Opinion
No. 8315.
Submitted November 17, 1942.
Decided March 5, 1943.
Wills — Contest — Mental Incompetency of Testator — Evidence — Physicians — Hypothetical Question — What Does not Constitute Invasion of Province of Jury — Instructions — Attestation Clause — Presumption Flowing from Proper Execution — New Trial — Newly Discovered Evidence — Proper Refusal — Costs Allowable out of Assets of Estate — When Allowance Proper — Attorneys' Fees of Unsuccessful Appellants Not Allowable. Wills — Contest — Incompetency of Testator — Evidence in Conflict — Question for Jury. 1. In a will contest case in which the contestants relied on the mental incompetency of the testator at the time the will was made while he was suffering from a streptococcous infection of the throat which rapidly spread throughout his system, progressively weakening his mental faculties, the question of fact, i.e. mental competency or incompetency, on which the evidence was in direct conflict, was for the jury's determination. Same — Mental Incompetency of Testator — Evidence — Competency of Physician to Testify. 2. A physician, who had been practicing medicine and surgery for forty-five years and during that time had experience with patients who were mentally deranged or weakened by disease, was competent to testify as to the mental condition of testator about a week before he died suffering from the ailment mentioned in the above paragraph, when he made the will. Same — Contest — Testimony of Nurse Attending Testator in Hospital — By What Testimony not Discredited. 3. The testimony of a nurse in the hospital in which testator was confined at the time he made the will in contest, and who signed the attestation clause without reading it or hearing it read and who was an entirely disinterested witness, may not be said to have been discredited thereby with relation as to what actually took place at the time the will was made. Same — Weight and Value of Testimony of Attorney Drawing Will. 4. Though the testimony of the attorney, who drew the contested will and attended to its execution, was entitled to high credence, its weight and value as evidence, as contrasted with that of the attending physician and other witnesses as to what occurred at the time of its making and the mental condition of the testator, was for the jury's determination. Same — Submission of Special Interrogatory to Jury as to Mental Competency of Testator — Finality of Finding of Jury. 5. Where the trial court submitted a special interrogatory to the jury relative to the competency or incompetency of a testator at the time he made a contested will, which found him incompetent, and upon review and in the exercise of its discretion the court adopted the finding, the judgment in favor of contestants will not be set aside on appeal where there was ample evidence to support it. Same — Hypothetical Question as to Mental Competency of Testator Propounded to Attending Physician — Admissibility of Answer in Evidence — When not Invasion of Province of Jury. 6. Where a physician who had attended testator during his last illness and to whom a hypothetical question was put as to the mental competency of the patient to make a will, testified that he (testator) was wholly incompetent on the day of its making, basing the answer on his own knowledge of the patient's then condition rather than upon the facts referred to in the question, the answer was a fact conclusion as to what was known to him and not inadmissible as invading the province of the jury which thereupon was called upon to determine therefrom and from other evidence in the case whether testator was competent or not. Same — Trial — Exclusion of Immaterial Writing from Evidence. 7. Exclusion of a writing referred to by a witness to refresh his memory as to when he made a visit to testator at the hospital where he was confined, having served its purpose and the transaction to which it related not having been involved in a will contest, held not error. Same — Instruction to Jury as to What Matters of Concern to Testator in Making Will — What not Improper. 8. It is proper for the district court in a will contest in its instructions to call attention of the jury to the matters that should be of concern to the testator in disposing of its property; hence an instruction that he must have an intelligent understanding of the person he desires to receive it and the capacity to recollect the nature of the claims of those who are excluded from participating in his bounty, was not improper as placing too much emphasis on the fact that the contestants, his only relatives, had some special claim to his bounty, to the exclusion of the proponents who were not related to him. Same — Refusal of Instruction as to Presumption flowing from Failure of Testator to Provide for Relatives — When not Error. 9. Where contestants of a will were nephews and nieces of testator, refusal of an instruction offered by contestees that an uncle is under no obligation to provide for such relatives and that failure to name them does not raise a presumption that they were forgotten, held not error, where an instruction was given that under the Montana law one need not leave his estate to his heirs or other kin and that a will which omits mention of relatives may nevertheless be valid. Same — Possible Effect of Exclusion of Lawful Heirs from Will. 10. The exclusion of lawful heirs from a will may properly be considered as an indication of lack of recollection, showing incompetence to make a will. Same — Subscription of Will by Testator — Significance of Statutory Requirement. 11. The statutory requirement that a will shall be subscribed by the testator means that the name must be written with intent in the testator that the instrument to which it is appended shall be his will and that his name so written shall be his own record of such intent; if such intent be absent, he, by writing his name thereon, does not subscribe the will as intended by the statute. Same — Attestation Clause — When Presumption of Due Execution of Will Flowing from Proper Clause No Longer Effective — Instruction. 12. Presumptions in the law of evidence are relied upon where there are no facts upon which a conclusion can be reached, and when facts appear satisfactory as evidence, presumptions may not then be used as a basis of conclusion; therefore where in a will contest the facts relative to the execution of the will, attacked on the ground of mental incompetency of testator, were shown, including the testimony of the subscribing witnesses, the presumption of due execution flowing from a proper attestation clause no longer plays any part in proving such execution, and refusal to give an instruction as to such presumption offered by contestees was not error. New Trial — Newly Discovered Evidence — Lack of Diligence and Cumulative Character of Such Evidence — Denial of Motion Proper. 13. Denial of a motion for new trial made on the ground of newly discovered evidence was not error where lack of diligence to make the evidence available at the trial was apparent, and where the alleged new evidence was either cumulative or too remote to have any value as evidence.
