### at Allen, J 

### gepresiding,Mr. JusticeWesley Castles delivered the Opinion of the Court. Appellant, petitioner for probate of a lost will in the district court, seeks reversal of a judgment of the district court,Musselshell County, the Hon. Nat Allen, presiding without

a jury. The judgment denied thepetition and allowed administration to continue in accordancewith the descent and distribution statutesof Montana. JosephW. Spear, a resident of Musselshell County,died August 10, 1973. His estate consisted of 640acres of real estate, 23 :headof cattle, 582 hogs,and a house located on the land. Those surviving him included his sisterMuriel S. Farmer,grandnephew John

### W. Owen,pet~itionerand appellant here, two other sisters, two brothers, a nephew and a niece, No will of deceased could be located and Muriel was appointed administratrix of the estate onAugust 31, 1973. Notice to creditorswas published and claimswere filed. On August 12, 1974,pet.itioner filed a petition to probate

a lostwill.. The lostwill, according to petitioner, was prepared by attorney ThomasM. Ask, and itprovided that all of decedent's property would be divided between Muriel and petitioner. The basis for this determinationby decedent appears to have been Muriel's monetary assistance and laborwhich she donated to decedent's ranching operation,and the filial relationship between petitioner and decedent, who had been the petitioner's legal guardian since the petitioner was age 6. The lostwill was alleged to have been properly executed, unrcvoked,and in existence at the time of death. Attached to the pe-titionwas the affidavit of Thomas M. Ask setting forth the date thewill was drafted, that the will was properly executed, as well as the general provisions of the lostwill. It also stated that in June or July 1973,Joseph

### W. Spear had come to Ask's officeseeking sone changes in thewill. The changes soughtwould have effected a specific division of the estate between petitioner and Muriel. Half the land and all the cattlewould go to petitioner,while Muriel would get half the land and the entire hog operation. This contrasted with the alleged lost will which provided for a distribution to Muriel and Owen in common of the estate. Spear had concluded suchdistributionwould not be manageable and only result in dispute. A newwill was subsequently drafted incorporating these changesbut was never executed because of Spear" death. A hearing on the petition for probate of the lostwill

was held September 27, 1974. Decedent's attorney, ThomasAsk, testified, along with his former secretarywho had typed the alleged lostwill. Also, petitioner Owen testified at the hearing, After the hearing, the district courtdetermined the presumption that the testator Spear had destroyed the lost will intending to revoke it,had not been rebutted by petitioner. In addition, the district court concluded that insufficientproof of the provisions ni the will had been presented in view of the requirements of section 91-1202,R.C.M. 1947. Based on these determinations the district court refused to admit the lost will to probate. This appeal ensues from those district courtdeterminations. The issuespresented in this appealmay be summarized: 1. Did the petitioner present sufficientproof to overcome!the presumption that decedent had destroyed tlie lost will, intending to revoke it? 2. Did the petitioner prove the provisions 

### of the lost will clearly and distinctly by at least two crediblewitnesses

as required by section 91-1202,R,C.M, 1947? Section 91-1202, governs the admission of lost wills to probate and provides:"Nowill shall be proved as a lost or destroyed will unless the same isproved to have been in existence at the time of the death of the testator, -

### -- ZYisshown to have been fraudulentlvdestroved

A in the lifetime of testator, 

## - nor unless itsprovisions are clearly and distinctly proved by atleast two credible .- witnesses."(Emphasis 

### Gm.) With respect to the issues, the findings of fact and conclusions of law of the district courtwere, in part: "IV. That testimony introduced herein indicates t.hata searchwas made for the Last Will and Testament of JosephW. Spear, or a copy thereof, and neither the original of said Will was ever found by Muriel S. Farmer,nor was a copy of said Will found by Thomas

