157 P.2d 347 | Ariz. | 1945
Catherine Hesse at her death on March 20, 1941, at the age of 76 years, left a will bearing date of April 25, 1939, and a codicil dated October 30, 1940. The codicil merely changed the amount of one specific bequest. These two documents were admitted to probate as her last will and testament on April 15, 1941. Shortly before a year expired Elizabeth McNutt, one of two sisters of decedent, instituted a contest alleging undue influence by persons unknown, and incapacity to make a will.
Upon plaintiff's (parties will be referred to as they were in the trial court) demand the will contest was tried before a jury, and upon the conclusion of plaintiff's case the court granted defendants' motion for an instructed verdict, finding the will to be valid. Thereupon the court entered judgment sustaining the will, from which judgment this appeal was taken.
[1] Some procedural questions are raised: Paragraphs 8 and 9 of the petition to contest attack the validity of specific bequests to the Roman Catholic Church, which are contained in clauses 6, 7, and 8 of the will. The bulk of the estate is purportedly disposed of therein, one being the residuary clause which *276 is most bitterly attacked. The gist of this attack is that an invalid trust is attempted to be created; that there is no qualified trustee to take; that the beneficiary is not a corporation sole; that there is no separation of the legal and equitable title between purported trustee and beneficiary; that the purported trust violates the rule against perpetuities; that the cy-pres doctrine has no application; that a resulting trust is created in favor of petitioner. Then she alleges that if these provisions of the will are declared invalid that the property would then pass to petitioner and others under the law of descent and distribution as if the decedent had died intestate.
While the conclusion last stated is doubtless correct, the trial court refused to permit the reading of these paragraphs of her petition to contest, or the corresponding paragraphs of the answer, to the jury and also refused to permit the introduction of any evidence in support of these allegations. The reason given by the court for these rulings was that no question of fact was involved, that it was purely a question of law, and that furthermore none of these matters had to do with the legality or validity of the will; that in this will contest proceeding the court was not concerned with the interpretation or effect of specific provisions of the will. These rulings form the basis of two assignments of error.
Manifestly the ruling of the trial court was correct in all respects, for the reason that our statute (Arizona Code Annotated 1939, Secs.
This is what some authorities term the old commonlaw issue ofdevisavit vel non. 1 Bancroft Prob. Practice, Secs. 131, 132, 133, page 239 et seq. Sporn v. Herndon,
The prior holdings of this court have drawn a distinction between the validity of the instrument as a will and how much effect can be given its terms.
[2] In the case of In re Estate of Harris,
The same rule obtains in other jurisdictions having statutes practically identical with ours. In Re Cook's Estate,
[3-5] A "will contest," strictly speaking, is any kind of a litigated controversy concerning the eligibility of aninstrument to probate as distinguished from the validity of thecontents of the will. The question of a will or no will valid under the law is the sole issue on a contest proceeding. Legal questions involved in the construction or meaning of a validly executed will *278 are not grounds of contest. For instance, would it not be a travesty on justice to deprive some person of a legacy in a validly executed will by denying it probate merely because there happened to be some invalid provision contained therein.
[6, 7] It would appear that here the plaintiff has mistaken the scope of a will contest. She should raise these questions during probate as an incident to the statutory proceeding to determine heirship, (Secs. 38-1518 et seq., Arizona Code Annotated 1939) then the could would have jurisdiction to construe the will, 3 Bancroft's Probate Practice 1954, Sec. 1200, or the validity of a clause may even be attacked on a petition for final distribution, as we pointed out in the case of Lowell
v. Lowell,
The plaintiff next assigns as error that the court directed a verdict upholding the validity of the will without requiring that all of the subscribing witnesses to the will and codicil who were present in the county be produced by the proponents of the will and examined, or their absence accounted for. The meager record before us shows that this was not required of defendants.
[8, 9] Were this contest an opposition to probate of a will in the first instance, as is provided for under Sec. 38-210, Arizona Code Annotated 1939, the statutory requirement (Sec.
In passing, it is interesting to note that the California Supreme Court has held the preliminary proof of the subscribing witnesses under (1) supra, is for the court, and not for the jury, unless the court directs otherwise. In re Latour'sEstate,
[10] However, this is a petition to revoke probate already had under Sec. 38-216, Arizona Code Annotated 1939 et seq., and we think the better rule is that the preliminary prima facie
showing having already been made it need not be repeated. It has sufficient force to fix the burden of proof on the contestant as to all matters purportedly adjudicated. As the Montana court stated In re Silver's Estate,
Apparently Oregon is the only one of the Western States that follows the archaic procedure of granting a trial de novo.