ON MOTION FOR REHEARING.
Wills — Contest — Unsuccessful Appellants — When Allowance of Costs Payable out of Assets of Estate Permissible. 14. Held, on application to the supreme court by the unsuccessful proponents of a will (appellants) for allowance of their costs as a charge against the estate involved, that while there is no specific statutory provision for such allowance, although there is such provision in a contest after admission of the will to probate (sec. 10047, Rev. Codes) such costs so payable may be allowed, by the district court or the supreme court on appeal, under section 10372, in cases where there is no specific provision therefor in the Probate Code, and therefore ordered that the costs be allowed as prayed. Same — Attorneys' Fees of Unsuccessful Appellants not Allowable as Against Estate Involved. 15. Attorney's fees are not allowable as costs under statutory provision for costs in ordinary litigation, it being only where provided for specially by statute or by agreement of the parties that such fees may be considered as an item of recovery incident to litigation; hence, in the absence of a law expressly or by necessary application authorizing allowance of such fees out of the assets of the decedent's estate to the unsuccessful proponents of a will to probate, the supreme court is without authority to order their allowance.
Appeal from District Court, Cascade County; H.H. Ewing, Judge.
Messrs. Emmett C. Angland, W.J. Tighe and E.J. Stromnes, for Appellants, submitted a brief; Mr. Angland and Mr. Stromnes argued the cause orally.
Mr. H.R. Eickemeyer and Mr. H. Leonard DeKalb, for Respondents, submitted a brief; Mr. DeKalb argued the cause orally.
At the outset we proceed upon the theory that the presumption is always against intestacy, (28 R.C.L. 189; In re Bragg's Estate, 106 Mont. 132, 76 P.2d 57), and it is the policy of courts to sustain a will if it is possible to do so, ( In re Bragg's Estate, 106 Mont. 132, 76 P.2d 57.) We also have in mind the ruling, laid down by this court so often, that unless there is substantial evidence tending to nullify a last will and testament, the court should not permit it to be set aside. ( In re Bielenberg's Estate, 86 Mont. 521; 284 P. 546; In re Silver's Estate, 98 Mont. 141; 38 P.2d 277; In re Cummings' Estate, 92 Mont. 185; 11 P.2d 968; In re Carroll's Estate, 196 P. 996, 59 Mont. 403; In re Benson's Estate, 110 Mont. 25, 98 P.2d 868.) It is the position of the appellants that there is no substantial evidence to sustain the findings of the jury and the judgment of the court.
The contestants in this case raised no question as to the due execution and attestation of the will by the deceased and the subscribing witnesses. There is a complete attestation clause and from this fact alone there is a presumption that the will was duly executed. ( In re Bragg's Estate, supra; In re Silver's Estate, supra.) Appellants here were denied the benefit of that presumption.
One of the factors controlling in an action to set aside a will is the naturalness of the provisions contained therein, that is, how far the provisions of the will depart from what would be natural has weight in determining whether the testator was mentally competent at the time of its execution. The importance of this element in an action to set aside a will has been pointed out by this court in almost every case that is reported. ( In re Cissel's Estate, 104 Mont. 306, 66 P.2d 779; Murphy v. Nett, 130 P. 451, 47 Mont. 38; Bancroft's Probate Practice, 1, sec. 211, p. 384; In re William's Estate, 52 Mont. 192; 156 P. 1087.) In this case the contestants are nephews and a niece of the half-blood. We submit that the children of a half-sister would not necessarily be close to the deceased, particularly where she was so much older than the deceased and in view of this, it should have been incumbent upon the contestants to establish a very close and friendly relationship with the testator before it could be said that they were to be considered the natural objects of his bounty. ( In re Cissel's Estate, supra.)
There is evidence to show that the testator was sick, but being even in a weakened condition physically is not sufficient to set aside a will. ( In re Hobbin's Estate, 41 Mont. 39, 108 P. 7; In re Benson's Estate, 110 Mont. 25, 98 P.2d 868; In re Bright's Estate, 89 Mont. 394, 300 P. 229; In re Sales' Estate, 108 Mont. 202, 89 P.2d 1043.) There is no mention in the doctor's or nurse's charts and records that the testator was ever in a state of coma or unconscious, (See In re Benson's Estate, 110 Mont. 25, 98 P.2d 868.)
