Scheuer v. State , 31 Mont. 461 ( 1904 )

ME. COMMISSIONER CALLAWAY

prepared the opinion for the court.

Appeal by one Frederick W. Scheuer from a judgment denying the probate of an alleged lost will, and from an order overruling his motion for a new trial.

In the beginning we are met with the objection on the part of respondents that there is no record before this court upon which it may determine the matters presented by this appeal. This objection is based upon certain alleged fatal irregularities occurring in the preparation and settlement of the statement on motion for a new trial, which are made to appear by a bill of exceptions. This bill of exceptions is not made a part of the statement on motion for a new trial, and under the rule laid down in Beach v. Spokane Ranch & Water Co., 25 Mont. 367, 65 Pac. 106, we cannot consider it. (And see State ex rel. Beach v. District Court, 29 Mont. 265, 74 Pac. 498; Sweeney v. Great Falls & Canada Ry. Co., 11 Mont. 34, 27 Pac. 347; Arnold v. Sinclair, 12 Mont. 248, 29 Pac. 1124.) We shall therefore pass on to the merits of the controversy.

Charles Colbert died on February 14, 1901, in a cabin in Butte. Among his neighbors he was known as a wealthy, but miserly, old bachelor, and it may be said incidentally that sev.eral of these expected at his death to find themselves his beneficiaries. Shortly after his demise the clerk of the court received through the mails, or from an unknown source, an instrument purporting to be the last will and testament of Charles .Colbert. The beneficiaries therein named were William I. Lippincott and John Woolbeater. In due time thereafter Wool-beater filed his petition asking that the will be admitted to probate. Thereupon the state of Montana, through the attorney general, filed a protest against the probate of this alleged will, on the-ground thát it was a forgery. The state' alleged' that Colbert died intestate, leaving no relatives, and that his estate should, under the law, escheat to it. Shortly after this a petition was filed by appellant, Frederick Scheuer, alleging that Colbert made a will in 1896, in which he had named Scheuer and one Lillian E. Burton, now Lillian E. Eluke, his beneficiaries. It was further alleged that this will was in existence at the time of Colbert’s death, but had been destroyed or lost, and therefore could not be produced; that it was witnessed by two persons — John Woolbeater and one John Doe, whose true name and residence were unknown. Thereafter appellant filed an amended petition, asking that the lost will be admitted to probate, and in this petition stated that the subscribing witnesses to the will were John Woolbeater and one John Ackerman, both residents of Butte. Appellant and Lillian E. Eluke also filed objections to the will proposed by Woolbeater. The state of Montana likewise filed its objections against the so-called Scheuer or lost will,, alleging that no such will had ever been made by decedent. Woolbeater did not file any objections to the so-called Scheuer will. Many pleadings were interposed by the contending parties, but the foregoing seems to be sufficient to illustrate their contentions.

■ In order to. simplify the discussion, it will be well to ascertain first what are the essentials in proving a lost will. In every will case under our statute the rule of procedure is that the proponent of the will must first make out a prima facie case; that is to say, must make such proof $,s would entitle the will to probate in tbe absence of a contest. Then the contestant attacks the validity of the will, the proponent defends the same, and the contestant rebuts the testimony of the proponent. Doubtless the proponent may sur-rebut any new testimony adduced for the first time in'rebuttal (Maloney v. King, 30 Mont. 158, 76 Pac. 4), but the contestant has the right to open and close the case (Sections 2340-2346, Code of Civil Procedure; Farleigh v. Kelley, 28 Mont. 421, 72 Pac. 756, 63 L. R. A. 319). This disposes of one of appellant’s principal assignments of error.

The following sections of the Code of Civil Procedure are directly pertinent:

“Sec. 2370. Whenever any will is lost or destroyed the district court must take proof of the execution and validity thereof, and establish the same; notice to all persons interested being first given, as prescribed in regard to proofs of wills as in other cases. All the testimony given must be reduced to writing and signed by the witnesses.

