In re Estate of Cook

• Citation: 63 Ariz. 78,159 P.2d 797
• Decision Date: 19 June 1945
• Docket Number: Civil 4670
• Parties: In the Matter of the Estate of William Walter Cook, Sometimes Known as W. W. Cook, deceased; v. WILLIAM CHARLES COOK (Whose True Name is Carlos Guillermo Calles), VIRGINIA COOK LOPEZ (Whose True Name is Virginia Lilia Lopez), and JOSEPHINE LILY COOK, by Her Guardian Ad Litem PAUL M. ROCA (Her True Name Being JOSEFA LILIA CALLES), Appellees LUCILE MacCALLEN and FLORENCE DeWITT, Appellants,
• Court: Supreme Court of Arizona

159 P.2d 797

63 Ariz. 78

In the Matter of the Estate of William Walter Cook, Sometimes Known as W. W. Cook, deceased;

LUCILE MacCALLEN and FLORENCE DeWITT, Appellants, v. WILLIAM CHARLES COOK (Whose True Name is Carlos Guillermo Calles), VIRGINIA COOK LOPEZ (Whose True Name is Virginia Lilia Lopez), and JOSEPHINE LILY COOK, by Her Guardian Ad Litem PAUL M. ROCA (Her True Name Being JOSEFA LILIA CALLES), Appellees

Civil No. 4670

Supreme Court of Arizona

June 19, 1945

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

Judgment reversed with directions.

Mr Leon S. Jacobs; Messrs. Gust, Rosenfeld, Divelbess, Robinette & Coolidge, for Appellants.

Messrs Moore, Romley & Roca, for Appellees.

Udall Superior Judge. Stanford, C. J., and Morgan, J., concur. LaPrade, J., having disqualified, the Honorable Levi S. Udall, Judge of the Superior Court of Apache County, was called to sit in his stead.

OPINION

Udall, Superior Judge.

We believe a resume of the proceedings had in the trial court on this will contest, together with the factual background, will make for clarity in understanding the three simple issues involved on this appeal.

William Walter Cook, better known as Billy Cook, and hereinafter referred to as the decedent or testator, was born in California in the year 1859. He was married prior to coming to Arizona in 1885. His wife died in the year 1923 and he never remarried. A son, their only child, died at the age of fourteen or fifteen years. Shortly after coming to Arizona he formed a partnership with his brother-in-law, and they engaged in the ranching and cattle business and subsequently acquired some 3000 acres of potential farming land in the vicinity of Glendale, Arizona. Upon the dissolution of the partnership he became the owner of the valley ranches, and in their operation and development he became so financially involved that he was frequently in danger of losing all his possessions. When the ranch was sold in 1937 to Dean Stanley for some $ 92,600 his financial troubles were over. He also owned at various times some city property in Phoenix, which included the family home at 141 East Palm Lane.

The testator first met the two sisters, who are the appellants (hereinafter referred to as they were in the lower court as defendants), in the year 1924. Subsequent to his wife's death he rented his home and boarded and roomed with a Mrs. Lewis (now Kinsey). From the fall of the year 1927 the testator lived under the same roof as the defendants, first at their residence on Sixth Street, as a roomer and boarder. Later, in 1932, at his insistence they all moved into his old home on East Palm Lane, where they were joined by Miss Elizabeth Arnold. The living expenses were shared by the occupants. During all this period, on numerous occasions, the defendants came to the testator's financial aid by loaning him substantial sums of money, or by endorsing his notes at the bank so that he could borrow from it directly. Doubtless in appreciation for these financial favors, as well as for the care and attention they were bestowing in making a suitable home for him, during his lifetime he conveyed outright to them considerable property, both city lots and farming land, and eventually, by the terms of his will, he purportedly left them his remaining estate.

The testator died suddenly at his home in Phoenix on February 6, 1943. The defendants, who had been named as joint executrices of his will, immediately filed their petition to probate the will. Thereupon the three parties, designated here as the appellees, and in the lower court as contestants or plaintiffs, filed their written contest to the probate of said will. They alleged that they were the "sole surviving children and the sole heirs at law of said decedent . . . and are persons interested in said will and in the estate of said decedent."

