In re Estate of Hadsell, Civil 4134

• Decision Date: 12 February 1940
• Docket Number: Civil 4134
• Citation: 55 Ariz. 116,99 P.2d 93
• Parties: In the Matter of the Estate of BURGESS A. HADSELL. Deceased. v. C. H. RUSSELL, IDORA P. RUSSELL, and WALTER E. HADSELL, Appellees WILLIAM SUTTERLIN, Executor of the Estate of BURGESS A. HADSELL, Deceased; ANNA M. SUTTERLIN, MAMIE S. TAYLOR, ANDREW H. HADSELL, EDWIN P. HADSELL, a Minor, by His Guardian, HARRIETTE P. HADSELL, Appellants,
• Court: Arizona Supreme Court

99 P.2d 93

55 Ariz. 116

In the Matter of the Estate of BURGESS A. HADSELL. Deceased.

WILLIAM SUTTERLIN, Executor of the Estate of BURGESS A. HADSELL, Deceased; ANNA M. SUTTERLIN, MAMIE S. TAYLOR, ANDREW H. HADSELL, EDWIN P. HADSELL, a Minor, by His Guardian, HARRIETTE P. HADSELL, Appellants, v. C. H. RUSSELL, IDORA P. RUSSELL, and WALTER E. HADSELL, Appellees

Civil No. 4134

Supreme Court of Arizona

February 12, 1940

APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Niles, Judge. Judgment reversed.

Mr Albert R. Smith, for Appellants.

Mr. J S. Wheeler, for Appellees.

OPINION

LOCKWOOD, J.

This is an appeal from a judgment of the superior court of Maricopa county refusing to revoke the probate of a certain nuncupative will. The facts necessary for a determination of the appeal are not in dispute, and may be stated as follows:

On September 29, 1931, Burgess A. Hadsell, hereinafter called deceased, executed a will in regular form under the provisions of section 3637, Revised Code of 1928, whereby he gave and bequeathed all of his estate of every nature to his five children and one grandson, share and share alike conditioned upon the repayment to his estate of certain advances the deceased had made to them during his lifetime. On January 10, 1936, deceased made a codicil, executed with the same formalities as the original will, altering his bequest to one of his sons, but in all other respects ratifying and confirming the previous will. Deceased became ill about November 8, 1936, and continued in a sick and enfeebled condition until his death November 28th. On November 27, the day previous to his death, he told his son-in-law, C. H. Russell,

"Russell, you are a good beeman and I know you will take good care of the bees and I want you to have the bees. That's all, go back to work."

These remarks were shown by three credible witnesses to have been made, and their substance was reduced to writing within six days after they were spoken. The written will, the codicil, and the nuncupative will above referred to, were all admitted to probate on April 8, 1937, as the separate and conflicting last wills and testaments of deceased. A petition was filed thereafter, asking that the probate of the nuncupative will aforesaid be set aside. The matter was heard before the court, and findings of fact were duly made and judgment was rendered denying the petition for revocation of probate, whereupon this appeal was taken.

There are a number of errors assigned in appellants' brief, but we think we need consider only number four, which is in effect that the nuncupative will in question attempts to revoke, in part, the written will and codicil aforesaid, and that a revocation in this manner is prohibited. This involves a consideration of certain sections of our Code referring to wills, those pertinent to this case being sections 3637, 3638 and 3639, Revised Code of 1928, which read, so far as material, as follows:

§ 3637. Form and execution; holographic. Every last will and testament, except where otherwise provided by law, shall be in writing and signed by the testator, or by some other person by his direction and in his presence, and shall, if not wholly written by himself, be attested by two or more credible witnesses, above the age of fourteen years, subscribing their names thereto in the presence of the testator. When it is wholly written by the testator, the attestation by subscribing witnesses is not necessary."

§ 3638. Pevocation; marriage. No will made in conformity with the preceding section, nor any clause or devise therein, shall be revoked except by a subsequent will, codicil or declaration in writing executed with like formalities, or by the testator destroying, canceling or obliterating the same or causing it to be done in his presence;..."

"§ 3639. Nuncupative will; proof; limitation on. Any person, competent to make a last will and testament, may dispose of his property be a nuncupative will. A nuncupative will shall not be established unless it be made during the last sickness of the deceased, nor, when the value of the estate exceeds fifty dollars, unless it be proved by three credible witnesses that the testator called on some person to take notice or bear testimony that such is his will, or words of like import; it shall not be proved until fourteen days after the death of the testator, not until those who would have inherited, had there been no will, have been summoned to contest the same. After six months from the time of speaking the pretended testamentary words, no testimony whall be received to prove a nuncupative will, unless the testimony or substance thereof was reduced to writing within six days after making the will."

The nuncupative will was, or course, not made in writing nor executed with the formalities required by section 3637, supra, and it is urged by appellants that it is, therefore, void.

The original will bequeathed "all of my estate." We have held, in substance, that language of this kind when used in a will refers to all of the property of the deceased, either at the time of making the will or at time of his death, and cannot be limited to certain specific portions thereof. Hill v. Hill, 37 Ariz. 406, 294 P. 831. That this was the intention of the testator at the time of the making of the written will is obvious. The nuncupative will attempted to dispose of certain of the personal property of the deceased covered by the written will, and is, therefore, to that extent in conflict with the latter, and constitutes an attempt at a partial revocation. Under section 3638, supra, can this be done by a nuncupative will?

There are no...