“Sec. 2371. 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, or is shown to have been fraudulently destroyed in the lifetime of the testator, nor unless its provsions are clearly and distinctly proved by at least two credible witnesses.

“Sec. 2372. When a lost will is established, the provisions thereof must be distinctly stated and certified by the judge, under his hand and the seal of the court, and the certificate must be filed and recorded as other wills are filed and recorded, and letters testamentary or of administration, with the will annexed, must be issued thereon in the same manner as upon wills produced and duly proved. The testimony must be reduced to writing, signed, certified and filed as in other cases, and shall have the same effect as evidence as in-ovided in Section 2344.”

At the trial the state and appellant jointly fought the Wool-beater will, and in turn the state and Woolbeater fought the Scheuer will. After the evidence had beén closed as to the "Woolbeater will, tbe appellant undertook to make out a prima facie cp.se. It was incumbent upon him first to show affirmatively either that tbe will be proposed was in existence at the time of tbe death of Colbert, or-that it was fraudulently destroyed during Colbert’s lifetime. This be failed to do. lie did prove prima facie some pertinent facts; for instance, be adduced evidence tending to prove that Colbert executed a will in tbe. spring of 1896, wherein be and Lillian E. Burton were named as beneficiaries; that its contents were made known to at least three persons; that tbe will was seen about Christmas time in 1896, in August, 1899, about three weeks before Colbert’s death, and on the day before bis death. The witness who said be saw tbe will tbe day before Colbert died testified that be went to see Colbert upon important business, and conversed with him about it. Without proceeding further in detail, it is sufficient to say that the testimony of this witness, if true, shows beyond any question that at tbe time when tbe will was last seen it was in Colbert’s possession, and Colbert was then in tbe exercise of bis mental faculties. So far as tbe record discloses, it was never seen again. The better opinion is that under circumstances like tbe foregoing tbe presumption is that tbe testator, having possession of tbe will, and being mentally competent, himself destroyed tbe will animo revocandi. This being tbe case, tbe burden of proof was on tbe proponent appellant to overcome this presumption. (See note to Clark v. Turner, 38 L. R. A. 434, and cases cited.) And tbe proof required to overcome it must be clear, satisfactory and convincing.

An instructive case upon this subject is that of In re Kennedy's Will, 30 Misc. Rep. 1, 62 N. Y. Supp. 1011, in which tbe court said: “Tbe law of this state is well settled that, where no testamentary papers have been found after a careful and exhaustive search, tbe presumption is that tbe decedent herself destroyed tbe wiE with tbe intention of revoking it. (Collyer v. Collyer, 110 N. Y. 481, 18 N. E. 110, 6 Am. St. Rep. 405; Knapp v. Knapp, 10 N. Y. 276; Schultz v. Schultz, 35 N. Y. 653, 91 Am. Dec. 88; Hard v. Ashley, 88 Hun. 103, 34 N. Y. Supp. 583; In re Nichols, 40 Hun. 387; Betts v. Jackson, 6 Wend. 173.) And even in England, where the courts are not controlled, as here, by any positive statutory provisions, the presumption is the same, as shown by the following cases: Colvin v. Fraser, 2 Hagg. Ecc. 266; 3 Phillim. Ecc. 126, 462, 552; 1 Swab. & Tr. 32; 32 Law J. Prob. 202; 36 Law J. Prob. 7; 7 El. & Bl. 886. The only cases where this presumption does not exist will be found to be where the will is clearly shown not to have been in the possession of the testator at the time of his death. (In re Brechtee’s Estate, N. Y. Suit. Dec. 1893, p. 709; Hammersley v. Lockman, 2 Dem. Sur. 524; Schultz v. Schultz, 35 N. Y. 653, 91 Am. Dec. 88; In re Marsh, 45 Hun. 107.) ‘Legal presumptions are founded upon the experience and observation of distinguished jurists as to what is usually found to be the fact resulting from any given circumstances; and, the result being thus ascertained, whenever such circumstances occur, they are prima facie evidence of the fact presumed.’ (Betts v. Jackson, 6 Wend. 173.) In the last-named case the court says that it is a fact that for every will that is publicly destroyed five wills are secretly destroyed by the testator. The law will not speculate as to the motives which may have operated upon the testator’s mind, either in the direction of intestacy or otherwise. The presumption that the decedent destroyed the will animo revocandi is 'so strong as to stand in the place of positive proof. The principle that a state of things once shown to exist will be presumed to continue, and that, therefore, the court should presume that, as in the case of a lost deed, the will remained in existence down to the death of the testator, does not apply to the case of a will. Betts v. Jackson, supra. Bearing in mind, then, this .presumption of law, the will must be absolutely held by me to have been destroyed by the testatrix during her lifetime, unless positive and satisfactory proof to the contrary can be produced, sufficient to rebut and overcome that presumption.”

