upon conflicting evidence. We are concluded by them. If the evidence had been submitted to a jury, either party having the right to demand a trial by jury (Rev. Codes, § 7397), the verdict would have been conclusive. That the findings were made by the court does not change the rule. While the testimony of Fenton and Klamer might furnish a basis for the conclusion that Conant heard the will read and heard Fenton call Klamer and request him to join in the attestation, and that for this reason the request and publication were sufficient, because it appears from their testimony that Noyes signed in his presence after this occurred, yet the fact remains, if Conant's testimony is to be taken as true-and we must assume that it was so taken-that he did not see Noyes sign, did not see his signature, was not informed even by Fenton that the paper was a will, and did not definitely learn the fact that Noyes had made a will until after his death, nearly two years later. It may well be said that Conant's testimony is not satisfactory, in that in some important particulars he is not positive and definite in his statements; nevertheless the credit to be given it was a question exclusively within the province of the trial court to determine, and its determination thereon is conclusive. Counsel cites with confidence the decision of this court in the case of In re Miller's Estate, supra, and contends that the circumstances surrounding the execution of the will of Mrs. Miller were substantially the same as appear here. There, however, the circumstances, taken together, left room for one inference only, viz., that all the requirements of the statute had been substantially met. One of the subscribing witnesses stated that the testatrix did not say anything to him about the will or to any one in his presence, but that he saw her with the pen in her hand as she was signing it, that she was perfectly rational, and that he attested the signature in her presence at the request of her attorney. Furthermore, it appeared that the will had been read to her in the presence of the witnesses and others, and that she thereupon signed it. Here one of the subscribing witnesses did not hear the will read, was not requested by any one to sign as a witness to the writing as a will, did not see the signature of the testator, and was not informed of the character of the paper until nearly two years later. The testator therefore did not, within the meaning of the statute, either make publication of the writing as his will or request both witnesses to attest it. In re NOYES' ESTATE. NOYES v. GERARD. (Supreme Court of Montana. Dec. 24, 1909.) 1. WILLS (§ 130*)-HOLOGRAPHIC WILLSFORM OF INSTRUMENT-COMPLIANCE WITH STATUTE AS MANDATORY. Under Rev. Codes, § 4727, declaring that a holographic will is one that is entirely writtator himself, such a will without a date canten, dated, and signed by the hand of the tesnot be sustained. [Ed. Note. For other cases, see Wills, Cent. Dig. § 336; Dec. Dig. § 130.*1 2. CONSTITUTIONAL LAW (§ 67*)-STATUTORY RULES AS OBLIGATORY ON COURTS-EXECUTION AND PROBATE OF WILLS. The rules imposed by statute for the probate of wills are obligatory on the courts not only as to the quantum of proof necessary to authorize the probate, but also as to the particulars attending execution. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 123; Dec. Dig. § 67.*] 3. WILLS (§ 130*)-HOLOGRAPHIC WILLSFORM OF INSTRUMENT-NECESSITY OF SUBSTANTIAL COMPLIANCE WITH STATUTE. any particular form, and a mistake in the date Though a holographic will need not be in will not invalidate it, the requirements of Rev. Codes, § 4727, must be substantially met. [Ed. Note.-For other cases, see Wills, Cent. Dig. § 336; Dec. Dig. § 130.*] 4. WILLS (§ 132*)-HOLOGRAPHIC WILLS-INSTRUMENT WITHOUT DATE-VALIDITY. which met all the requirements of Rev. Codes, A writing on the letter head of deceased § 4727, except that the figures "190-," in the designation of the year in the date, are printed, so that, omitting the print, the date would be "Feb. 23, -3," is without date, and hence invalid as a will. [Ed. Note.-For other cases, see Wills, Cent. Dig. § 341; Dec. Dig. § 132.*] Smith, J., dissenting. Appeal from District Court, Yellowstone County; Sydney Fox, Judge. In the matter of the estate of Horace A. Noyes, deceased. Contest by plaintiff, John S. Noyes, of a writing filed by defendant, Sarah Gerard, with a petition to probate it as the holographic will of deceased. From a judgment for plaintiff, defendant appeals. Affirmed. After the final judgment had been entered in the cause entitled In the Matter of the Estate of Horace A. Noyes, deceased, 105 Pac. 1013, the defendant, Sarah Gerard, filed a petition in the district court of Yellowstone county asking that a writing, attached thereto as an exhibit, be admitted to probate as the last will and testament of said Noyes. The following is a copy of the writing: "Laurel, Mont., Feb. 23, 1903. To Whom it may Concern: I, Horace A. Noyes, being in my right mind, but bodily sick, and believing The judgment and order must therefore I may die, do leave this request that what be affirmed. Affirmed. SMITH and HOLLOWAY, JJ., concur. property I may leave shall all be given