Proponents of Will v. Contestants of Will , 164 Mont. 94 ( 1974 )

No. 12583
I N THE SUPREME COURT OF THE STATE O M N A A
F OTN
1974
I N THE MATTER O THE ESTATE O
F F
WILLIAM BIRKELAND , Deceased.
Proponents of t h e W i l l ,
Appellants,
CONTESTANTS OF THE WILL,
Respondents.
Appeal from: D i s t r i c t Court o f t h e T h t r t e e n t h J u d i c i a l D i s t r i c t ,
Honorable R o b e r t H. Wilson, Judge p r e s i d i n g .
Counsel o f Record :
For A p p e l l a n t s :
J o n e s , Olsen and C h r i s t e n s e n , B i l l i n g s , Montana
Robert Zimrnerman a r g u e d , B i l l i n g s , Montana
F o r Respondents :
Church, H a r r i s , Johnson and W i l l i a m s , Great F a l l s ,
Montana
Robert P. Goff a r g u e d , and Douglas C. A l l e n a r g u e d ,
G r e a t F a l l s , Montana
Peder Moe, J r . , B i l l i n g s , Montana
Submitted: J a n u a r y 1 6 , 1974
Decided : FEB 2 6 1974
Mr. Justice Gene B. Daly delivered the Opinion of the Court.
Proponent and appellant Barbara M. Marshall, Public
Administrator of Carbon County, Montana, brings this appeal from
an order of the district court of Carbon County in favor of con-
testant and respondent, Thelmar Birkeland, refusing to admit into
probate a proposed will of William Birkeland, deceased.
William Birkeland, a resident of Carbon County, Montana,
died on August 28, 1972. His estate had an appraised value of
$81,882.34.
The proposed will was drafted by attorney William Blenkner
of Columbus, Montana, on or about October 26, 1970, at decedent's
request. Contrary to the advice of attorney Blenkner, decedent
did not execute the will in the attorney's office but rather had
the instrument mailed to him. The instrument contained an attes-
tation clause and, in a letter accompanying it, attorney Blenkner
provided instructions for its proper execution. Decedent apparent-
ly attempted to execute the will; however, the facts are undis-
puted that he did not follow the instructions. Decedent procured
the signatures of Thorvald Stene and Adolf Hovland on the attes-
tation clause of the will on separate occasions. On both occasions
he attempted to conceal the nature of the document from these
witnesses. It also appears that prior to obtaining these signatures,
decedent crossed out portions of the typewritten document.
Thorvald Stene testified:
"Q. When you were at Mr. Birkeland's house was
there anybody else there? A. No.
"Q. You were there by yourself? A. Nobody in
the room. I don't know. Missus could have been
in the yard or somewhere, I don't know, but she
wasn't in that room.
"Q. So it was just you and William Birkeland?
A. Yeah.
"Q. I see. Now when he brought this document to
you, what did he say? A. He told me, 'I got a
paper here I want--I like to have you sign.'
"Q. I see. Did he ever tell you what that
paper was? A. No.
"Q. I have just one more question. Mr. Stene,
when I was asking you questions prior to this
didn't you say that Mr. Birkeland's signature
may or may not have been on there? A, It could
have been, I don't know."
Adolf Hovland testified:
"Q. He didn't tell you what was in it, he didn't
tell you it was his will? A. No.
"Q. He gave you the impression it was none of
your business what it was? A.'.Thatlsright.
"Q. And so you didn't inquire further? A. No,
I didn't ask him, I just signed it.
"Q. Now you recall distinctly that Mr. Stenels
signature was on that document? A. Yeah.
"Q. Was there any other conversation with Mr.
Birkeland about this instrument other than what
we have already talked about in Court here today?
A. Oh, I just asked him if he figured this here was
okay.
"Q. And in those words? A. And he nodded his
head, yes.
"Q. Just you and Mr. Birkeland were alone together
at the time? A. Yes."
Attorney Blenkner testified the instrument in question
was brought to him by Martin Lofthus, the executor named therein.
However, after interviewing witnesses Stene and Hovland, Blenkner
declined to offer the instrument into probate.
At the conclusion of a full hearing, the district court
entered a finding of fact that the purported will was not exe-
cuted and attested in the manner required by section 91-107, R.C.M.
1947, and denied its admission into probate.
The issue before this Court is whether the district court
erred in refusing to admit the purported will into probate.
Section 91-107, R.C.M. 1947, provides:
"Written will, how to be executed. Every will,
other than a nuncupative will, must be in writing;
and every will, other than a holographic will,
and a nuncupative will, must be executed and
attested as follows:
"1. It must be subscribed at the end thereof
by the testator himself, or some person in his
presence and by his direction must subscribe his
name thereto;
"2. The subscription must be made in the presence
of the attesting witnesses, or be acknowledged by
the testator to them to have been made by him or
by his authority;
"3. The testator must, at the time of subscrib-
ing or acknowledging the same, declare to the
attesting witnesses that the instrument is his will;
and,
"4. There must be two attesting witnesses, each
of whom must sign his name as a witness, at the
end of the will, at the testator's request, and
in his presence."