The court erred in permitting Dr. Irwin to testify over objection in answer to a hypothetical question based on the mental competency necessary to make a will. This witness was one of the doctors who cared for the testator during his last illness and knew him for a period of one week prior to the time that the will in question was executed. The authorities on the limit to which the testator's physician may testify are far from uniform. In some states he is prohibited from testifying, in others the administrator or executor named in the will may waive the bar; in some the doctor is permitted to express an opinion as to the testator's mental competency. This court in the recent decision of In re Cissel's Estate, 104 Mont. 306, 66 P.2d 779, has pointed out that the opinion of the physician will be given weight dependent upon the facts and circumstances upon which the opinion is founded and that it is the province and duty of the jury to draw the inference of fact from the evidence before them regulated by the rules of law stated to them by the court, being assisted, but not superseded in that function, by the opinion of experts. For the purposes of the present argument, we can grant to the witness the right to express an opinion as to the mental competency of the testator due to his having been the attending physician. Upon his direct examination this witness made no pretense at giving any basis for his opinion that the testator was incompetent. He was asked a long hypothetical which question terminated after objection with the following: "I am asking him about mental capacity entirely. Able to make and execute a document with understanding such as the one in question." An examination of the hypothetical question will demonstrate that no attempt was made to enlighten the witness as to what might be required in the way of mental capacity in order to make and execute a last will and testament. The question was a misstatement of the facts and was in the nature of a question that would be asked of an expert who knew nothing about the testator and who was merely testifying from the facts given to him during the trial of the case. No attempt whatever was made to qualify Dr. Irwin as an expert on mental cases. His qualifications as a physician and surgeon were admitted.
The doctor had a right to give the jury a picture of the mental capacity of the testator, but to impose upon the jury his opinion and his conclusion was invading the province of the jury clearly as he was determining for the jury the very question before it.
The Supreme Court of California in this situation held: "The second part of Dr. Mortensen's opinion, that wherein he says that he does not believe testatrix was capable of making a will, has no probative value whatever, in the absence of a showing that this learned disciple of Aeculapius was acquainted with the law's criteria of testamentary capacity." ( In re Sexton's Estate, 251 P. 778, 199 Cal. 759.) In that case, as in this case, there is not a scintilla of evidence to indicate that the doctor had the faintest idea of what is the standard prescribed by law for the determination of the question of testamentary capacity.
This court has held that the abstract opinion of any witness, medical or any other profession, is not of any importance ( In re Cissel's Estate, supra.), and that it is the duty of the jury to determine the question before it, being assisted, but not superseded by an opinion of an expert. Even if we conceded in this case that Dr. Irwin was an expert on mental disorders, the question would still have been objectionable and the objection should have been sustained by the court.
The rule is well stated in 11 R.C.L. sec. 22, p. 594, as follows: "The testimony of expert witnesses, as well as of all others, is confined to matters of fact. It cannot be received if it amounts to a conclusion of law. Thus, an expert cannot be asked if the person in question was competent to make a deed or will, since that involves a legal opinion as to what constitutes such competency. (See, also, 20 Am. Jur., sec. 799, pp. 672, 673.)
The court erred in refusing to give the following instruction: "You are instructed that the evidence of the attesting witnesses to the will herein is entitled to great weight, and the evidence of the attorney who acted for the testator in preparing his will is entitled to more weight than that of any other subscribing witness, where such attorney appears as a subscribing witness."
While we do not find a case in which this court has expressly approved this instruction, yet we find that it has given considerable weight to the evidence of the attorney who drew the will in at least two cases: In re Miller's Estate, 37 Mont. 545, 97 P. 935, and In re Sales' Estate, 108 Mont. 202, 89 P.2d 1043, and the supreme court of California gives particular emphasis to the testimony of the attorney who drew the will in In re McDonough's Estate, 251 P. 916, 200 Cal. 57 and In re Cassarotti's Estate, 192 P. 1085, 184 Cal. 73. The rule in California Jurisprudence is stated as follows: "Where it appears that the execution of the propounded writing was supervised by a lawyer, the opinion of the latter that the deceased was of sound mind has peculiar probative force, being considered to outweigh the opinions of the physicians who base their conclusions upon the condition of the deceased at other times than that of execution, or who testify as experts.
While the rule is that the statements of an attesting witness who testifies adversely to the instrument are entitled to little weight and his evidence will be received with suspicion and the utmost caution, (26 Cal. Jur. 752; In re Motz's Estate, 69 P. 294, 136 Cal. 558, 79 A.L.R. 394, L.R.A. 1916C, p. 1218), yet, where the witness testifies in accordance with the attestation clause it is generally held that the testimony of attesting witnesses in support of the mental competency of the testator is entitled to special or greater weight as compared with the testimony of non-subscribing witnesses, (See cases collected in 123 A.L.R. 88, 93 A.L.R. 1049.)
