173 P. 417 | Ariz. | 1918
(After Stating the Pacts as Above). — ■ The appellants assign as error the insufficiency o£ the evidence to support the verdict and the failure of the evidence to sustain the judgment. The court has clearly based the judgment on the count of the complaint asserting testamentary incapacity as the grounds for contest. Such is manifestly the effect of the court’s findings of fact. The second ground for contest, undue influence, is wholly unsupported by the evidence, and the trial court so treats the matter by failing to mention any fact as established tending to prove undue influence exerted at the time the instrument was signed in the “death chamber” as alleged in the complaint. The appellants then have no grounds for complaint with regard to the second alleged cause for contest; the issues based thereon having been in effect determined in favor of the appellants and rightly so.
The circumstances under which the will was prepared, signed and declared are established by the uncontroverted testimony of the persons present at the time. On the thirtieth day of December, 1915, the testatrix was seriously ill, and had been seriously ill for eight days. About noon on said thirtieth day of December, Dr. Looney, her regular physician, visited her professionally, and he states that testatrix was then mentally sound.
Marie Sedillos was at the Brazil house all the day of December 30th. Dr. Looney came and left. After the doctor left Mrs. Brazil requested Marie Sedillos to find Teresa Martinez and have her send for the priest and for Mr. Morrison, Mrs. Brazil’s lawyer. Marie did as she was requested, and Teresa sent her little boy for the priest and lawyer. About 4 o ’clock in the afternoon Mr. Morrison arrived at the Brazil home accompanied by Mr. Allen Hill, an office assistant to Mr. Morrison. A few minutes later the priest arrived. When Mr. Morrison and Mr. Hill arrived Ochoa attended them at the door. Mrs. Brazil was in- bed. Mrs. Martinez was in the room. Mr. Morrison and Mr. Hill greeted Mrs. Brazil and inquired of her wish. She told Mr. Morrison that it was her desire to “make a paper giving to Andres Ochoa all my property. ’ ’ Mrs. Martinez was requested by Mr. Morrison to, and she did, inquire in the Spanish language of Mrs. Brazil her desire for the presence of Mr. Morrison. Mrs. Martinez said that “Mrs. Brazil wants you to make out her will or a
I find no substantial evidence in the record showing or tending to show that the testatrix was mentally incapacitated to make the will in question on the thirtieth day of December, 1915. The judgment is not sustained by the evidence, and is therefore contrary to law.
The judgment is vacated, and the cause remanded, with instructions to grant a new trial.
FRANKLIN, O. J., and ROSS, J., concur.