This case was affirmed by the Supreme Court of New York by a decision which is found in 53 App. Div. 105, 65 N. Y. Supp. 879, aud was again affirmed by tbe Court of Appeals in a decision found in 167 N. Y. 163, 60 N. E. 443, in which the court says: “The burden of proof was upon the proponents, and, the execution of the instruments having been shown, it was claimed that the court should presume that they were in existence at the timé of the death of the testatrix, unless the contrary was established. It is urged that in such cases the law presumes that a fact continuous in its character continues to exist until the contrary is proved, and that there is a presumption that an instrument shown to have been executed continues in existence. This rule, however, has no application to an ambulatory instrument like a will or codicil. Indeed, as to such an instrument the presumption is the other way. It appears that a careful search was made among the papers and effects of the deceased and neither the will nor the codicil could be found. No testamentary papers having been found after a careful and exhaustive search, the presumption arises that the decedent herself destroyed the will and codicil animo revocandi. (Betts v. Jackson, 6 Wend. 173; Collyer v. Collyer, 110 N. Y. 481, 18 N. E. 110, 6 Am. St. Rep. 405; Schultz v. Schultz, 35 N. Y. 653, 91 Am. Dec. 88; Knapp v. Knapp, 10 N. Y. 276; Hard v. Ashley, 88 Hun. 103, 34 N. Y. Supp. 583; Matter of Nichols, 40 Hun. 387.)”

There was no proof adduced that the will was fraudulently destroyed in the testator’s lifetime. Appellant attempted to show that it was fraudulently destroyed after Colbert’s death by Woolbeater and others, presumably for the purpose of showing that the-will was in existence at the time of Colbert’s death. Of course, such testimony would have been competent, but appellant failed to show anything of the kind. He alleged that Woolbeater was a witness to the lost will. Woolbeater denied this, and said he never saw Colbert sign a will at any time! Appellant produced witnesses who swore that Woolbeater, while attending the funeral, said he had the Scheuer or lost will in his pocket at the time. This Woolbeater denied in toto. Appellant apparently places much reliance upon the evidence of those who testify to these statements, bnt obviously this testimony could have but one effect — to impeach Woolbeater, or establish the fact that he had at different times made contradictory statements. It did not tend to prove even remotely that Woolbeater ever had possession of the so-called Scheuer will. It simply proved him unworthy of credit, and tended to show his statements, upon which appellant relied as establishing the existence of the will, to be unworthy of belief. No one ever saw the will in Woolbeater’s possession, so far as the testimony discloses.

