Brensinger v. Home Mission Society of German Lutheran Church

38 P. 547, 15 Mont. 117, 1894 Mont. LEXIS 100

• Court: Montana Supreme Court
• Decided: November 19, 1894
• Status: Published

Opinion

De Witt, J.

— There was no reason why Brensinger, the residuary legatee under the will, should object to the probate thereof. The will was in his favor, and he took the whole estate after the payment of the few small legacies. No objection to the will as a whole appears, or has ever been suggested. It is true that it did contain one item which was void under the statute (Probate Practice Act, § 473). The bequest to the Home Mission Society was made less than thirty days before the death of the testator, and was absolutely void. The amount of this bequest went, under the statute, to the residuary legatee, Brensinger. Nothing that Brensinger could do or leave undone could give life to the bequest, which was void ah initio. Because the will contained one such void item, easily separable from the rest of the will, was not ground to attack a will which was otherwise valid. The only void item simply disappeared from the will as a bequest, and fell into the residue of the estate, as the statute requires.

Appellant’s claim that Brensinger is attacking the will and claiming under it at the same time is wholly untenable. It is true that he does claim under the will, and it is also true that he does not attack it. He simply asks that the court obey the statute, and hold that the one bequest is void, as the law declares it shall be.

The judgment of the district court is affirmed.

Affirmed.

Pemberton, C. J., and Harwood, J., concur.