to Mrs. Sarah Gerard, who is now living in my house on lot 13, block 2, townsite of E. Laurel, and that she shall pay to my sisters and brother, or their natural heirs in case of their death, the sum of $10.00 each, pay all my debts, and bury my body in Billings. I mean all real and personal property of every description, and I farther wish that John D. Losekamp act as administrator (without bonds.) H. A. Noyes." John S. Noyes, the plaintiff, a brother of deceased, instituted a contest upon grounds stated in his written opposition to the probate. The defendant having filed her answer thereto, the issues presented were submitted to the court for decision, upon the following agreed statement of facts: dated, and signed by the hand of the testator himself," so as to constitute it a valid holographic will within the rule prescribed by the statute? Section 4727 of the Revised Codes declares: "A holographic will is one that is entirely written, dated and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of this state, and need not be witnessed." It is conceded by the plaintiff that the writing meets all of the requirements, except that the figures "190-," in the designation of the year in the date, are printed, and this he insists renders it invalid. The purpose of the provisions touching wills with witnesses and the rule of construction applicable are stated in the decision in the Matter of the Estate of Horace A. Noyes, deceased, supra. What is there said applies with equal force to the provision under consideration here, for it is mandatory in its terms, the purpose of it is the same, and the necessity to meet its requirements is equally imperative. "That said parties hereby agree upon the following statement of facts, and submit the same to the court for the determination of the points in controversy hereinafter specified. The facts agreed upon are as follows: (1) Exhibit A, attached to the petition for probate of will herein, is a full, true, and correct copy of the instrument filed herein, purporting to be the holographic will of Horace A. Noyes, deceased. (2) That said instrument is entirely written, dated, and signed by The contention of defendant is that the the hand of the testator himself, except that date is material only as a means of identifithe following portion thereof is printed there- cation and as an aid to the court in determinon and is not in the handwriting of the tes-ing the authenticity of the will, and that, tator, to wit: 'Laurel, Mont. -190-.' since there is no question here either as to (3) That said instrument is written upon a the identity of the testator or as to the auletter head of deceased, on which the follow-thenticity of the will, it is wholly unimporting printed words appear: 'H. A. Noyes ant that the figures "190" are not in the Dealer in Wines, Liquors and Cigars, Laurel, handwriting of the testator. If, he says, Mont. - 190-.' (4) That the said Hor- these figures were omitted, the date would be ace A. Noyes did not become acquainted "Feb. 23,3," thus bringing the writing with the said Sarah Gerard until the year within the decision in the case of Estate of 1899. The plaintiff concedes that this state- Sullivan, 130 Pa. 342, 18 Atl. 1120, cited in ment is true, but maintains that such fact is the note to the text on page 149 of 1 Williams incompetent, irrelevant, and immaterial in on Executors. There the entire will was as determining whether or not the instrument follows: "March 4. Will my Properti to my offered is the holographic will of deceased, weif my death. John Sullivan." Upon exexecuted in accordance with the laws of Mon- amination of the case itself we find that the tana, and reserves the right to object to this form of the writing was not in any way infact being considered by the court upon the volved; the only question determined being hearing. the capacity of the testator. The decision "The points in controversy, and upon which is therefore not in point. The case of Mcthe decision of the court is asked, are as fol- Michael v. Bankston, 24 La. Ann. 451, is cited. lows: (1) Does the printed part of said in- In this case the action was brought by the strument invalidate the same as a holograph- heirs of McMichael to cancel the holographic ic will? (2) Is the printed part of said will of their father, on the ground that it instrument any necessary portion of said in- was not all written by him. It appeared that strument as a holographic will? (3) Was two words had been inserted in the body of said instrument entirely written, dated, and the instrument by some person other than the signed by the hand of the testator himself in testator. The court held that, since the so far as it is necessary to constitute the meaning of the testator was apparent withsame a holographic will of said testator?" out the inserted words, it would, under a Upon these facts the court made its de-provision of the Code relating to procedure on cision for plaintiff, and judgment was entered accordingly. Defendant has appealed. W. M. Johnston, for appellant. Chas. A. Taylor and Harry L. Wilson, for respondent. BRANTLY, C. J. (after stating the facts as above). While the statement sets forth in form three questions for decision, they are