Now, as we have heretofore seen, the statute is to the effect that the proponent of a lost will must prove either that the will was actually in existence at the time of the testator’s death, or that it is in existence in contemplation of law. If it was fraudulently destroyed in his lifetime, it is still so in existence. If appellant cannot prove that the will was in existence, either actually or in contemplation of the law, at the time Colbert died, it follows that his case cannot stand. In order to overcome the presumption of revocation which follows from the fact that the will was last seen in Colbert’s possession when he was in possession of his mental faculties, appellant introduced certain declarations of Colbert’s in conjunction with the testimony of witnesses who had seen the will, to the effect that Colbert said he was well satisfied with it. As this question is one of first impression in this court, we deem it necessary to examine it at some length. A respectable line of authorities holds that such declarations are competent as tending to show that, the will being in existence, and the testator being satisfied with it, it is not likely that he destroyed it; in other words, that he would be likely to follow out the inclinations which he had always expressed with respect to it. Nothing can be founded upon a more insecure basis. The will is, according to law, of an ambulatory character. No one except the testator has any rights in it whatsoever. No other person can have any rights in it until the testator is dead. He may change it at pleasure, and human experience has shown that wills are almost always destroyed secretly.

It seems to ns that the better line of authorities is to the effect that such declarations are not admissible at all unless they are a part of the res gestae, and are introduced simply to show the mental condition of the testator when he did the thing which is being inquired into; that is, either when he executed the will or when he destroyed it. If any other rule is followed, it may result in this: A testator makes a will in the presence of witnesses. It is executed with all the formalities of law. These witnesses remember its contents. Other witnesses see it. The testator has expressed himself at various times as being satisfied with it. Then he secretly destroys it. In order that such will be admitted to probate after the death of the testator, it would only be necessary to have these different witnesses'testify to the facts touching its execution, etc., and thus the intention of the testator as to the disposal of his property would be thwarted. It would impose upon a testator the necessity of revoking his will with as much publicity as that with which he created it, and the clause of the statute which provides that a testator may revoke his. will by destroying it might be made nugatory in a given instance.

In the case of Throckmorton v. Holt, 180 U. S. 552, 21 Sup. Ct. 474, 45 L. Ed. 663, the court, speaking through Mr. Justice Peckham, says: “After much reflection upon the subject, we are inclined to the opinion that not only is the weight of authority with the cases which exclude the evidence both before and after the execution, but the principles upon which our law of evidence is founded necessitate that exclusion. The declarations are purely hearsay, being merely unsworn declarations, and, when no part of the res gestae, are not within any of the recognized exceptions admitting evidence of that kind. Although in some of the cases the remark is made that declarations are admissible which tend to show the state of the affections of the deceased as a mental condition, yet they are generally stated in cases where the mental capacity of the deceased is the subject of the inquiry, and in those cases his declarations on that subject are just as likely to aid in answering the question as to mental capacity as those upon any other subject. But if the matter in issue be not the mental capacity of the deceased, then such unsworn declarations, as indicative of the state of his affections, are no more admissible than would be his unsworn declarations as to any other fact.

“When they are not a part of the res gestae, declarations of this nature are excluded, because they are unsworn, being hearsay only, and where they are claimed to be admissible on the ground that they are said to indicate the condition of mind of deceased with regard to his affections, they are still unsworn declarations, and they cannot be admitted if other unsworn declarations are excluded. In other words, there is no ground for an exception in favor of the admissibility of declarations of a deceased person as to the state of his affections, when the mental or testamentary capacity of the deceased is not in issue. * * * The law cannot, therefore, be regarded as settled in England that, even in the case of a lost will, declarations of the testator made after its execution are to be admitted as evidence of its contents. It is also proper to call attention to the fact that all the judges participating in the decision of Sugdens Case were entirely satisfied with the proof of the contents of the lost will, wholly aside from evidence of these declarations. While the case is not like the one before us, inasmuch as the inquiry here is not in regard to the contents of a lost will, yet it might, perhaps, be urged with some force that, if declarations of that kind were admissible, the evidence now before us is competent, and was properly admitted. We are, however, convinced that the true rule excludes evidence of the kind we are considering. We remain of the opinion that the declarations come within no exception to the law excluding hearsay evidence upon the trial of an action, and we think the exceptions should not be enlarged to admit the evidence. Where the issue is not one in regard to the mental capacity of the alleged testator to make a will, his declarations upon the subject cannot be said to be declarations made against interest, such as declarations made by an individual while in possession of property, in disparagement of his absolute ownership. Such evidence has been admitted as declarations against interest, or as characterizing possession, but the same declarations, made after a conveyance of the land, would be inadmissible as mere hearsay, and in no deg’ree as declarations against interest. Declarations made by an alleged testator before or after the date of the paper are not declarations against interest, because they can have no effect upon his interest. The will would not take effect until after his death, and before that time he could revoke it or make another, and it would still -be immaterial evidence even if he did neither. * * *