This is an appeal from the judgment entered in a will contest tried with a jury. There were two grounds of contest, first, that the deceased, because of weakened mental condition resulting from illness, was not competent to make the will, and, second, that he was unduly influenced by others to make the will.
The case was submitted to the jury on two special interrogatories. In answer to the first the jury found the testator mentally incompetent to make the will, which made unnecessary any consideration of the second as to undue influence. The court adopted the jury's verdict and entered judgment thereon denying probate of the will. Proponents of the will moved for a new trial on the ground of insufficiency of the evidence to support the verdict, error in the trial of the case, and newly discovered evidence. The motion was denied. The appeal is from the judgment.
The illness from which Mickich was suffering at the time the will was made commenced as a throat ailment on May 13, 1941, a bad case of tonsillitis developing rapidly into streptococcus infection which spread into the blood stream and became general throughout his system. He was taken to the Columbus Hospital at Great Falls where he was under the care of doctors and nurses until the time of his death which occurred on May 27th. The will was made at the hospital on May 20th. There was no question of the seriousness of his condition from the time he was taken ill until his death, with pain and suffering and physical weakness resulting therefrom. Also there seems to have been no question but that his mental faculties were progressively weakened in the course of the illness. The question was as to what extent his mental capacity had been lowered, and whether, at the time he signed the will, his mental condition was such that he knew and understood what he was doing and was able to give thought to and make determination as to the disposition of his estate.
The instrument which was offered to probate has every appearance of regularity as a duly executed will. It bears the name of the testator as if regularly subscribed and has a full and complete attestation clause, signed by three witnesses — Mr. Tighe, the attorney who drew the will, and two nurses at the hospital where the will was made, Virginia Walker and Maxine Nisson. The will disposes of the whole estate, giving two-thirds thereof to Steve Mickich, a cousin of the second degree, and the remaining one-third divided equally between Mrs. Antonich, Walter Tuss and August Tuss, none of whom were related to the testator.
Mickich was a bachelor, fifty-three years old, of foreign birth, a Croatian, and had been in this country since about the time he was of age. At the time of his last illness and death he owned and operated a beer parlor at Black Eagle, near Great Falls. His estate was estimated by witnesses as of the value of approximately $30,000. He had only distant relatives and none of those in close association with him excepting Steve Mickich, of Anaconda. Upon first coming to Montana in 1915, Steve had befriended him when in circumstances of need and a close, friendly relationship had continued between them. Steve is the principal beneficiary named in the will. The other beneficiaries were close friends, August Tuss being an acquaintance of his boyhood days, and Walter Tuss, a son of August. Mrs. Antonich was the wife of a close acquaintance. The contestants are surviving nieces and nephews of the half blood who would take as heirs at law.
The principal witnesses for the contestants were Mrs. Virginia Walker, a nurse who attended the deceased throughout his last illness, and Dr. Irwin, the attending physician. They both testified that Mickich was a very sick man when he came to the hospital; that his illness progressed rapidly into more serious stages, with progressive weakening of both mind and body; and that at the time the will was made, on May 20th, he was overcome by illness to such extent as to be utterly helpless physically, with his mental faculties and sensibilities dulled to such extent that it was impossible to get any intelligent response to conversation or questions spoken to him. Several other witnesses testified to seeing Mickich on the day the will was made, and on days immediately preceding and following; that he was very sick and unable or not inclined to carry on conversation, and that they were unable to get any response on matters they undertook to discuss with him.
For the proponents of the will several witnesses testified to seeing Mickich on the day the will was made, and said he was very sick and did not talk much, was slow to respond when spoken to but did respond intelligently. Mr. Tighe, the attorney who drew the will and attended to its execution, said that he talked with Mickich immediately before the will was drawn; that Mickich then said that he wanted to make a will. Questioned as to the disposition he wished made of the estate, he first mentioned Steve Mickich, saying that he lived in Anaconda. Asked whether he wanted it all to go to Steve, he mentioned Frank Antonich and changed that to Frank Antonich's wife. Asked whether he wanted it all to go to them, he then mentioned Gus and Walter, and explained he meant August Tuss and his son Walter. When asked as to the division to be made, he said he wanted two-thirds to go to his cousin, Steve Mickich, and the rest of it to go to Mrs. Antonich and to the two Tusses in equal proportions. He said he wanted to name August Tuss as executor to serve without bond. Mr. Tighe said he had not known Mickich until he came to the hospital to prepare the will; that he had never had anything to do with his affairs until the interview then at the hospital.