all, in substance, the same, and may be incorporated in the single inquiry, to wit: Is probate of wills, consider them as not written, and therefore as not impairing the validity of the will. The case does not touch the point at issue. The case of Gaines v. Lizardi, 9 Fed. Cas. 1043, No. 5,175, is not entirely in point. As appears from the statement of the case, this was an action brought as an adjunct and means of defense to other suits to recover real estate in which the owner rested her title upon a holographic will; had been admitted to probate upon false and insufficient evidence. The will had been lost or destroyed. Upon proof that it had been executed according to the requirements of the statute, that the testator had not destroyed or revoked it, and that the petitioner had by its terms been made the sole legatee, it had theretofore been admitted to probate by the proper court in Louisiana, the place of testator's residence. Clark's Succession, 11 La. Ann. 124. The contention was that it had not been shown at the time of its admission to probate to have been properly dated, in that the day of the month was not mentioned. The federal court held that the evidence, though not specific and definite as to the particular day of the month, was sufficient to warrant the conclusion that the Louisiana court had found that it bore date on a particular day, and, in any event, that, inasmuch as it justified the conclusion that it did bear date upon one of the days of the month mentioned, it was sufficient. Both the federal and the state courts recognized the rule that the requirements of the statute, as to the form of the instrument, must be strictly complied with in order to give it validity. In the case of. In re Skerrett, 67 Cal. 587, 8 Pac. 181, the deceased in his lifetime executed and acknowledged a deed purporting to convey certain property to his sister. The deed was dated April 26, 1881, and acknowledged on the following day. The deed was never delivered, and hence could not take effect. It was not testamentary in character, and therefore could not have the effect of a will. A copy of it was found among the papers of the deceased in an envelope, together with an undated letter addressed to the sister. The letter showed a clear intention, expressed in the handwriting of the testator, that the sister should have the property. The time when the copy of the deed was made did not appear, nor did it appear when the letter had been written, except that it had evidently been written after the execution of the deed. The court held that the two documents constituted one instrument and was a completed will; the copy of the deed furnishing the date, and the letter the character of it. This case is is cited with approval in Estate of Fay, 145 Cal. 82, 78 Pac. 340, 104 Am. St. Rep. 17, wherein it was held that a writing, otherwise sufficient in form, was not rendered invalid by the fact that in the date the year was stated as "1859"; whereas, it should have been "1889." These cases in principle support defendant's contention; but they seem clearly to ignore the rule prescribed by the statute, and, as we shall presently see, are not upheld by the decisions of the same court. In Estate of Knox, 131 Pa. 220, 18 Atl. 1021, 6 L. R. A. 353, 17 Am. St. Rep. 798, cited by the defendant, nothing further is decided than that the signature required is the one customarily tatrix had signed the will in question by the name she habitually used, though it was only her first name, it was a sufficient signing. In Toebbe v. Williams, 80 Ky. 661, the testator had written, dated, and signed a document as his will. He afterwards went to an attorney and asked him to suggest such verbal corrections as he thought advisable. The attorney made four unimportant changes in pencil by interlineation and at the ends of the lines, and also by running his pencil through certain words. He also informed the testator that a will written wholly by the maker did not require witnesses, but that a will not so written must be witnessed, and gave him a form of attestation. After the testator's death the paper was found, bearing an unsigned attestation clause. The probate of this document being contested on the ground that it was not a completed will, the court held that it was such a will, although the testator, through mistake of law, thought it was not. In Estate of Fay, supra, the court said: "The date is not the material thing, although made necessary by the statute. It is a means of identification and aids in the authenticity of the will; but the main and essential thing is that the will be wholly written and signed by the hand of the testator." In an extended note to this case, after commenting upon a number of cases, and citing Estate of Clisby, 145 Cal. 407, 78 Pac. 964, 104 Am. St. Rep. 58, to the point that the testator may adopt as the date of his will any date previously written, Mr. Freeman says: "We must confess that the reasoning upon which these decisions are placed goes far toward establishing that the requirement of dating is directory rather than mandatory, and is, to us, entirely unsatisfactory so long as it is conceded that the requirement must be obeyed." Rep. 29. With this statement