### M, Ask, "V. That there has been no testimony introduced in support of the proof of the lostWill which indicates that the Will was in existence at the time of the testator's death,nor is there any testimony which indicates that suchWill had been frauduLently destroyed during the lifetime of Joseph W. Spear. "VL. That the testimony introduced herein pertaining to the provisions of the lost Will has not been sufficient to clearly and distinctly prove the lost Will by two credible witnesses, the only witness who testified with credibility in connection with the provisions of said lost Will being Thomas M. Ask. "VII. That although a search was made to find the lost Will, or a copy thereof, such searchdid not reveal either the original lostWill, nor any copy, and by reason thereof a presumption arises that JosephW. Spear destroyed the Will with intention to revoke it; that there is no clear, satisfactory and convincing evidence to overcome thispresumption. "AND FROM THE FOREGOING FINDINGS OF FACT THE COURT CONCLUDESAS A MATTER OF LAW AS FOLLOWS: "I. That the purported Last Will and Testament of JosephW. Spear has not been sufficientlyproved in accordancewith Section 91-1202,R.C.M. 1947. "11. That no evidence has been introduced which would overcome the rebuttable presumption that the decedent, JosephW. Spear,destroyed his Last Will and Testament with intention to revoke it. "111. That the Petition to Probate the Lost Will of JosephW. Spear should be denxed and the Administratrix directed to continue with the administration of the estate and to distribute the estate of Joseph W. Spear to his heirs at law in accordance with the statutesof the State of Montana in such casesmade and provided,

### "The only person who testified as to the contentsof the will in a clear and distinct manner was attorneyAsk who prepared thewill which was apparently executed in 1968 or 1969. Also, Mr. Ask was the only witness who lends any evidence that the will may have been in existence some 2 or 3 weeks before death because when decedent requested that a new will be prepared,he told his attorney that he did not bring his old will wlth him because 

### " 

## * 

## * * he didn't have time to look for it." And also that, "Idon't need it, I know the changes 

### Iwant to make." Then,petitioner Owen testified as to thedecedent's life style, and that losing ormisplacing a will was consistent with that life style. But for our purposes here, arguendo,we will accept the fact the will was in existence at the time of death. Returning now to our statement that Mr. Ask was the only wxtnesswho testified as to the contentsof the will in a clear and distinctmanner, we examine the other two witnesses' testimony--Mrs. Bowers, former secretary to attorneyAsk, testified: "Q. And do you recall whether or not Mr, Spear asked Mr. Ask for a will? 

### A. Yes. "Q. To prepare a will, what do you remember ahout the will? A. Well, I remember typing the will, I remember one heir that was made because 

### I happen to knowwho he was. "Q. Who was that? A. That was John Owen. "Q. How do you remember? 

### A. He knewmy daughter and I knew him through school and knewwho he was." Shedid not recallwitnessing the will and specifically did not recall the provisions of the will other than one heir as she stated above. She testified further: "Q. Mrs, Bowers when you were secretary in the office and typed the will, can you tellme whether or not you witnessed the will? A. Yes, quite often. "Q. And canyou tellme whether or not you recall doing so on this occasion? 

### A. No, I can't tell youif 

### I did or not, if there were two of us in the office one or the other would witness it. 

### If 

### I were in the office alone Iwitnessed it. We had a lot of wills to handle so I can't recall all of them." John Owen, petitioner here, was allowed over objection to testify: "A. Well the conversation,you know--I don'tknow exactly how the conversationwent. I know Iwas concerned because 

### I had previously had bad luck with estates and 

### Iknowhe had too,and I can't remember exactly how I asked him, if he had things,you know, set for his death or his estate or anything, but I do remember that he indicated to me that he had, but that he wasn't happy with it,and that by this time Muriel and 

### I had had several good rows and he figured we couldn't get along and for an equal distribution. "Q. Did he indicate at this time that he had a will? A. Yes. "Q. Did he tell you what the provisions of that will were? A. Kind of share and share alike. 

### "Q. With whom? 

### A. With Muriel., "Q. That is between you and Muriel? 

### A. Yes. "Q. Did he indicate who the administratorwas? 

### A. NO. "Q. Did he indicate that any other person was to receive any portion of the farm or his operation? 

### A. No. As amatter of fact that is about as far as the conversationwent,we dropped the subject and we went on to something else." Thus, it is seen that the witnesses Bowers and Owen did not have any clear and distinct knowledge of the contents of a will.. This evidence fails to meet the requirementsof section 91-1202,R.C.M. 1947. ThisCourt articulated the rules set out in that section in In re Estate of Newrnan, 164 Mont. 15, 518 P.2d 800. In that case the Court found it unnecessary to address itself to the criteria of clear and distinctproof of the provisions of the will by at Least two crediblewitnesses. However, the Court did dist-inctlydefine the burden of proof in such a lost will situation. The evidence in the instant case simply isnot sufficient to prove by clear and distinctproof by two credible witnesses the provisions of the lostwill. Accordingly, the district court was correct and is affirmed

# .

I' kaief Justice