Mrs. Walker, the nurse, was present when the will was made, and testifying for the contestants, she related what took place as follows: She said that Mr. Tighe, the attorney, came to the hospital about 7 in the evening on May 20th to see about making a will. After a half hour in the room with Mickich he called her in to assist, saying he could get no satisfactory response. She tried to talk with Mickich about the will but could get no expression from him. Unable to get any statement from him she and Mr. Tighe then suggested to him those to whom he might leave his property. His response to each such suggestion was "I guess so"; she stated that the will as made was in accordance with suggestions from them, and the only assent of Mickich thereto was "I guess so." She said that at no time in her hearing did Mickich say he wanted to make a will or how he wanted to dispose of any of his estate. She said that after the will was prepared, the portions thereof disposing of the property were read aloud to Mickich. It was laid before Mickich and with her assistance, guiding his hand, he wrote his name thereon without saying anything. Mrs. Nisson, another nurse, was then called in to act as a witness. There was difficulty in getting any request from Mickich that they witness the will. August Tuss was called in to assist. He told Mickich he must ask the witnesses to sign, that he must say "Yes" and he said "Yes." The three of them — Mr. Tighe, Mrs. Walker and Mrs. Nisson — then signed as witnesses.
Both Mrs. Walker and Mrs. Nisson testified that neither of them read the attestation clause, nor was it read to them.
The case so presented left a clear question of fact for [1] determination. The evidence on either side, if taken alone, was amply sufficient to sustain the contention it was sought to uphold. The witnesses were all positive in their statements and testified directly as to facts material to the case. The evidence on each side was substantial, with a direct conflict in its bearing on the question at issue.
In their attack on the contestants' case as made, appellants contend that neither the testimony of Dr. Irwin nor that of Mrs. Walker is entitled to full credence, leaving contestants with no substantial evidence to support the verdict and judgment. They contend, on the other hand, that the testimony of Mr. Tighe, the attorney, is entitled to more than ordinary weight, and, supported by other witnesses, it gave the proponents substantial proof of their contentions as against the lack of any substantial proof on behalf of the contestants. On that basis they specify error in the adoption of the verdict and the entry of judgment thereon. We see no merit in this contention.
As to the testimony of Dr. Irwin appellants say that he did [2] not qualify as an expert on mental disorder and that he was evasive of the question of the mental competency of the testator. We think Dr. Irwin was peculiarly well qualified to testify as to the mental competency of the deceased. In addition to his personal knowledge of the case, it was shown that he had had forty-five years of experience in the practice of medicine and surgery; and that in such general practice he had had experience with many patients who were mentally deranged and mentally weakened by disease. As to the character of his testimony, it was full and direct and to the point. If believed, it could have but one effect, i.e., to convince the jury of the mental incompetency of Mickich when the will was made.
As to the testimony of Mrs. Walker, the fact that she had [3] signed the attestation clause as a witness to the will is pointed out as bearing against the truth of her oral testimony. She testified that she did not read the attestation clause nor was it read to her nor in her presence before she signed, nor at any time thereafter until the matter came into litigation. Under those circumstances her signing the attestation clause should not discredit her testimony as to what actually took place. Furthermore, she was entirely disinterested and no reason was shown why she would be prone to falsify.
It is urged that the testimony of Mr. Tighe, the attorney, is [4] entitled to special consideration and should be given more weight than that of the ordinary witness, because of his years of experience in the legal profession and his high standing as an attorney of good repute. Counsel say that the verdict and judgment, if permitted to stand, will cast reflection on his good name. Mr. Tighe's reputation and standing were not questioned, nor was it at issue. He had been called in to draw a will and see to its execution. That he did in a professional manner and as best could be under the circumstances. He performed his function as a lawyer, not as an expert on mental disorder. What the result thereof would be if the mental competency of the testator should be questioned was not his responsibility. Where his testimony is in conflict with that of other witnesses it was for the jury to determine whom to believe. On the question of mental competency, apparently they believed the doctor as against the lawyer. The testimony of Mr. Tighe is entitled to high credence, but it was for the jury to determine its weight and value.
Upon the evidence presented it was for the jury to reach their [5] conclusion in answer to the question submitted by the special interrogatory. Their determination thereon was subject to review by the trial court. If it was manifestly against the weight of the evidence, the verdict should have been set aside. However, it was addressed to the sound discretion of that court, and if there is any support therefor found in the evidence, its determination thereon should not be disturbed on appeal. Here there was ample evidence to sustain the verdict and there can be no ground for disturbing the ruling as made by the trial judge. There was no error in the entry of judgment on the verdict.
Appellants contend that there was error in the presentation of [6] evidence which resulted in prejudice to their case. They set out two specifications of such error, first, in permitting Dr. Irwin to testify over objection in answer to a hypothetical question as to the mental competency of Mickich when the will was made; and, second, in excluding an exhibit offered in the examination of a witness testifying for the proponents of the will. We see no error prejudicial to the appellants under either of these specifications.