Montana law provides that the right to dispose of property
by will is entirely statutory and at least a substantial, if
not an exact, compliance with the statutory requirements is
mandatory. Estate of Connelly, 138 Mont. 153, 355 P.2d 145; In
re Noyes' Estate, 40 Mont. 178, 105 P. 1013.
Appellant points out that Montana's statutory (sections
91-209 through 91-212, R.C.M. 1947) and public (In re swords'
Estate, 129 Mont. 165, 284 P.2d 674) policies favoring testacy
require that a liberal construction be given where possible to
effect the testator's wishes. Appellant urges that Hovland's
above quoted testimony demonstrates a "substantial compliance"
with subparagraphs 2 and 3 of section 91-107, R.C.M. 1947.
We agree with the "liberal construction" and "substantial com-
pliance" policies but we cannot agree with appellant's applica-
tion. Applying the "substantial compliance" concept to the degree
sought by appellant, under the facts of this case, would defeat
the very purpose of section 91-107, R.C.M. 1947. There must be
substantial compliance with the statute not compliance with a
s u b s t a n t i a l p o r t i o n of t h e s t a t u t e ,
The o n l y f a v o r a b l e e v i d e n c e produced by a p p e l l a n t was
t h e f a c t t h a t t h e document i t s e l f c o n t a i n e d a s t a n d a r d a t t e s t a -
t i o n c l a u s e r e c i t a l of p r o p e r e x e c u t i o n and a t t e s t a t i o n . Appel-
l a n t c o r r e c t l y c o n t e n d s t h a t t h e p r e s e n c e of an a t t e s t a t i o n c l a u s e
i n t h e r e g u l a r form p r e s e n t s a prima f a c i e c a s e of p r o p e r exe-
c u t i o n of t h e w i l l . However, a s i n I n re Swords' E s t a t e , 129
Mont. 165, 284 P.2d 674 and I n re Rudd's E s t a t e , 1 4 0 Mont. 1 7 0 ,
369 P.2d 526, t h e c o n t r a r y t e s t i m o n y of t h e a t t e s t i n g w i t n e s s e s
i s s u f f i c i e n t t o r e b u t t h e prima f a c i e c a s e and c r e a t e an i s s u e
f o r t h e t r i e r of f a c t . A p p e l l a n t r e l i e s h e a v i l y upon t h i s C o u r t
d e c i s i o n i n Swords. Understanding t h a t Swordswas d e c i d e d on e v i -
d e n t i a r y g r o u n d s , i t s h o u l d be n o t e d t h a t i n Swords t h e r e were
e v i d e n t i a r y c o n s i d e r a t i o n s p r e s e n t which a r e a b s e n t the instant
case. T h e r e , t h e t e s t a t r i x , h e r s e l f , M r s . Swords, was a n e x p e r -
i e n c e d l e g a l s e c r e t a r y who m e t i c u l o u s l y p r e p a r e d h e r own w i l l
and was f a m i l i a r w i t h t h e r e q u i s i t e s of p r o p e r e x e c u t i o n o f a
will. Under t h o s e c i r c u m s t a n c e s t h e c o u r t t h e r e , a s t r i e r o f t h e
f a c t , upon p r o p e r showing was e n t i t l e d t o h o l d t h a t t h e a t t e s t a -
t i o n c l a u s e p r e s e n t e d a prima f a c i e c a s e of due e x e c u t i o n and
prevailed over witnesses t o t h e contrary. The c o u r t a s t r i e r of
f a c t d e t e r m i n e s which f a c t s o f f e r e d on a c e r t a i n p o i n t a r e " s a t i s -
f a c t o r y a s evidence thereon".
Concerning t h i s C o u r t ' s s c o p e of r e v i e w , t h e C o u r t s a i d
i n I n r e Rudd's E s t a t e , 1 4 0 Mont. 1 7 0 , 1 7 6 , 369 P.2d 526:
"Also o u r i n q u i r y i n t o t h e e v i d e n c e i s l i m i t e d t o
whether t h e f i n d i n g s o f t h e t r i a l c o u r t a r e s u p p o r t -
a b l e when t h e e v i d e n c e i s viewed i n t h e l i g h t most
favorable t o t h e prevailing party. See Barcus v.
G a l b r e a t h , 122 Mont. 537, 207 P.2d 559."
The e v i d e n c e b e f o r e t h e d i s t r i c t c o u r t f u l l y s u p p o r t s i t s
f i n d i n g t h a t t h e p u r p o r t e d w i l l was n o t e x e c u t e d and a t t e s t e d i n
s u b s t a n t i a l compliance w i t h s e c t i o n 91-107, R.C.M. 1947.
The judgment and order of the district court are
affirmed.
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We concur:
.
Chief Justice