There, under circumstances such as these, the original establishment of the will is held for naught and it must be re-probated. In re Johnson's Estate,
[11] Furthermore the grounds of contest here alleged did not attack "the sufficiency of the proof" to establish the will in the first instance, which is one of the statutory grounds, (Sec. 38-216, Arizona Code Annotated 1939), and for that reason alone this contention should be rejected as not within the framed issues.
Plaintiff contends that in a will contest the jury is the trier of both the law and the facts. That the same rule applies as in an action for criminal libel (Sec. 43-3502, *280
Arizona Code Annotated 1939) or where the issue of contributory negligence is raised (Art.
It is our opinion that this assignment is wholly without merit. Bancroft's Probate Practice Vol. 1, page 388, Sec. 213, states: "There seems to be no question but that the court has the same power to direct a verdict in a will contest as in civil cases, subject to the same limitations."
While this precise question was not raised, we have impliedly upheld such action by the trial courts in affirming the judgmentsIn re Smith's Estate,
[12, 13] Having concluded that the court has the power to instruct a verdict in a will contest the same as in civil cases, we next consider whether the trial court was justified in doing so in this case. At the outset of this inquiry we are confronted with a meager *281
and incomplete transcript of the testimony taken at the trial. The clerk's minutes show five witnesses were sworn and testified, the transcript consists of 30 pages, most of which is a colloquy between court and counsel, and it only shows a part of the testimony of two witnesses. Under the rule laid down by us in the cases of Peters v. Pima Mercantile Co.,
Being doubtless familiar with this rule, plaintiff seeks to avoid its impact and hence predicates an assignment of error on the bald proposition that the court erred in directing a verdict and in not submitting the issue of undue influence to the jury for the reason that "the will on its face" shows that the testatrix cut off the natural objects of her bounty with a pittance ($100 each) and attempts to give her estate (amounting to approximately $75,000) to strangers to her blood who stand in a confidential relationship to her. We think it unnecessary to set out the will haec verba, as the substance of it has already been stated.
[14, 15] The burden was upon the plaintiff to prove the allegations of her complaint as to undue influence, particularly was this true where, as here, the will had already been admitted to probate. In re Estate of Tyrell,
[17] Restricting, as we must, our consideration of this assignment of error to the "will on its face," for the plaintiff may not support her position by the pleadings or evidence or references thereto as these are matters aliunde the will, what do we find? There is nothing within the four corners of the will to show any confidential relationship as one between "priest and penitent," nor is it shown that there was even an acquaintanceship between decedent and Bishop Gercke, or Rev. Connolly. Yet both of these parties testified, but their testimony is not before us. Even if this confidential relationship were shown on the face of the will, which it is not, there can be no presumption that such relationship existed some eighteen months later when another will was executed in the form of a codicil, prepared by a different attorney and witnessed before different witnesses. There is nothing in the will to show that these representatives of the Catholic Church, assuming they are the "strangers" referred to in the petition, participated in procuring the execution of the will or had anything to do with the preparation of the will. A splendid case enunciating the general principles which are controlling here, written by that great jurist, Chief Justice Angellotti, is found In re Baird'sEstate,
[18] Finally by assignments some point is attempted to be made of the fact that the jury's verdict only refers to the will, no mention being made of the codicil; whereas, the judgment as entered upon the verdict decrees *283
both the will and the codicil thereto to be valid. While it is true, as we have frequently held, that the judgment must conform with the verdict, yet by statute (Sec.
We express no opinion as to the validity of any of the bequests or charitable trusts set forth in the will, as such matters are not now properly before us, and were not attempted to be determined by the trial court. These are principally matters of law for the determination of the court when its jurisdiction is properly invoked. The judgment of the lower court instructing a verdict and refusing to revoke the prior probate of decedent's will and holding the same to be a valid will is sustained.
Judgment affirmed.
STANFORD, C.J., and MORGAN, J., concur.
ARTHUR T. LaPRADE, J., having disqualified, as he was the trial judge, the Honorable LEVI S. UDALL, Judge of the Superior Court of Apache County, was called to sit in his stead. *284