As to the testimony of Dr. Irwin on the mental competency of the deceased, the contention is made that the opinion called for would be an invasion of the province of the jury, attempting to substitute the opinion of the medical expert for the conclusion to be reached by the jury as to mental competency to make a will — the ultimate fact to be determined. We think there was ample foundation made in the record of the case showing Dr. Irwin to be peculiarly qualified to give his opinion as he did in answer to the question as it was propounded. He was the attending physician and had treated the patient from the time he was taken ill and until his death. He saw him on his round of calls at the hospital several times a day, including the day the will was made. He had testified as to the patient's condition, the seriousness of his illness and its effect on his mental condition. He had testified that on the 20th, "the man's mental condition was just out." He had, without objection, given his opinion, based on his treatment of the man and his observation of him from day to day, that when the will was made he did not have the mental competence to understand the transaction of making a will. He was then asked the following question: "Now, then, Doctor, would you consider, under the circumstances related — the testimony — that this man was qualified and competent to make a will, knowing his history as it is known?" The objection to the question was that in giving the opinion as called for, the doctor "would have to take into consideration the legal requirements of competency to make a will. The objection is not to the type of hypothetical question. It is to the question which requires that — this includes more than an opinion of the doctor in regard to his profession. It requires that he have knowledge of the legal requirements of a will." The objection was overruled and the doctor made the following answer: "I might state that I consider that Mr. Mickich was wholly incompetent at that time and had been since Sunday, and continued so until his death. That is about the only answer I can make to that." There was no objection made as to the answer given. It is clear that the opinion which the doctor expressed was based rather on his own knowledge of the condition of the man than upon the facts referred to in the hypothetical question. On cross-examination the doctor was taken over the same ground. He was asked the question, "Do you think he was wholly incompetent?" Answer: "From Sunday — Sunday evening he had a chill and high fever, and from that time on every time I visited him, he was wholly mentally incompetent." Further on cross-examination the doctor was questioned at great length regarding the case, the condition of the patient from the time the doctor was called to attend him and until the patient's death, the care and treatment given, the condition of the patient in the progressive stages of the development of the disease. There was extended cross-examination on the chart record of the case as showing the condition of the patient. Nothing different was developed by such cross-examination. It only tended to amplify the testimony given by the doctor on direct examination, showing more clearly the serious condition of the man and the weakened condition of his mental faculties.
The testimony of the doctor in answer to the question as put was clearly admissible. In no way was the province of the jury thereby invaded. He stated that he considered that "Mr. Mickich was wholly incompetent mentally at that time, and had been since Sunday, and continued so until his death." That was a fact conclusion arrived at from his knowledge of the case. It was for the jury to determine therefrom and from the other evidence in the case whether the man was mentally competent to make a will. The doctor clearly avoided by his answer the giving of his opinion as to whether the man was competent to make a will. True, his statement that the man was wholly mentally incompetent, would lead to that conclusion, but it was not the conclusion. He stated to the jury what to him was a known fact, but whether the man was competent to make a will was nevertheless for the jury to determine under the instructions from the court.
The other specification of error relates to the offer of an [7] exhibit in the examination of a witness, August Tuss, who was testifying in regard to a visit to the deceased at the hospital. He had called to see him about some business at the bank. He had with him on this visit a writing which had on that same day been prepared at the bank and which was dated as of the same day, May 24th. There was question as to the particular day the visit was made, and in testifying he produced the writing and referred to it to refresh his memory, and then testified as to the particular day on which the visit occurred. The writing was then offered in evidence. There was objection on the ground that it was incompetent, irrelevant and immaterial, and the objection was sustained. The exhibit had served its purpose. The transaction to which it related was not involved. Its introduction in evidence would have added nothing material to the case, and there was no error in its exclusion.
Error is specified on the giving of instructions to the jury. We have considered fully the questions raised thereby and find no ground for reversal therein. The instructions given adequately explained to the jury the question presented to them for determination and correctly stated the rules of law they must observe in considering the evidence and arriving at their verdict.
In instructing on mental competence the jury was told that the [8, 9] testator must have an "intelligent understanding of the disposition he desired to make of it [his property] and of the persons he desires shall receive his property, and the capacity to recollect and apprehend the nature of the claims of those who are excluded from participating in his bounty." Then, following that, the jury were told more specifically that "if the jury find, from all the evidence in this case that at the time the will in question was made, the testator had sufficient mental capacity to understand what he was about when he made it and to remember and appreciate the property he had for disposal and his relations toward the objects of his bounty, so as to judge for himself what he wished to do in the disposal of his property, this is sufficient mental capacity to enable him to make a valid will whether at the time his general health was good or not."
The instruction so given on mental competence is criticized by appellants as placing undue emphasis upon the consideration to be given by a testator to the objects of his bounty, leading the jury to believe that the contestants, relatives of testator, had some special claim thereon which must not be overlooked and which it was wrong to ignore. It is contended that the appellants were prejudiced thereby and it is urged as ground for reversal. On this point the appellants specify further error in the refusal of the court to instruct the jury specifically that "an uncle is under no obligation to provide for his nephews or nieces, either when living or by will, and failure to name them, or any of them in the will, does not, under the law, raise the presumption that they were forgotten." Instead of the instruction so offered the court gave the following statement of the law, of general application: "Under the laws of Montana one is under no legal obligation to leave his estate at his death to his heirs or other kin and the fact that a will omits mention of relatives, it may nonetheless be valid and entitled to probate."
