In re Estate of Nolan, Civil 4129
| Decision Date | 09 December 1940 |
| Docket Number | Civil 4129 |
| Citation | 56 Ariz. 353,108 P.2d 385 |
| Parties | In the Matter of the Estate of THOMAS C. NOLAN, Deceased v. GRACE I. HUMPHRIES, also Known as GRACE NOLAN, Individually and as Executrix of the Estate of THOMAS C. NOLAN, Deceased, Appellee HONORA M. NOLAN, Appellant, |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Niles, Judge. Judgment affirmed in part and reversed in part.
Mrs. E G. Monaghan and Mr. Thomas A. Flynn, for Appellant.
Messrs Fennemore, Craig, Allen & Bledsoe, for Appellee.
This is an appeal from a judgment of the superior court of Maricopa county, denying the petition of Honora M. Nolan to revoke a probate of will and confirming the order previously made admitting the will in question to probate. No transcript of the testimony was filed, the appellant preferring a statement of facts under sections 3866-3869, 3871 and 3873 Revised Code of 1928. Considering the evidence set forth in the statement in the strongest manner in support of the judgment, the material facts necessary for its review are as follows:
On August 5, 1903, Thomas Nolan, hereinafter called decedent, was married to Honora M. Nolan, hereinafter called petitioner, and they lived together as such husband and wife until the middle of June, 1931. About the year 1926 Grace I. Humphries, hereinafter called respondent, became acquainted with decedent and petitioner while she was teaching school in Prescott, Arizona. A strong friendship sprang up between the parties, which developed into a warmer feeling on the part of decedent at some time prior to March 10, 1931. On that date he made a holographic will, which reads as follows:
and sent a copy to respondent. A few months previous to this time he had informed her that he was in love with her, and was having trouble with his wife, but did not in any manner intimate to her that he intended to leave her his property, nor was the matter discussed between them before the execution of the will. The first time that she saw him, after she received a copy of the will, she objected to the fact that he had mentioned her therein as his future wife, saying he was putting her in a bad light by leaving her his property, to which he replied that he wanted her to have everything he owned, as he had already made a division of community property with his wife. Respondent never at any time promised to marry him if he would make a will in her favor, nor asked him to make such a will, nor discussed the subject at all. It was, so far as the evidence shows, entirely of his own desire and volition that he made the will in the form in which it was made. Decedent and his wife separated some time in the summer of 1931, and in the spring of 1932 he filed an action for divorce in the superior court of Yavapai county, which was dismissed on his motion. On June 2, 1932, a decree of divorce in favor of decedent was entered in the Court of the First Instance of the District of Bravos, State of Chihuahua, Mexico, and on June 4, 1932, decedent and respondent were married at Las Cruces, New Mexico. After this marriage they went to West Point, Nebraska, where they lived until the time of his death, although they made frequent trips to Arizona for the purpose of visiting friends.
It was in evidence that decedent was in good health at the time his will was made, that he was a man of strong character, firm in his decisions, and not easily swayed nor influenced. At that time he was proximately fifty-four years of age, while respondent was about twenty-eight. We shall refer to such other testimony as appears in the record as is necessary from time to time.
There is no question that the will was written entirely by decedent, and that with one possible exception it was in proper form and sufficient on its face.
The objections made to its probate are threefold, (a) that a will of this nature is against public policy, (b) that it was executed under the undue influence of respondent, and (c) that the words "to my future wife Grace I. Humphries" do not, as a matter of law, sufficiently describe the beneficiary under the will.
So far as (b) is concerned, we think the trial court was fully justified in finding that decedent was not unduly influenced by respondent as to the making of the will. She testified positively and distinctly that she had never asked him to make any kind of a will, let alone one in her favor; that she had never discussed the subject of the making of a will with him before it was executed, and that she had no knowledge that he intended to make a will in her favor until he sent her a copy of the one which he had already executed. There is no evidence directly contradicting this testimony. It is true there is in the record a great mass of evidence which shows that respondent and decedent were close friends from 1926 until the time the will was executed; that the feeling of friendship had grown into a warmer one, and that they had at times been together under circumstances which made it possible for their relations to have become illicit, although there is no direct evidence that their friendship had reached that point, and a positive denial by respondent that it had. But this is utterly insufficient to establish, as a matter of law, that the will was made under the undue influence of respondent.
Nor do we think the description of respondent as "my future wife" makes the will invalid. It is contended that the use of these words made the devise conditional, so that respondent could only take if, at the time of the death of decedent, she was his surviving spouse, and that since the court found that the decree of divorce, and necessarily the subsequent marriage, was invalid, the will failed for lack of a beneficiary. The question is whether these words were intended as a phrase of description merely or as a condition. It would extend this opinion to unnecessary length to cite all the...
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Tomten v. Thomas
...58 Okl. 470, 160 P. 465, 467. A statute providing for 'fees and expenses' in a will contest includes attorneys' fees. In re Nolan's Estate, 56 Ariz. 353, 108 P.2d 385, 388. A statute awarding 'costs and expenses' to one who suffers loss or injury through contempt embraces attorneys' fees. F......
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Paulson v. Risovi
...is not made conditional by subsequent words or phrases which further identify the intended beneficiary); In re Nolan's Estate, 56 Ariz. 353, 108 P.2d 385, 387 (1940) (holding a bequest to “my future wife” did not create a condition in the testator's will, but merely reflected “[D]ecedent we......
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Barnstable v. U.S. Nat. Bank
...In re Devitt's Will, 12 Misc.2d 168, 172 N.Y.S.2d 848, 850; In re Sussman's Will, Sur., 60 N.Y.S.2d 609, 610; In re Nolan's Estate, 56 Ariz. 353, 108 P.2d 385, 387; Schnack's Estate v. Schnack, 155 Kan. 861, 130 P.2d 591, 596; In re Nessel's Estate, 164 Cal.App.2d 798, 331 P.2d 205, 209; Br......
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Kidd's Estate, In re
...testator did not fully realize what he was doing with his property, it was his to dispose of as he pleases.' And in In re Nolan's Estate, 56 Ariz. 353, 108 P.2d 385, 387, we 'The general rule is that in the absence of statutory provision limiting it, a man may dispose of his property as he ......