was ina burned condition, with the edges having been singed and partially burned away. A copy of the document 

### ishere reproduced:Appellant, Andrew Campbell, was the stepson of Gudmunsen;

was never adopted by him, but lived with him from age 12until entering the armed forces during World War I1 atage 28. The record 

### is uncontradicted that appellant and Gudmunsen 

### were on very friendly 

### terms and frequently visited each other. Testimony in the record indicates appellant was the natural and desired person towhom Gudmunsen wished to leave his property. On March 21, 1974, respondent filed indistrict court his petition for 

### letters of administration, filing the purported 

### will for informational purposes. On April 

### 1, 1974, appellant filed his contest torespondent's petition and a cross-petition for 

### letters of coadministration. A hearing was held May 7, 1974,

on the petitions. On June 12, 1974, the district court entered 

### its order denying the contest and cross-petition of appellant and refusing probate of the purported holographic 

### will. Respondent's petition for letters of administration was granted. Appellant appeals the order. The issue presented for review by this Court 

### iswhether

a document purported tobe a holographic 

### will isvalid asa 

### last 

### willand testament inMontana if said document 

### is totally without 

### a date. A holographic 

### will is defined in section 91-108, R.C.M.

" 

## * * * one that 

### is entirely written, dated, and signed by the hand of the testator himself. 

# * * *" There 

### isno question that under section 91-108, a date, 

### inthe testator's handwriting, isrequired inorder to have 

### a valid holographic 

### will. The plain language of the statute says so. The date need not be complete, so long as the month and year arepresent, In 

### re Irvine's Estate, 114Mont. 577, 139 P.2d 489; but the datemust contain atleast themonth and year, Estate of French, 137 Mont. 228, 351 P.2d 548; 

### wellknown abbreviations of the date are sufficient, so long asnot written in a confusing manner, 94 C.J.S. Wills

### 5 205, p. 1045; In reVan Voast's Estate, 127 Mont. 450, 266 P.2d 377. In any events inMontana under section 91-108, 

### a date, written inthe testator's handwriting 

### is a prerequisite for holding a purported holographic 

### willvalid. An examination of the face of the purported holographic 

### willreveals no date. The burned portions of the document do not provide sufficient space for the decedent tohave written out the date in fullnor even abbreviations of the date. All dates inthe body of the document arewritten out infull. We agree with the finding of the district court that no date appeared on the document prior to 

### its partial destruction or 

### atthe present time. Appellant argues that a 

### will is tobe construed according to the intention of the testator and his intentions are to be carried out totheir fullest extent possible. Section 91-201, R.C.M. 1947. He also argues intestacy is tobe avoided and of two modes of interpretation of a 

### will, the mode preventing 

### total intestacy 

### ispreferred. Section 91-210, R.C.M. 1947. He argues further that constructionswhich lead to intestacy arenot favored and such interpretation should come, if reasonably possible, to be placed upon a 

### willas

### willprevent that result. In 

### re Spriggs' Estate, 70 Mont. 272, 225 P. 617. We find no faultwith these arguments, but a valid 

### willmust exist before 

### it can be construed

or interpreted. No valid 

### willexists inthis action. As Chief Justice Brantly stated in In reNoyes' Estate, 40 Mont. 178, 186, 187, 105 P. 1013: 

### " 

## * * 

## * It isnot for the courts to say that a mode of execution or authentication, other than that prescribed by law, subserves the same purpose, and 

### is equally efficient tovalidate the instrument. The legislativemandates are supreme, and there 

### is no right tomake testamentarydisposition except upon compliance with those mandates. 

## * * 

## *" The Chief Justice continued: 

### " 

## * * * After the writing is shown tohave been executed and authenticated by observance of the technical requirements which the legislature has imposed, then the instrument 

### willbe construed liberally inorder to give effect to the testator's intention. Upon the application for probate, however, the sole inquiry about which the court is concerned 

### iswhether these requirements have been complied with. The courtsmay not, therefore, out of regard for the supposed intention of the testator, however clearly 

### it may be manifested by the attendant circumstances, adopt 

### a rule which would open the way for the same frauds which the statute

### was designed toprevent. 

## * * *" Wereaffirm this reasoning. Appellant argues the Uniform Probate Code (U.P.C.), effectiveJuly 

### 1, 1975, 

### is applicable tothe purported 

### willand the probate contest. Wedo not agree. The pertinent statutory language 

### is contained in section 91A-6-102, R.C.M. 1947: "Effective date. 

### (1)This code takes effect July 

### 1, 1975. "(2) Except asprovided elsewhere in this code, on the effective date of this code: "(a)the code applies toany 

### willsof decedents dying thereafter; "(b)the code applies toany proceedings in court then pending or thereafter commenced regardless of the 

### timeof the death of decedent except to the extent that inthe opinion of the court the former procedure should be made applicable in a particular case inthe interest of justice or because of infeasibilityof application of the procedure of this code;

"(d)an act done before the effective date in any proceeding and any accrued right 

### is not impaired by this code. 

## * * *" (Emphasis added.) By this language, the legislature intended the procedural rules of the U.P.C. should apply to any probate proceeding pending or commenced after July 

### 1, 1975. The substantive rules ofthe U.P.C. arenot given retroactive or retrospective effect, but only apply tothe 

### willsof decedents dying after July 1, 1975. the 

### willof Allproceedings inthe probate of/Malinus E. Gudmunsen, excepting this appeal, occurred prior toJuly 1, 1975. He died

on December 

### 14, 1972. Respondent's petition 

### was filedMarch 21, 1974, and appellant's contest and cross-petition 

### were filed April 

### 1, 1974. The hearing 

### was held May 7, 1974, and the order

was entered June 12, 1974. The new definition of 

### a holographic 

### will, section 91A2-503, R.C.M. 1947, would not apply to the purported holographic 

### will inthis action, since the decedent died prior tothe effective date of the U.P.C. Due tothe inapplicability of the U.P.C. tothis action

### we need not determine whether a date isrequired

on a holographic 

### willunder the U.P.C. It 

### is 

### a difficult decision todeclare a 

### willinvalid which clearly contains the desires of a testator as tothe distribution of his property to those he feltclosest to in life, especially when those persons 

### willreceive 

### little or nothing by way of intestate succession, but what was said by Chief Justice Johnson inhis dissent in In re Irvine's Estate, 114Mont. 577, 594, comes tomind: "It

### is

### a well known saying that hard cases make bad law, meaning that the sympathies of judges sometimes tend to interfere with their impartial application of legal rules, aswhere the natural disappointment of a prospective legatee 

### is permitted toobscure the fact that the document has not been executed asrequired by statute and therefore does not constitute a 

### will. However, in the great majority of cases the courts suppress these sympathies inorder tokeep our government one of laws and not of men." The order the distmurt

### is affirmed./


# / 

# !

- Chief Justice

### We concur:

Justices