          \   I N THE SUPREMF: COURT OF THE STATE OF M N A A
                                                      O T N



                                      No.     14221                 nr     -


I N THE MATTER OF THE ESTATE OF

ELLA D.       PATTEN, Deceased.
                                                                -    L .




                                       O R D E R


PER CURIAM:

              The a b o v e o p i n i o n , d e c i d e d December 2 7 , 1978 i s amended:

              On p a g e 6 , l i n e 6 f r o m t h e t o p o f t h e p a g e , t h e name

"Donald" s h o u l d b e c h a n g e d t o " R o b e r t L.".

              T h i s amendment i s made nunc p r o t u n c t o c o r r e c t l y

r e f l e c t what w a s d e c i d e d by t h e C o u r t o n t h a t d a t e i n t h i s

opinion.

              DATED t h i s          day o f F e b r u a r y , 1979.




                                                              Justices
                                  No. 14221
                 IN THE SUPREME COURT OF THE STATE OF MONTANA

                                      1978


IN THE ImTI!m OF THE ESTATE OF
ELLA D. P =
         A,     Deceased.




Appeal frm: District Court of the Ninth Judicial District,
            Honorable H William Coder, Judge presiding.
                       .
Counsel of Record:
    For Appellant:
          Church, Harris, Johnson and Williams, Great Falls, Wntana
          R Keith Strong argued, Great Falls, Wntana
           .
   For Respondent:
         Alexander, Kuenning, Miller and Uqrin, Great Falls, Wntana
         Edward Alexander argued, Great Falls, Wntana


                                         Suhitted: November 17, 1978
                                             Decided:   3EC 2 - 1$E
Filed:   2 i.   -,   ~d$
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
           This is an appeal from the granting of summary judgment
by the District Court, Pondera County, denying admission to
probate of a copy of the purported Last Will and Testament of
Ella D. Patten, deceased.
           Ella D. Patten died September 14, 1973.   Her heirs are
her two sons:     Donald Patten, proponent and appellant, and Robert
Patten, contestant and respondent.
           The parties to this proceeding were previously before
this Court litigating the validity of another alleged will of
Ella D. Patten.     Patten v. Patten (1976), 171Mont. 399, 558 P.2d
659, 33 St.Rep. 1328.     We held then that an alleged will of the
deceased, made in 1970, could not be admitted to probate because
it was not properly executed.
           The copy of the will before us now was executed on Novem-
ber 25, 1968.     The validity of the execution of this will is not
in dispute.     When the will was executed, the original was given
to Ella D. Patten and a copy was retained by the attorneys who
drew the will.     At decedent's death, the original could not be
found.     The copy was presented for probate.
           Both wills left the bulk of decedent's estate, approxi-
mately $200,000, to Donald Patten.    There are some differences
between the wills.     In the 1968 will, Robert Patten was named
executor of the estate.     In the 1970 will, this appointment was
deleted.     The 1970 will omits some specific bequests which were
in the 1968 will.     The remaining paragraphs in the wills are
almost identical in language and in form.
           After our decision in Patten v. Patten, supra, Robert
Patten petitioned the District Court for a determination that
decedent died intestate.     In response to this petition, Donald
Patten requested the court to admit a copy of the 1968 will to
probate.     Discovery then was commenced by both sides.   On the
basis of this discovery, Robert Patten moved the court for
summary judgment on the grounds that the copy of the 1968 will
was not entitled to probate.   Following a hearing on this
motion, the District Court, on January 4, 1978, entered an order
and judgment granting Robert Patten's motion.     Donald Patten
appeals from this order and judgment.
        On appeal, appellant raises these issues:
        1.   Does Montana law recognize the doctrine of dependent
relative revocation, and, if so, is it applicable in this case?
        2.   Does the Montana Uniform Probate Code, Sections 91A-
1-101, et seq., R.C.M.   1947, apply in this case where the dece-
dent died prior to the effective date of the Code?
        3.   When the doctrine of dependent relative revocation
is applied, what is the procedure and proof necessary to allow
probate of a lost or destroyed will?
        The principal issue in this appeal is the District Court's
refusal to apply the doctrine of dependent relative revocation
and admit the copy of the 1968 will to probate.    This is a case
of first impression in Montana.   We have not previously deter-
mined if the doctrine of dependent relative revocation is a part
of Montana law.   The doctrine has never been applied in this
jurisdiction.
        The doctrine of dependent relative revocation comes from
the common law.   The doctrine has been outlined in this manner:
        "Under what has been termed the doctrine of
        'dependent relative revocation,' if a testator,
        having made a will and desiring to make a new one,
        cancels the first will preparatory to making the
        second and thereafter fails lawfully to execute
        the same or make therein an invalid disposition
        of his property, it will be presumed that he
        preferred the old will to an intestacy, and the old
        will is not revoked. The doctrine is said to be
        one of presumed intention, it being presumed that
        cancelation or destruction of the old will was in-
        tended to be dependent upon making of a new one as
        a substitute for the old one. If the cancelation
        of the old will and the making of the new one were
        were parts of one scheme, and the revocation
        of the old will was so related to the making
        of the new as to be dependent upon it, then if
        the new will be not made, or if made is invalid
        for any reason, the old kill, though canceled,
        should be given effect, if its contents can be
        ascertained in any legal manner." Thompson on
        Wills 8168, p. 262.
        The doctrine is applied with caution.     The mere fact that
a testator made a new will, which failed of effect, will not of
itself prevent the destruction of an earlier will from operating
as a revocation.   The doctrine can only apply where there is a
clear intent of the testator that the revocation of the old is
conditional upon the validity of the new will.     95 C.J.S. Wills
5267, p. 37.   For the doctrine to apply, the new will must also
not have changed the testamentary purpose of the old will and
essentially repeated the same dispositive plans such that it is
clear that the first will is revoked only because the second
duplicated its purpose.    95 C.J.S. Wills 8267, p. 37.   Thus,
while the doctrine may be widely recognized, it is narrowly applied.
        We hold that the doctrine of dependent relative revocation
can be applied under Montana law.     We have found no statutes or
court decisions either prior to or subsequent to the enactment of
the Montana Uniform Probate Code precluding the application of
this doctrine in this jurisdiction.     However, while holding that
the doctrine can be applied under our law, we decline to apply
the doctrine in this case.
        In deciding whether to apply the doctrine in a given case,
the testator's "intent" is the controlling factor.     The testator
must intend that the destruction of the old will is dependent upon
the validity of the new will.     Thompson on Wills, supra.   Evidence
of this intent cannot be left to speculation, supposition, con-
jecture or possibility.    The condition that revocation of a will
is based upon the validity of the new will must be proved by sub-
stantial evidence of probative value.     Roberts v. Fisher (1952),
230 Ind. 667, 105 N.E.2d   595.   A showing of immediate intent to

