                             No. 95-312
          IN THE SUPREME COURT OF THE STATE OF MONTANA




IN RE THE ESTATE OF
JOSEPH S. FLYNN, Deceased.



APPEAL FROM:   District Court of the Eighth Judicial District,
               1n and for the County of Cascade,
               The Honorable Thomas M. McKittrick, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               John F. Lynch, Lynch & Chisholm, Great Falls,
               Montana
          For Respondent:
               Barbara Bell, Bell & Marra,    Great Falls, Montana


                             Submitted on Briefs:    November 2, 1995
                                          Decided:   November 30, 1995
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.

        Mary Flynn appeals an order of the Eighth Judicial District
Court,        Cascade County, admitting to formal probate the July I, 1994

will of Joseph Flynn and declaring null and void the June 14, I994

declaration of marriage between the two of them. We affirm in part

and reverse in part.

         The issues are:

         1. Did the District Court err in invalidating the marriage of

Joseph and Mary Flynn?

         2.     Is reversible error present in the court's findings of
fact?

         Joseph Flynn and Mary Flynn married in 1961.         Mary     brought

four daughters into the marriage, and four more children were born

to the couple.         The marriage was dissolved in 1988.      After    their

divorce,        Joseph and Mary remained close.

         In 1992, Joseph underwent surgery for colon cancer which had

spread to his liver.         By the spring of 1994, he was quite ill. On

May 31, 1994,         he drafted a will leaving his estate to Mary and

appointing her as personal representative of the estate.

        On June 14, 1994, while Joseph was temporarily in a nursing

home,     he and Mary signed a declaration of marriage.         When    Joseph

left the nursing home, Mary returned to his home with him.                 She

stayed only four days before she moved out again.

        Joseph's sister, Dorothy Speer,        then traveled from Glasgow,

Montana,        to care for him at his home.      After a few more days, he

agreed to return to the hospital and from there was transferred to

                                        2
a retirement home.         on July 1, 1994,    Joseph executed a will in
which he renounced his June 14,           1994 marriage to Mary and be-
queathed his estate to Dorothy

       Joseph Flynn died on July 17, 1994.        Mary initiated informal
probate proceedings under the May 31 will.             Dorothy   initiated

informal probate proceedings under the July 1 will.               The two

matters were consolidated for hearing.

       The court heard testimony from Mary and Dorothy, from three of

Joseph's children and one of his stepdaughters, from the hospital

chaplain and the nurse who witnessed the July 1 will, and from
Joseph's primary physician. After the hearing, the court concluded

that the July 1 will was the valid will of Joseph Flynn which

revoked both the May 31 will and the declaration of marriage

between Joseph Flynn and Mary Flynn.          The court appointed Dorothy

as personal representative and revoked its earlier order appointing

Mary as personal representative.          The court ordered that the July

1 will be admitted to formal probate and declared null and void the

declaration of marriage.       Mary appeals.

                                   ISSUE 1

       Did the District Court err in invalidating the marriage of

Joseph and Mary Flynn?

       Section 40-l-402, MCA,     sets forth the grounds upon which a

district court may declare a marriage invalid. At subsection (2),

t1xe   statute provides:

       A declaration of invalidity under subsections (1) (a)
       through (1) (c) may be sought by any of the following
       persons and must be commenced within the times specified,
       but in no event may a declaration of invaliditv be sousht

                                      3
       after the death of either party to the           marriaqeL.1
        [Emphasis added. 1

Dorothy argues that Joseph "soughtl'      to declare the marriage invalid

when he signed his July 1 will, while he and Mary were both still
living.

       The Commissioners' Note in the annotations to § 40-I-402, MCA,

comments :

       Subsection (b) L(Z)] states a general policy against
       declarations of invalidity after the death of either
       party to the marriage .
             .      .

                     [Tlhe use of the word "sought" rather than
       llcommencedll implies that the death of a party to the
       marriage at any time before the entry of final judgment
       would terminate a proceeding attacking the marriage.

We agree.        In this case, no legal action was commenced to declare

the marriage invalid until after Joseph's death.             We   conclude,

therefore,       that the declaration of invalidity was "sought" only

after Joseph died, in violation of the above statute.        We therefore

vacate that part of the judgment declaring invalid Joseph and Mary

Flynn's June 14, 1994 marriage.

                                   ISSUE 2

       Is reversible error present in the court's findings of fact?

       Findings are a recordation of the essential and determining

facts upon which the district court rested its conclusions of law.

In re Marriage of Barron (1978), 177 Mont. 161, 164, 580 P.2d 936,

938.      This Court's standard of review of findings of fact is

whether the findings are clearly erroneous.       Rule 52(a), M.R.Civ.P.

A finding is clearly erroneous if it is not supported by substan-

                                      4
tial    evidence,     if the court misapprehended the effect of the
evidence, or if a review of the record leaves this Court with the

definite and firm conviction that a mistake has been committed.

Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323,

820 P.2d 1285, 1287.

        The first finding challenged on appeal is Finding No. 5, which

reads in pertinent part:

        Dana Darko, decedent's step-daughter testified that she
        witnessed decedent's signature of [the May 311 will and
        she believed the decedent to be competent at that time.

Dana Darko was the husband of one of Flynn's stepdaughters.       He was

a witness to the May 31 will, but did not testify at the hearing.

However,    Melodic    Carleton, Flynn's daughter, did testify to the

substance contained in Finding No. 5.