we agree. The requirement of the statute as to the date is not less mandatory than is the requirement as to signing, and it is not for the courts to say that either may be omitted without defeating the intention of the testator, though clearly expressed in the body of the writing. In Estate of Martin, 58 Cal. 530, the court held that a paper, complete in every other respect than that it bore no date, was inoperative as a holographic will, giving as its reason that the statute makes this requirement, and that this sort of a will is subject to no other form. In Estate of Rand, 61 Cal. 468, 44 Am. Rep. 555, the same court held that where the testator had filled in the spaces in a stationer's printed form, in his own handwriting, the paper did not meet the requirements of the statute, although complete in every other respect. In Estate of Billings, 64 Cal. 427, 1 Pac. 701, a paper, though written in full in the handwriting of the testator, except that in the date the name of the place and the year were printed, must be entirely written, entirely dated, and should be manifest which is the last, in case In Fuentes v. Gaines, 25 La. Ann. 85, it was said: "The right to make a testament at all is derived from the law. The Legislature which conferred the right could undoubtedly impose such rules for the probate of wills as it deemed proper, and these rules and restrictions are obligatory on courts." This is true not only as to the quantum of proof necessary to authorize the probate, but also as to the particulars attending the execution. To the same effect is the decision in Succession of Armant, 43 La. Ann. 310, 9 South. 50, 26 Am. St. Rep. 183. A case directly in point here is Succession of Robertson, 49 La. Ann. 868, 21 South. 586, 62 Am. St. Rep. 672. The document under consideration was written, as here, on a letter head of the testator, having the words "New Orleans," and the figures "189" in print. The only date written was "Dec. 12, 2." The court affirmed the judgment of the district court and declared the document a nullity. Referring to a provision of the Civil Code similar to our own, it said: "Under the precise language of the article, the date is one of the essential formalities of an holographic testament. The nullity is declared by the law itself. It has been decided that absence or uncertainty of the month or the day of the testament is cause to decree it null. For better reason, the ruling should be the same where the year is not stated or is left to mere conjecture. The 'year' printed or written by another is not a date in the hand of the testator, made the essential of a valid will. The law enjoins the date on two grounds: The first, the most essential, is in order that the precise date the testator made a disposition of his property may be known, rendering it possible to determine whether the testator had the capacity of giving at the time the testament was made. The second ground We agree with the principle of the decision in Estate of Plumel, supra, and the rule as announced in Succession of Robertson, supra. The statute is clear and unmistakable in terms. This court has no power to disregard it; and, as well said by Judge Fenner, in Succession of Armant, 43 La. Ann. 314, 9 South. 52, 26 Am. St. Rep. 183: "We were at first much impressed with the clear proof made that the deceased intended this paper to be her testament; but there is no more doubt that she intended the invalid nuncupative codicil to be her testament. Yet, as the latter was attested by women who are incompetent testamentary witnesses, no one claims its validity; and so, if the holographic will is not signed as required by law, her intentions cannot save it. The question is not whether she intended this paper to be her will, but whether it is a will clothed with the form of law. An holographic will, like every other testament, is a solemn act. It matters not how clearly it conveys the last wishes of the decedent. If it is not clothed with the forms prescribed, it is null." The following authorities sustain this view: Warwick v. Warwick, 86 Va. 602, 10 S. E. 843, 6 L. R. A. 775; Baker v. Brown, 83 Miss. 793, 36 South. 539; Scott v. Harkness, 6 Idaho, 736, 59 Pac. 556; 30 Am. & Eng. Ency. Law (2d Ed.) 551. But it is useless to multiply authorities. The statute declares the rule itself in unmistakable terms. It may well be said that such a will need not be in any particular form, and that a mistake in the date will not invalidate it; but that the statutory requirements, thus plainly expressed, must be substantially met, is, we think, the only safe rule. Counsel for defendant cites, also, the case of Barney v. Hayes, 11 Mont. 99, 27 Pac. 384; Id., 11 Mont. 571, 29 Pac. 282, 28 Am. St. Rep. 495, wherein a letter was admitted to probate as a codicil to a will, though the year mentioned in the date was "1880," instead of "1890," the year in which it was written. Since the letter was written, dated, and signed entirely in the handwriting of the testator, it was upon its face a valid testamentary paper, so far as its form was concerned. As we have already stated, it may validate the instrument; yet, though this is so, the case of Barney v. Hayes does not affect the point at issue. Omitting the figures "190" from the date, the instrument before us is without date, and is therefore invalid as a will. section of land, he (Irwin) would indorse the note, and could get the money thereon from the appellee John M. Grant. Accordingly the note and mortgage sued on were prepared and executed by Isett, who sent one Cates, a notary public, to Isett's residence to get The judgment of the district court is af- the signature of Mrs. Isett and to take her firmed. Affirmed. acknowledgment to the mortgage. It does not appear from the evidence that Irwin was loaning money for Grant, or that he acted HOLLOWAY, J., concurs. SMITH, J., dis- as the agent of Grant in this transaction, al sents. GRANT et al. v. ISETT. (Supreme Court of Kansas. Dec. 11, 1909.) 