In re Estate of Brashear, Civil 4069
Decision Date | 11 December 1939 |
Docket Number | Civil 4069 |
Parties | In the Matter of the Estate of EUGENE BRASHEAR, Deceased. v. FANNIE GLASCOCK and CHARLES B. WARD, Administrator, Appellees FRANK DONER and ANNA MAE McFARLAND, Appellants, |
Court | Arizona Supreme Court |
APPEAL from an order of the Superior Court of the County of Maricopa. J. C. Niles, Judge. Order affirmed.
Messrs Cox & Moore and Mr. B. L. Hibbert, for Appellant Frank Doner.
Mr Albert R. Smith, for Appellant Anna Mae McFarland.
Mr Robert DeWolf and Mr. Floyd M. Stahl, for Appellees.
Frank Doner and Anna Mae McFarland, hereinafter called petitioners filed their petition for the probate of the will of Eugene Brashear, hereinafter called deceased, in the superior court of Maricopa county. Fannie Glascock, hereinafter called contestant, filed grounds of opposition to the probate of the will, setting up four objections thereto which, in substance, amounted to an allegation that the will was not executed in the manner required by law. The matter came on for trial before the court sitting without a jury, and oral and documentary evidence was introduced by both parties. Thereafter the court sustained the objections to the admission of the will to probate, and Charles B. Ward was appointed administrator of the estate of the deceased. No findings of fact were requested nor made. We must, therefore, assume that the court found every fact necessary to support its judgment. Blackford v. Neaves, 23 Ariz. 501, 205 P. 587. And if there is any substantial evidence which would support such presumed findings, we must sustain them. Warren v. Mosher, 31 Ariz. 33, 250 Pac, 354, 49 A.L.R. 1311; Aldous v. Intermountain B. & L. Assn., 36 Ariz. 225, 284 P. 353.
The real question before us is whether there is any reasonable evidence to sustain the conclusion which the trial court necessarily must have reached that the will offered by petitioners for probate was not executed as required by section 3637, Revised Code of 1928, which reads as follows:
We think the evidence would reasonably sustain the conclusion that the actual facts surrounding the execution of the will were as follows: At the time of the execution of the will the deceased was eighty-five years of age, but of sound mind. At his request, George W. Vaughn, who for many years had been a friend of deceased, prepared the will in question which left substantially all his property to his niece, Anna Mae McFarland, one of the petitioners herein. The terms of the will were given to Vaughn by the deceased and Frank Doner, another friend of the latter. Thereafter the will was signed by the deceased and three witnesses, Henry Hendricksen, Mrs. Myrtle Miles and her daughter, Gladys Miles. So far the evidence is undisputed, but a sharp conflict appears over the time and manner in which the will was signed by the deceased and the witnesses.
It is agreed by both petitioners and contestant that when Gladys Miles signed the will it was not in the presence of the testator, and that she cannot be considered as a witness within the meaning of section 3637, supra. Myrtle Miles testified she was called over to the home of deceased, which was across the street from her residence, and found there deceased, Vaughn and Doner. She continued her testimony as follows:
The evidence of Frank Doner was that Mrs. Miles was not present when deceased signed the will. We think this evidence alone was sufficient to justify the trial court in concluding that the deceased did not sign the will in the presence of Myrtle Miles, nor was it signed by him until after she had signed her name as a witness and left the premises. It is true there is evidence to the contrary by other witnesses, but their credibility was, of course, for the trial court. On this state of facts, was the will properly witnessed by Myrtle Miles?
There are two lines of authorities as to whether it be necessary for a testator to sign before the attesting witnesses fix their names to a will. The...
To continue reading
Request your trial-
Fairway Builders, Inc. v. Malouf Towers Rental Co., Inc.
...417 P.2d 741, 743 (1966). Further, we must assume that the court found every fact necessary to support its judgment. Estate of Brashear, 54 Ariz. 430, 96 P.2d 747 (1939). All inferences supported by the evidence must be taken in favor of affirming the judgment. Odom v. First National Bank o......
-
DeSantis v. Dixon, 4973
...by the trial court, the supreme court must assume on appeal that every fact necessary to support its judgment was found. Estate of Brashear, 54 Ariz. 430, 96 P.2d 747; Grimm v. Beard, 63 Ariz. 281, 161 P.2d 924; Town of Wickenburg v. Sabin, 68 Ariz. 75, 200 P.2d 342. Therefore the decision ......
- Burnett for Burnett v. Industrial Com'n of Arizona, 1
-
Town of Wickenburg v. Sabin
... ... v ... James, 28 Ariz. 514, 237 P. 958; In re Estate of ... Brashear, 54 Ariz. 430, 96 P.2d 747. * * *" See also ... Perkins ... ...