        We will not reject as clearly erroneous a finding in which the

error is correctable.        In re Marriage of Turbes (19881, 234 Mont.

152, 159, 762 P.2d 237, 241. As discussed above, the court's error
in Finding No. 5 was in setting forth the name of the witness, not

in the substance of the finding.       Substantial evidence supports the

substance of the finding.         The error could have been corrected

through a motion to amend the judgment, but no such motion was

made.     Further, we conclude that the court did not misapprehend the

effect of the evidence and a review of the record does not leave us

with the definite and firm conviction that a substantive mistake

has been made.        We conclude that the error in Finding No. 5 is not

reversible error.



                                      5
       Mary next disputes Finding No. 7,                in which the court found

"Mendolynn    Walls testified that in her opinion, the decedent was
competent on June 14." As Mary points out, Mendolynn Walls did not

testify.     However, her sister Starnell Darko testified that she was

present at the June 14 marriage and that in her opinion Joseph was

"aware of the situation that was going on"                    and willing to be

remarried.      Again,     the error in setting forth the name of the

witness is correctable and does not affect the judgment. We

conclude it is not reversible error.

       Mary challenges as without support in the record the court's

statement in Finding No.            8 that     "[tlhe   rest of the family was

surprised by the Declaration of Marriage and did not know of it in

advance." The record includes the testimony of at least two family

members that they were surprised at the remarriage--Farren                 Flynn

and Melonnie Suek.        Finding No. 8 is not clearly erroneous.

       Mary next challenges part of Finding No. 10:              "When [Dorothy]

arrived, decedent's home was filthy, smelled strongly of urine and
decedent had not bathed in days."              Mary contends that Dorothy did

not so testify.

       Dorothy testified that when she arrived at Joseph's home on

June 26, his bedroom was "the awfulest thing I've ever seen."                She

testified that there was a garbage can and urinal near Joseph's

bed.     She believed he was using the urinal and then dumping the

contents    into    the   garbage   can.       She testified that Joseph was

incontinent,       that he was filthy, and that his hair was matted and

dirty.     She testified that it took her three to four hours to give


                                           6
Joseph a shower because he was so weak.            Finding No. 10 captures
the essence of her testimony.

        The court's Finding No. 13 was:

        JoAnn Thornberg testified that she has been an oncology
        nurse at Columbus Hospital for about 10 years.    She had
        met Mr. Flynn on previous hospitalizations.      She felt
        that at the time she witnessed the will of July 1 that
        decedent knew what he was doing and was competent.    She
        testified that she was with Mr. Flynn as much as possible
        as his family did not visit very often.     She testified
        that often terminal cancer patients can be competent at
        times throughout the day and incompetent at other times.

Mary points out that although JoAnn Thornberg testified that Joseph

knew what he was doing and was competent when he signed the July 1

will,     she also testified that the opinion of Joseph's treating

physician, Dr. Warr,         should be given more weight than her own

opinion.         Dr. Warr testified,   "I felt that they had made a big

mistake in saying that he was competent at that point."
        As the trier of fact, the District Court, not JoAnn Thornberg,

bore responsibility for deciding the amount of weight to be given

to the testimony of each witness.          Keebler v. Harding (19911, 247

Mont.     518,    523,   807 P.Zd 1354,    1357.    In addition to JoAnn

Thornberg,       Father Birkmaier also testified that he witnessed the

signing of the July 1 will and believed Joseph was competent at

that time.        We conclude Mary has demonstrated no error in Finding

No. 13.

        Finally, Mary contests the court's Finding No. 14:

        Father Birkmaier testified that he works at the Columbus
        Hospital and that he had talked to decedent before and
        after he witnessed the will. He believed that Mr. Flynn
        was competent at the time he witnessed the signing of the
        will on July 1.    The decedent stated at the time that
        leaving his property to his sister was the moral thing to

                                       7
        do because Dorothy Speer had cared for their sister, who
        had been severely injured in a car accident, for many
        years without compensation.

Mary points out that all of the facts in Finding No. 14 were not

contained within Father Birkmaier's        testimony.    Specifically,

Father Birkmaier testified that Joseph told him that leaving his

estate to Dorothy would be       "the moral and right thing to     do"

because Dorothy had "tak[enl      care of somebody else."      Dorothy
testified that the person she had cared for was a sister of hers

and JosephIs who had been seriously injured in a car accident in

1936.     In crafting Finding No. 14, the court tied together Father

Birkmaier's testimony and testimony by Dorothy.         In view of the

purpose of findings to record the essential and determining facts

upon which the court bases its decision, we conclude that the court

did not err in so doing.

        In summary,   although we have held that the District Court

erred in invalidating Mary and Joseph's declaration of marriage,

Mary has shown no reversible error in any of the challenged find-

ings.      We reverse the portion of the District Court's order

declaring null and void the June 14, 1994 declaration of marriage

between Joseph Flynn and Mary Flynn.     We affirm the portion of the

court's order admitting the July 1,      1994 will of Joseph Flynn to

formal probate and appointing Dorothy Speer as personal representa-

tive of the estate.     This cause is remanded for further proceedings

consistent with this Opinion.



                                            Chief Justice
We concur:
                                       November 30, 1995

                                  CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:


John F. Lynch
Lynch & Chisholm
P.O. Box 2265
Great Falls, MT 59403

Barbara Bell
Bell & Marra
303 Liberty Center
9 Third Street No.
Great Falls, MT 59401


                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STATE OF MONTANA