We see no merit in either of these points of error specified. It was proper to call the jury's attention to the matters that should be of concern to a testator in disposing of his property by will. Beneficiaries must be named and the objects of his bounty are always a matter that the testator must give consideration to. The exclusion of lawful heirs may properly be considered as an indication of lack of recollection, showing incompetence to make a will. Under the facts in this case, showing none but distant relatives, and none of those omitted having been of close association with the testator, it was not a matter of serious importance. However, we do not believe the point was unduly stressed, especially in view of the instruction that "a will which omits mention of relatives * * * may nonetheless be valid and entitled to probate."
Appellants offered an instruction upon the effect to be given [10-12] to a complete attestation clause as giving rise to a presumption that the will has been duly executed. The instruction offered was as follows: "The attestation clause which appears upon the will of the deceased in this case raises a presumption that the will has been duly executed."
The effect which may be given to an attestation clause is discussed in a comparatively recent decision of this court, in In re Bragg's Estate, 106 Mont. 132, 76 P.2d 57, 62. The court therein said that it has "evidentiary value" in the absence of proof as to what transpired in the execution of the will, as where the attesting witnesses cannot be produced, and further, that it "raises a presumption of the due execution of a will if there is no contest as to the genuineness of the signatures of the witnesses, or that of the testator, or after these signatures are proved to be genuine." In the instant case there was proof as to what transpired, and the due execution of the will was vigorously contested on the ground that the testator was not mentally competent to form any intent in connection with the act as done.
Our statute, (sec. 6980, Rev. Codes) requires that the will be subscribed by the testator. That requirement means more than that the name shall be written. It must be written with the intent of the testator that the instrument to which it is appended shall be his will and that his name so written shall be his own record of such intent. If such intent be absent, by writing his name thereon he does not subscribe the will within the meaning of the statute. To form such intent the testator must have the necessary mental competency therefor. If he is lacking in that respect, no intent can be formed, and the will then will not have been executed by him.
In the instant case the whole question was of the mental competency of the testator to make the will. If he was incompetent, he did not execute the will even though he wrote his name thereon, giving the appearance of it being subscribed by him. The appearance of regularity of execution in the instrument itself would be of no avail.
Presumptions are relied upon when there are no facts upon which a conclusion may be reached. When facts appear, satisfactory as evidence, presumptions may not then be used as a basis of conclusion. Here we have the facts of what occurred about the execution of the will, including the testimony of the three attesting witnesses. From these facts, which are the probative facts, and from the facts alone, the ultimate fact as to the due execution must be determined. Presumption can play no part in that.
It is for the court to say whether the proof offered upon a certain point is satisfactory as evidence thereon. Here the court in refusing the instruction offered must have determined that the proof produced was satisfactory as evidence, and held the jury to make its determination thereon unaided by presumption. There was ample evidence to sustain the court therein. And with the further instruction that the burden of proof was upon contestants, the proponents of the will were amply protected. There was no error in the refusal of the instruction offered.
The motion for a new trial was properly denied. As to error in the trial and insufficiency of the evidence, upon our view of the case as already stated, there is no basis therein for a new trial.
As to newly discovered evidence, which was urged as additional [13] ground, there was no sufficient showing. There was lack of diligence, the exercise of which should have made the evidence available at the trial. Also the evidence proposed would all be cumulative. The testimony of the one witness would be to show intelligent response by the testator in following directions as to breathing in the taking of an X-ray picture of him the day the will was made. The testimony of the other proposed witness would be to show statements made to the witness by testator prior to his illness indicating his feeling of consideration for the welfare of those named as beneficiaries in his will and a feeling of obligation to them, especially Steve Mickich as to whom he had expressed the thought he would want him to have his business at Black Eagle if he were gone. All these conversations took place months before, the most recent one being at least a month before the illness. In its showing of close, friendly relations it was all cumulative, and as to expression of his will with respect to the disposition of his estate, it was too indefinite and too remote to have any value as evidence.
The case having been regularly tried, and finding no error in any of the proceedings therein, the judgment is affirmed.
MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICES ERICKSON and MORRIS concur.
On Motion for Rehearing.
By their petition for rehearing appellants ask that the [14] opinion as already rendered be modified so as not to impose costs against them, and to allow their costs and attorneys' fees on appeal as a charge against the estate. Respondents have filed objection that such provision for payment of costs and attorneys' fees is not justified by the facts and the law controlling.