                             - 4 -
make a new will and of conditional destruction are required to
re-establish a destroyed will under the theory of dependent
relative revocation.       In re Estate of Hall (1972), 7 Wash.App.
341, 499 P.2d 912.        In Hall, the court stated that to prove this
intent the proponents of the revoked will must show that the
new will was executed concurrently with or shortly after the
destruction of the old will and both wills must be similar in
content.    In the present case, Donald Patten, the proponent of
the copy of the 1968 will, has not proven that decedent intended
the destruction of the 1968 will to depend upon the validity of
the 1970 will.
          The original of the 1968 will was given to Ella D. Patten
after it was executed.         At her death, it could not be found.
Under Montana law, a will, last seen in the possession of a testa-
tor, which cannot be found after a careful and exhaustive search
following death is presumed to have been destroyed by the testa-
tor with the intent of revoking it.         Matter of Estate of Hartman

(19771,        Mont   .    ,   563 P.2d 569, 33 St.Rep. 285; In re Estate
of Una M. Newman (1974), 164 Mont. 15, 518 P.2d 800; In re Colbert's
Estate (1904), 31 Mont. 461, 78 P. 971.         This presumption that
decedent destroyed the 1968 will with the intent to revoke it
must apply in this case.         No one knows when the decedent destroyed
her will or how she did it.         The record does not show that the
1970 will was executed concurrently or shortly after the destruc-
tion of the 1968 will.
          While the content of both wills is similar in some respects,
the dissimilarities are such that they reveal decedent's revocation
of the 1968 will was not conditioned on the validity of the 1970
will.   In the 1968 will, decedent bequeathed $5,000 and $2,500
to her grandchildren, the son and daughter of Robert Patten.          In
the 1970 will, Donald Patten's name was written in by pen and ink
as executor.    In the 1968 will, Robert Patten was the named
executor.     These differences in the wills show that decedent
may not have intended the same dispositive plan.
           Here, the evidence that decedent intended the revocation
of the 1968 will to depend upon the validity of the 1970 will
is merely conjecture and speculation.    As that is the case, the
District Court was correct in granting summary judgment to Doned
Patten.     The doctrine of dependent relative revocation can only
be applied where the evidence of the testator's intent is clear
and convincing.     Such is not the case here.
           In a similar factual situation, the Illinois Supreme
Court refused to apply the doctrine.     In re Moo's Estate (19531,
414 Ill. 54, 110 N.E.2d 194.     In Moo's Estate, the original will
of the decedent could not be found after his death and the pre-
sumption of revocation arose.     There, like here, a copy of the
will alleged to have been lost was presented to the court for
probate.     Admission of the copy of the will to probate was denied.
The court holding that, where the evidence was insufficient to
overcome the presumption of revocation, the doctrine of dependent
relative revocation had no application in absence of evidence
that the revocation of the old will depended upon the efficacy
of the new will.     Here, we have no evidence that the revocation
of the 1968 will depended upon the validity of the 1970 will.
The doctrine of dependent relative revocation has no application
under these circumstances.
           Having held that the doctrine of dependent relative revo-
cation should not be applied in this case, we can find no merit
in discussing the other issues raised in this appeal.     Determin-
ation of those issues would not affect the outcome of this appeal.
           Judgment affirmed.



                                          Chief Justice
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 Justices