“No inference is generally more uncertain ox unreliable than that which is sought to be drawn upon the question of the genuineness of a will from the alleged condition of a testator’s mind towards relatives or others, as evidenced by his declarations. It is everyday experience that declarations of that nature are to the last degree unreliable as a basis for an inference as to probable testamentary disposition of property. Those who thought by reason of such declarations that they would certainly be remembered in the will of the testator are so freqeuently disappointed * * * that it would seem exceedingly unsafe to permit a jury to draw an inference based upon such evidence, relative to the genuine character of the instrument propounded as a will.”

Justice O’Brien, delivering the opinion, commenting on this case in Re Kennedy's Will, supra, said: “As I read that case, it is a decision of the highest court in the land that the declarations of the deceased, when not a part of the res gestae, are not admissible to prove the execution of a will or its revocation, or rebutting the presumption of revocation from the fact that no will is found after death.”

And in the case of In re Calkins, 112 Cal. 296, 44 Pac. 577, •the court said: “The respondent does not claim that there is any direct evidence in support of the verdict outside of the evidence of certain declarations of the testatrix. The evidence chiefly relied upon by him consists of certain declarations made by her, which were admitted in evidence over the objection of the proponent. To the extent that these declarations at or prior to the making of the Avill afforded any evidence bearing upon the state of the testatrix’s mind at the time of the execution of the will — her mental capacity, the condition of her mind toward the object of her bounty, as well as toward the persons by whom she Avas surrounded, and the correspondence of her acts Avith the feelings and purposes entertained by her at the time she executed the will — they were properly admitted, and were entitled to consideration by the jury; but to the extent that they purported to be declarations of the acts of others, or of her oavu acts, they were but matters of hearsay merely, whose truth rested in the veracity of the utterer, and upon Avhich there Avas no opportunity of cross-examination or of explanation by the party aaIio had uttered them, and Avere not entitled to any Aveight by the jury, and cannot be considered for the purpose of sustaining their verdict. (Shailer v. Bumstead, 99 Mass. 112; Potter v. Baldwin, 133 Mass. 427; Bush v. Bush, 87 Mo. 480; Jones v. Roberts, 37 Mo. App. 163; Waterman v. Whitney, 11 N. Y. 157, 62 Am. Dec. 71; Marx v. McGlynn, 88 N. Y. 357; Matter of Palmateer, 78 Hun. 43, 28 N. Y. Supp. 1062; Griffith v. Diffenderffer, 50 Md. 466.)” (Wells v. Wells, 144 Mo. 198, 45 S. W. 1095.)

It thus appears that appellant’s case, upon this phase of it, was Avholly insufficient to overcome the presumption of revocation.

