at Allen, J ge presiding, 
Mr. Justice Wesley 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 the petition and allowed administration to continue in accordance with the descent and distribution statutes of Montana. 

Joseph W. Spear, a resident of Musselshell County, died 

August 10, 1973. His estate consisted of 640 acres of real estate, 

23 :head of cattle, 582 hogs, and a house located on the land. 

Those surviving him included his sister Muriel S. Farmer, grandnephew John W. Owen, pet~itioner and 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 on August 31, 1973. Notice to creditors was published and 

claims were filed. 

On August 12, 1974, pet.itioner filed a petition to probate 

a lost will.. The lost will, according to petitioner, was prepared 

by attorney Thomas M. Ask, and it provided that all of decedent's 

property would be divided between Muriel and petitioner. The basis 

for this determination by decedent appears to have been Muriel's 

monetary assistance and labor which 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 lost will was alleged to have been properly executed, 

unrcvoked, and in existence at the time of death. Attached to the 

pe-tition was the affidavit of Thomas M. Ask setting forth the 

date the will was drafted, that the will was properly executed, as 

well as the general provisions of the lost will. It also stated 

that in June or July 1973, Joseph W. Spear had come to Ask's office 
seeking sone changes in the will. The changes sought would have 

effected a specific division of the estate between petitioner 

and Muriel. Half the land and all the cattle would 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 such distribution would not be 

manageable and only result in dispute. A new will was subsequently drafted incorporating these changes but was never executed 

because of Spear" death. 

A hearing on the petition for probate of the lost will 

was held September 27, 1974. Decedent's attorney, Thomas Ask, 

testified, along with his former secretary who had typed the alleged lost will. Also, petitioner Owen testified at the hearing, 

After the hearing, the district court determined 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 insufficient proof 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 court determinations. 

The issues presented in this appeal may be summarized: 

1. Did the petitioner present sufficient proof 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 credible witnesses 

as required by section 91-1202, R,C.M, 1947? 

Section 91-1202, governs the admission of lost wills to 

probate and provides: 
"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, - -- ZYis shown to have been fraudulentlv A destroved 

in the lifetime of testator, - nor unless its provisions 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 court were, in part: 

"IV. That testimony introduced herein indicates 

t.hat a search was made for the Last Will and Testament of Joseph W. 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 lost Will which indicates that the Will was in existence at the time of 

the testator's death, nor is there any testimony 

which indicates that such Will 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 search did not 

reveal either the original lost Will, nor any copy, 

and by reason thereof a presumption arises that 

Joseph W. Spear destroyed the Will with intention 

to revoke it; that there is no clear, satisfactory 

and convincing evidence to overcome this presumption. 

"AND FROM THE FOREGOING FINDINGS OF FACT THE COURT 

CONCLUDES AS A MATTER OF LAW AS FOLLOWS: 

"I. That the purported Last Will and Testament of 

Joseph W. Spear has not been sufficiently proved 

in accordance with Section 91-1202, R.C.M. 1947. 

"11. That no evidence has been introduced which 

would overcome the rebuttable presumption that the 

decedent, Joseph W. Spear, destroyed his Last Will 

and Testament with intention to revoke it. 

"111. That the Petition to Probate the Lost Will 

of Joseph W. 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 

statutes of the State of Montana in such cases made 

and provided, " 
The only person who testified as to the contents of the 

will in a clear and distinct manner was attorney Ask who prepared the will 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, "I don't need it, I know the changes I want to make." 

Then, petitioner Owen testified as to the decedent's life style, 

and that losing or misplacing 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 

wxtness who testified as to the contents of the will in a clear 

and distinct manner, we examine the other two witnesses' testimony--Mrs. Bowers, former secretary to attorney Ask, 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 know who he was. 

"Q. Who was that? A. That was John Owen. 

"Q. How do you remember? A. He knew my daughter 

and I knew him through school and knew who he was." 

She did not recall witnessing 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 tell me whether 

or not you witnessed the will? A. Yes, quite often. 

"Q. And can you tell me whether or not you recall 

doing so on this occasion? A. No, I can't tell you 
if 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 I witnessed 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't know 

exactly how the conversation went. I know I was 

concerned because I had previously had bad luck with 

estates and I know he 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 administrator was? 

A. NO. 

"Q. Did he indicate that any other person was to 

receive any portion of the farm or his operation? 

A. No. As a matter of fact that is about as far 

as the conversation went, 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 requirements of section 

91-1202, R.C.M. 1947. This Court 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 distinct proof of the provisions of the will by at Least two credible witnesses. However, 

the Court did dist-inctly define the burden of proof in such a 

lost will situation. The evidence in the instant case simply is 
not sufficient to prove by clear and distinct proof by two credible witnesses the provisions of the lost will. 

Accordingly, the district court was correct and is 

affirmed . 

I' kaief Justice