No. 13099 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN THE 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 : 

William A. 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 J 4 I9T6 

Filed: L-jA!'! 5 4 $976 
Mr. Chief Justice James T. Harrison delivered the Opinion of 

the Court. 

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

Stillwater County, refusing to admit to probate the purported 

holographic will of Malinus E. Gudmunsen, deceased. 

Malinus E. Gudmunsen died as a result of a f i r e i n his 

farm home near Rapelje, Montana. The death certificate set 

the date of death as December 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 to Gudmansen's 

farm house and gathered what appeared to be the valuable papers 

of Gudmunsen, taking them home for sorting. Among these papers 

he found a document, written on tablet paper, in Gudmunsen's 

handwriting, which appeared to be an attempt by Gudmunsen to 

make a last will and testament. This document was in a burned 

condition, with the edges having been singed and partially burned 

away. A copy of the document is here reproduced: 

Appellant, Andrew Campbell, was the stepson of Gudmunsen; 

was never adopted by him, but lived with him from age 12 until 

entering the armed forces during World War I1 at age 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 

to whom Gudmunsen wished to leave his property. 

On March 21, 1974, respondent filed in district court 

his petition for letters of administration, filing the purported 

will for informational purposes. On April 1, 1974, appellant 

filed his contest to respondent'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 is whether 

a document purported to be a holographic will is valid as a last 

will and testament in Montana 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 is no question that under section 91-108, a 

date, in the testator's handwriting, is required in order 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 are present, In re Irvine's Estate, 114 Mont. 

577, 139 P.2d 489; but the date must contain at least the month 

and year, Estate of French, 137 Mont. 228, 351 P.2d 548; well 
known abbreviations of the date are sufficient, so long as not 

written in a confusing manner, 94 C.J.S. Wills 5 205, p. 1045; 

In re Van Voast's Estate, 127 Mont. 450, 266 P.2d 377. In any 

events in Montana under section 91-108, a date, written in the 

testator's handwriting is a prerequisite for holding a purported 

holographic will valid. 

An examination of the face of the purported holographic 

will reveals no date. The burned portions of the document do 

not provide sufficient space for the decedent to have written 

out the date in full nor even abbreviations of the date. All 

dates in the body of the document are written out in full. We 

agree with the finding of the district court that no date appeared on the document prior to its partial destruction or at the 

present time. 

Appellant argues that a will is to be construed according to the intention of the testator and his intentions are to 

be carried out to their fullest extent possible. Section 91-201, 

R.C.M. 1947. He also argues intestacy is to be avoided and of 

two modes of interpretation of a will, the mode preventing total 

intestacy is preferred. Section 91-210, R.C.M. 1947. He argues 

further that constructions which lead to intestacy are not favored 

and such interpretation should come, if reasonably possible, to 

be placed upon a will as will prevent that result. In re Spriggs' 

Estate, 70 Mont. 272, 225 P. 617. We find no fault with these 

arguments, but a valid will must exist before it can be construed 

or interpreted. No valid will exists in this action. 

As Chief Justice Brantly stated in In re Noyes' Estate, 

40 Mont. 178, 186, 187, 105 P. 1013: 

" * * * It is not 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 to validate the 

instrument. The legislative mandates are supreme, 

and there is no right to make testamentary 
disposition except upon compliance with those 

mandates. * * *" 

The Chief Justice continued: 

" * * * After the writing is shown to have been 

executed and authenticated by observance of the 

technical requirements which the legislature has 

imposed, then the instrument will be construed 

liberally in order to give effect to the testator's 

intention. Upon the application for probate, 

however, the sole inquiry about which the court is 

concerned is whether these requirements have been 

complied with. The courts may 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 

to prevent. * * *" 

We reaffirm this reasoning. 

Appellant argues the Uniform Probate Code (U.P.C.), 

effective July 1, 1975, is applicable to the purported will and 

the probate contest. We do 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 as provided elsewhere in this code, 

on the effective date of this code: 

"(a) the code applies to any wills of decedents 

dying thereafter; 

"(b) the code applies to any proceedings in court 

then pending or thereafter commenced regardless 

of the time of the death of decedent except to the 

extent that in the opinion of the court the former 

procedure should be made applicable in a particular 

case in the interest of justice or because of infeasibility of 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 of 
the U.P.C. are not given retroactive or retrospective effect, 

but only apply to the wills of decedents dying after July 1, 1975. 

the will of 

All proceedings in the probate of/Malinus E. Gudmunsen, 

excepting this appeal, occurred prior to July 1, 1975. He died 

on December 14, 1972. Respondent's petition was filed March 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 in this action, since the decedent died prior to the effective date of the U.P.C. Due to the inapplicability of the U.P.C. 

to this action we need not determine whether a date is required 

on a holographic will under the U.P.C. 

It is a difficult decision to declare a will invalid which 

clearly contains the desires of a testator as to the distribution 

of his property to those he felt closest to in life, especially 

when those persons will receive little or nothing by way of intestate succession, but what was said by Chief Justice Johnson 

in his dissent in In re Irvine's Estate, 114 Mont. 577, 594, comes 

to mind: 

"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, as where the natural 

disappointment of a prospective legatee is permitted to obscure the fact that the document has 

not been executed as required by statute and 

therefore does not constitute a will. However, 

in the great majority of cases the courts suppress 

these sympathies in order to keep our government 

one of laws and not of men." 

The order the distmurt is affirmed./ 

/ ! - Chief Justice 
We concur: 

Justices