One of the grounds stated by apjJellant in the notice of intention to move for a new trial Avas that of newly discovered evidence, which could not with reasonable diligence have been discoAnred and produced at the trial. In support of this ground he filed the affidavit of one John Kempfer, Avho stated, in substance, that he was a resident of Butte, and was acquainted Avith Charles Colbert for several years prior to his death; that Colbert had shown him a will, signed by Colbert as testator and by John Woolbeater and William Ackerman as Avitnesses, in which Frederick Scheuer and Lillian E. Burton were the beneficiaries; that affiant was familiar with its contents, substantially; that prior to the time of the death of Colbert affiant went from Butte to East Helena, where he remained until about the 8th of March, 1901, which was subsequent to the death of Colbert; that upon his return to Butte he occupied a house on the Emory placer claim, the property of Colbert, near a cabin occupied at that time by Woolbeater; that shortly after his return from East Helena, and after the date of his occupation of the house on the Emory placer, .Woolbeater called upon him, and in a conversation concerning the death of Colbert he asked Woolbeater what had become of the will made by Colbert during the year 1896, in which Frederick Scheuer and Lillie Burton were named as beneficiaries, and that thereupon Woolbeater withdrew the will from his pocket, and showed it to affiant, who thereupon read it over, and saw that it was the same paper which had been shown to him by Colbert; that it was in the same condition as when last shown to him by Colbert, and bore the genuine signature of Charles Colbert as testator and the names of John Wool-beater and William Ackerman as witnesses; that the said paper was dated in the year 1896, written with a pen and ink upon ordinary legal cap paper, and was the same paper that had been previously shown to him. He further deposed that he had never mentioned the matters contained in his affidavit to any one until after the trial of this action, and said that the paper was in existence at least three weeks or a month subsequent to the death of Colbert, being in the possession of Woolbeater, intact, at that time.

In support of this affidavit appellant filed an affidavit in which he deposed that he had discovered the evidence stated in the affidavit of Kempfer since the trial; that he was unable to discover it prior to the trial, “although he had inquired of different persons living in the vicinity, and of every person, who he thought had any knowledge of the facts or circumstances concerning the death of Colbert, as to whether the said will offered by him for probate was in existence at and subsequent to the date of Colbert’s death, but that he was unable to discover any other evidence than that which was offered upon the trial.”

Rehearing granted January 23, 1905. (Submitted March 14, 1905. Decided March 31, 1905.) New Trial — Newly Discovered Evidence — Affidavits—Insufficiency. 1. The affidavit of proponent in support of a motion for a new trial on the ground of newly discovered evidence, in proceedings to establish a lost will, averred that since the dismissal of his petition he had discovered a witness wlio would testify that he was shown the will by testator, and that he saw it after his death; that proponent was unable to discover the evidence prior to the trial, although he had inquired of different persons living in the vicinity, and every person whom he thought had any knowledge of the circumstances. The affidavit of the witness in question showed that prior to the death of testator he left the vicinity, but returned after testator’s death and occupied a house on testator’s property. It did not appear how the evidence was discovered, or that the witness had not lived in the vicinity from a few weeks after testator’s death to the time of the trial, jlelcl^ that there was not a sufficient showing of diligence on the part of the movant to entitle him to a new trial.

The affidavit shows that appellant has been diligent in procuring evidence — in fact, has done all in his power to procure it; that the new evidence offered was upon a material matter; that it ivas not cumulative, and not of an impeaching nature. Indeed, it was the very essential evidence which the appellant lacked at the trial, and by reason of the absence of which he was unable to proceed with his proof. In appellant’s affidavit he also averred that he could produce the said Kempfer as a witness upon the trial, and that Kempfer would testify to the facts alleged in his affidavit. We cannot say that the new evidence will not probably change the result if a new trial is granted. The witness Lillian Eluke, nee Lillian Burton, made an affidavit to the same effect as that of appellant. The state made no attempt to contradict these affidavits in any way. They stand admitted in the record, and import verity. With this uncontradicted showing upon a matter of the utmost materiality, we think the court abused its discretion in not granting the motion for a new trial.

Many other errors are assigned by appellant, but, in view of what has been said in the foregoing, we do not think it necessary to discuss them.

Eor the reasons given, we think the' judgment and order should be reversed, and the cause remanded for a new trial.

Per Curiam. — -For the reasons given in the foregoing o; union, the judgment and order are reversed, and the cause is remanded.

Reversed and remanded.