In re Estate of Greene

• Decision Date: 31 May 1932
• Docket Number: Civil 3101
• Citation: 11 P.2d 947,40 Ariz. 274
• Parties: In the Matter of the Estate of JOHN N. GREENE, Deceased. v. MATILDA M. GREENE, Appellee BEUTHAL W. GREENE, Named as Executor of the Last Will and Testament of JOHN N. GREENE, Deceased, Appellant,
• Court: Arizona Supreme Court

11 P.2d 947

40 Ariz. 274

In the Matter of the Estate of JOHN N. GREENE, Deceased.

BEUTHAL W. GREENE, Named as Executor of the Last Will and Testament of JOHN N. GREENE, Deceased, Appellant, v. MATILDA M. GREENE, Appellee

Civil No. 3101

Supreme Court of Arizona

May 31, 1932

APPEAL from an order of the Superior Court of the County of Maricopa. Thomas J. Prescott, Judge. Order reversed and cause remanded, with instructions.

Messrs Struckmeyer & Jennings and Mr. George F. MacDonald, for Appellant.

Messrs Hayes, Stanford, Walton, Allee & Williams, for Appellee.

OPINION

LOCKWOOD, J.

This is an appeal from an order of the superior court of Maricopa county denying probate to the will of John N. Greene hereinafter called testator, on the ground that at the time the will was executed he "was not of sound mind and memory and was not competent to make a will or to make any testamentary disposition of his property whatsoever."

The sole question raised on the appeal is whether the evidence was sufficient to authorize the trial court in reaching such a conclusion. It is, of course, the law in this jurisdiction that the findings of the trial court on a question of fact will not be disturbed by this court if there is any reasonable evidence in the record which would sustain the findings.

The facts, considering the evidence in the strongest light in favor of appellee, may be stated as follows: The testator herein was approximately fifty years of age at the time of his death, and Matilda M. Greene, the appellee, whom he married in the year 1926, was about forty-five. Testator at the time of his marriage owned a considerable amount of real estate in the Salt River Valley and was also interested in certain property in Mississippi. For many years he had assisted materially in the support and education of certain of his nephews and nieces, among them Beuthal W Greene, appellant herein, and the latter had been residing with him for some time.

Shortly before the marriage the testator deeded to appellee eighty acres of desert land situated under the Paradise Verde project, for which she paid all told approximately $1,600 out of funds she had earned before the marriage. This land was later sold and apparently the proceeds were all eventually used for community purposes. After the marriage she worked a considerable portion of the time, and her earnings eventually were exhausted in community expenses.

Apparently their domestic relations were harmonious until some time in the year 1928, when they had a serious quarrel over appellant. According to appellee, she objected to appellant living with herself and testator unless he paid a reasonable amount for board and room, while the testator seemed to think it was perfectly proper for him to remain without such payment. The matter, however, was patched up on the surface, but some feeling apparently remained among the parties in regard to the transaction.

In September, 1929, testator was taken ill and grew steadily worse until January, 1930, when he suffered from a slight paralytic attack as the result of an embolus which eventually lodged in his foot. Gangrene soon set in and it was necessary to amputate his leg above the knee in order to prolong his life, although according to his attending physician he was suffering from valvular heart trouble, which was progressive in its nature, and it was only a question of a greater or lesser time until such affliction would cause his death.

From the date of the amputation onward during the months of February and March testator was delirious at times and admittedly during that period had various mental delusions. On the other hand, during most of that time he was apparently perfectly normal mentally. The strain of caring for him was great, both physically and financially, and his family and friends seriously considered attempting to have him committed to the state hospital for the insane, but, as he improved, abandoned the idea.

Along in the late spring testator decided to sell the house in which he and appellee then lived (which was his separate property) in order to raise money to pay off his debts and to secure further medical treatment. Appellee objected to this at first, but eventually consented, and the transfer was finally made about the middle of June. It then became necessary for the testator and his wife to seek other quarters, as the purchaser desired possession of the premises, and he wished to remove to the home of his nephew, the appellant herein, although appellee's brother had offered to allow the parties to use one of his vacant houses rent free so long as they desired. Due to the strained feeling between appellee and appellant, she declined to go to appellant's house when her husband did, but went to her brother's place, and remained there until the death of the testator, which occurred on the 14th of July. During this period, although she several times visited the neighborhood of appellant's premises, she never went to see her husband. He apparently knew of this fact and resented it.

On the tenth day of July his attorney prepared a will, which was duly executed, in which he left practically all of his property to his own relatives, inserting the following clause regarding his wife:

"Second: I give and bequeath to my wife, Matilda May Greene, the sum of One ($1.00) Dollar, not with the idea of cutting her out of my estate, but for the reason that she has heretofore received, by deed, Eighty (80) acres of land located in Maricopa County, State of Arizona, from my separate estate."

When the will was offered for probate this contest was filed, appellee claiming that it was executed under the undue influence of appellant and his brother and sister, and also that testator was not competent at the time the will was executed. The trial court found, as we have stated above, that testator was incompetent, but made no finding on the question of undue influence. Without going further, we may say there is no evidence in the record justifying any finding that any undue influence was exercised by appellant or by his brother or sister in regard to the making of the will.

The sole question before us is whether the evidence sustains the finding that testator had no testamentary capacity on the tenth day of July, the time when the will was made. In passing upon this question we consider first the rules of law applicable to the situation disclosed. These are well stated by the Supreme Court of California in the recent case of In re Perkins' Estate, 195 Cal. 699, 235 P. 45, as follows:

"It is well settled that, upon the contest of a will on the ground that the deceased was of unsound mind, the actual mental condition of the testatrix at the time of the execution of the will is the question to be determined. Estate of Dolbeer, 149 Cal. 227, 9 Ann. Cas. 795, 86 P. 695; Estate of Little, 46 Cal.App. 776, 189 P 818; Estate of Casarotti, 184 Cal. 73, 192 P. 1085. Evidence as to mental...