1. BILLS AND NOTES (§ 102*) - VALIDITY — MISTAKE OF LAW. If the answer of appellant is to be construed strictly and grammatically, as probably it should be against the pleader, it sets forth no defense to the petition, but alleges only an error of law on the part of the appellant, for which the appellee is not alleged to have been in any way responsible. [Ed. Note. For other cases, see Bills and Notes, Cent. Dig. § 241; Dec. Dig. § 102.*] 2. BILLS AND NOTES (§ 372*) - BONA FIDE PURCHASER. If the answer of appellant be construed favorably to her, and in the light of her own testimony that the note was signed only through inadvertence and mistake, then it must also be said that the evidence shows the appellee was practically an innocent holder of the paper, and that the appellant, and not the appellee, must bear the burden occasioned by the mistake. [Ed. Note. For other cases, see Bills and Notes, Cent. Dig. § 953; Dec. Dig. § 372.*] (Syllabus by the Court.) 3. CONTRACTS (§ 50*)-"CONSIDERATION" — GENERAL DEFINITION. A "consideration" for a contract may in general terms be defined to be something of value received by one party or parted with by the other by reason of the contract. [Ed. Note. For other cases, see Contracts, Cent. Dig. § 222; Dec. Dig. § 50.* For other definitions, see Words and Phrases, vol. 2, pp. 1444-1449; vol. 8, p. 7612.] Appeal from District Court, Neosho County; A. S. Lapham, Judge pro tem. though it does appear that neither Mrs. Isett nor her husband had any personal negotiation with Grant in regard to the matter. Irwin appears to have been acting rather for himself and Mr. Isett in negotiating the note and mortgage and getting the money for himself to settle the difference between them. It appears that Isett and wife did not execute the note and mortgage for Isett's debt directly to Irwin as the payee, but instead of taking the note and mortgage to himself and transferring them to Grant, Irwin took the note and mortgage directly to Grant. and the transaction on the part of Irwin is rather that of a negotiator of paper than as agent for either party. Isett and wife did not borrow money of Grant or obtain any money from him, but Irwin obtained the money by presenting the note and mortgage executed directly from Isett and wife to Grant. The note and mortgage not being paid, this suit was brought for judgment thereon against the Isetts and Irwin, and for the foreclosure of the mortgage. Mrs. Isett answered separately, and set forth the following among other matters, as appears by her abstract here: "That pursuant to said understanding and agreement this defendant did execute the said mortgage. but she further says that at the time she signed the said mortgage she also, by inadvertence, misapprehension, and mistake, signed the note, after being informed that it did not and would not personally bind her nor make her personal estate liable for said debt, but that it only bound her to the extent of her interest in said lands." A demurrer to this answer was overruled, and a jury was Action by John M. Grant and others against Ellen C. Isett. Judgment for plain-impaneled to try the case, and evidence intiffs, and defendant appeals. Affirmed. troduced, and at the close of the evidence Charles H. Apt, for appellant. John J. of the defendant, upon whom the court held Jones and James W. Reid, for appellees. SMITH, J. This action was brought against S. G. Isett and his wife, Ellen C. Isett, who is the appellant, by John M. Grant. It appears from the evidence that S. G. Isett, the husband of appellant, and one Edwin Irwin were copartners in business, and that Isett became indebted to Irwin therein in the sum of $8,000. To procure money for the settlement of the indebtedness Irwin proposed to Isett that if the latter would give his note for $8,000, secured by a mortgage on his undivided one-half interest in a quarter rested the burden of proof, the court sustained a demurrer to the defendant's evidence, discharged the jury, and rendered judgment in favor of the appellees. The above excerpt from the answer of Mrs. Isett seems rather ambiguous, and, if so, should be construed most strongly against her under the familiar rule of pleading. So construed, it alleges that she signed the note after being informed that it did not, and would not, personally bind her nor make her personal estate liable for the debt, but that it only bound her to the extent of her interest in the land. If she took counsel as to |