Nothing was said about the matter by either side in the presentation of the appeal, and without any order of the court appellants would be subject to payment of respondents costs. However, it is matter for consideration by the court, and is properly before us by the petition as filed.
The contest was defended in good faith. The will had every appearance of regularity, both in its dispositional provisions and its execution. The only question was whether it represented the free will of the testator made while his mental faculties were competent to form the intent necessary thereto. The question arose regularly in the proceeding for probate and the litigation thereof was necessary to a correct determination of the distribution of the estate. There were law questions of sufficient importance, and with some uncertainty therein, so it cannot be said but that the appeal from the adverse judgment in the court below was prosecuted in good faith.
There is no specific provision by statute for allowance of costs, nor of attorneys' fees, to an unsuccessful proponent of a will, where the contest arises in the proceeding for its admission to probate. Section 10047, Revised Codes, provides for such allowance of costs out of the property of the decedent, in the discretion of the court, in a contest of a will after its admission to probate. Had the Mickich will been admitted to probate, and the contest had thereafter arisen, allowance of costs to the contestee would then have been proper under section 10047, as was done in In re Carroll's Estate, 59 Mont. 403, 196 P. 996. However, there is general provision in section 10372, Revised Codes, for allowance of costs in proceedings in probate, covering cases for which there is no specific provision therefor. That section provides that "when it is not otherwise prescribed in sections 10018 to 10464, the district court, or supreme court on appeal, may, in its discretion, order costs to be paid by any party to the proceedings, or out of the assets of the estate, as justice may require. * * *" The proceeding here is such as is provided for in the Probate Code and included within the sections referred to in section 10372. The costs in question, therefore, may, in the discretion of the court, be allowed out of the assets of the estate. ( In re Bielenberg's Estate, 86 Mont. 521, 284 P. 546.)
As to attorney's fees, there is no express provision by statute for allowance thereof in a proceeding such as this. It was done in the Bielenberg Case. Attorneys' fees to the unsuccessful proponents of the will, for services rendered in the prosecution of the appeal, were allowed as costs payable from the assets of the estate. The Bielenberg decision is commented on in the later case of In re Baxter's Estate, 94 Mont. 257, 22 P.2d 182, the court saying that the propriety of such allowance as part of the costs was really not therein decided, not having been squarely put before the court. In the proceeding below such an allowance had been made, on agreement of the parties, for services of proponents' attorneys therein rendered, and in the proceedings on appeal the matter was presented in such a way as to give the impression that counsel would be content with the appellate court following the agreed disposition of the matter in the court below as a just disposition of the question in its relation to the proceeding on appeal. At least that is the view expressed in the Baxter Case.
In the case of In re Hauge's Estate, 92 Mont. 36, 9 P.2d 1065, also referred to in the Baxter Case as not decisive of the question, attorneys' fees were allowed an unsuccessful litigant in a proceeding to determine the qualifications of the beneficiary named in the will to take as a beneficiary. The court, in its opinion, bases the allowance on section 10372. The proceeding in that case was under Chapter 139 for the Code of Civil Procedure, which provides for special proceedings to determine heirship. (Secs. 10324, 10325 and 10326, Rev. Codes.) We find therein provision for the cost of such proceeding, section 10326 providing that "the cost of the proceedings under this chapter shall be apportioned in the discretion of the court or judge." That provision — regarding the word "cost" as more comprehensive than the word "costs" which has limited statutory definition — though not referred to, might be considered as enlarging the scope of allowance beyond the items of costs specified in the statute of general application, (sec. 9802, Rev. Codes), justifying the inclusion of attorneys' fees as costs in such special proceeding.
As it appears to us, the question of allowance of attorneys' fees in will contests has not been clearly determined by the decisions of this court, and this now seems to be the time "when it is squarely presented and necessary to a decision." ( In re Baxter's Estate, supra [ 94 Mont. 257, 22 P.2d 187].)
It is well settled law in this state that attorneys' fees are [15] not allowed as costs under statutory provisions for costs in ordinary litigation. It is only where provided for specially by statute, or by agreement of the parties, that attorneys' fees may be considered at all as an item of recovery incident to litigation. ( Smith v. Fergus County, 98 Mont. 377, 39 P.2d 193; Bovee v. Helland, 52 Mont. 151, 156 P. 416.) In the Bovee Case, attorneys' fees were allowed as costs, but because the parties had agreed it should be so.
To get away from this general rule in any case, and where we must look to the law for the authority, we must find in the statute law special provision, expressly or by implication authorizing the allowance. We find no such provision in the law governing the proceeding in this case. We are therefore without authority to allow attorneys' fees even though our discretion might otherwise prompt us thereto.
The costs incurred by appellants in the prosecution of the appeal are allowed out of the assets of the estate. Attorney's fees are not allowed. No costs are imposed as against the appellants.
The decision as heretofore rendered is modified with the addition of the foregoing, and the petition for rehearing is denied.
MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICES ERICKSON and MORRIS concur.