Two grounds of contest were specified, viz.: (1) Lack of testamentary capacity; and (2) undue influence by defendants. The answer to the second amended contest denied: (1) Contestants are the children and sole heirs at law of deceased; (2) lack of testamentary capacity of deceased; and (3) undue influence by defendants.

The answer affirmatively alleged: (1) That the plaintiffs were not legitimized or adopted as the children of deceased under any law of Arizona; (2) that they lacked legal capacity to contest said will; (3) that the Court was without jurisdiction to entertain the contest for the reasons specified in (1) and (2), supra; (4) that the plaintiffs were guilty of laches, in that neither they nor their mother took any action to establish their parentage under the laws of Arizona during the lifetime of the deceased.

A lengthy jury trial followed and at the conclusion of the presentation of evidence and after the parties had rested, the defendants moved the court to instruct a verdict in their favor upon the grounds that the evidence was insufficient to establish (a) that any of the plaintiffs were the children or heirs at law of testator, (b) or to sustain either ground of the contest. Counsel having stipulated that one phase of the controversy should properly be determined by the court, without the aid of the jury, the court thereupon found:

That the plaintiffs William Charles Cook, Virginia Cook Lopez and Josephine Lily Cook were born out of wedlock on November 5, 1918, September 30, 1920, and June 13, 1923, respectively, that their father was the deceased above named and their mother was Faustina Calles, and that plaintiffs William Charles Cook and Virginia Cook Lopez were each adopted extra-judically by said deceased under the provisions of Section 27-210, Arizona Code 1939.

The Court granted defendants' motion for an instructed verdict on the second ground of contest (undue influence) and denied their motion as to the first ground (testamentary capacity), and submitted to the jury an interrogatory on that issue which the jury, finding that deceased lacked testamentary capacity, answered in the negative. A motion for judgment notwithstanding the verdict was made and denied; and a motion for new trial was subsequently presented, argued and denied. The document was accordingly denied probate and this appeal taken.

The principal part of the testimony had to do with the issue of undue influence but no cross appeal was taken from the court's ruling on that matter.

While there are some fourteen assignments of error, with four legal propositions relied upon to support same, we think that the issues involved are:

Is there substantial evidence in the record to support: (1) The court's finding that deceased was the father of each of the contestants; (2) the court's finding of extra-judicial adoption as to appellees William Charles Cook and Virginia Cook Lopez under the provisions of Section 27-210, supra; and (3) the jury's finding of lack of testamentary capacity.

In determining whether the evidence sustains the findings of the court and the jury on the matters respectively decided by them, we may only examine the transcript of evidence to ascertain if there is sufficient evidence therein, which, if believed by the court and jury, would sustain the findings or verdict. Thornburg v. Frye, 44 Ariz. 282, 36 P.2d 548.

The three contestants -- whom we shall refer to as William, Virginia and Josephine -- were admittedly born out of wedlock in 1918, 1920, and 1923, respectively. Their mother was Faustina Calles and we think there is ample evidence in the record to sustain the finding of the trial court that Billy Cook was the father of all three contestants. Each of the children testified that the testator had acknowledged to them that he was their father; and there is evidence that a similar acknowledgment was made to one Laurable Gardiner, an old acquaintance, and to one J. Arthur Miller, who was then a juvenile probation officer of Maricopa County. When William registered in the Phoenix Union High School in 1932 as Charles William Cook the testator signed the registration card as his father. He unquestionably aided their mother and the children financially over a period of years and frequently visited them at the places where they were living. True, there is other evidence that discredits and conflicts with this significant testimony. The trial court evidently believed the contestants on this score and we can not say he was in error in so doing.

William and Virgina were born prior to, and Josephine after, the effective date of Section 27-401 (unless otherwise stated all Code citations refer to Arizona Code Annotated, 1939) (Laws 1921, Ch. 114, Sec. 1), which declares every child to be the legitimate child of its natural parents and gives it the right of inheritance. In view of our decision in In re Silva's Estate, 32 Ariz. 573, 261 P. 40, holding that this section applies only to children born out of wedlock after the effective date of the act, plaintiffs William and Virginia are not entitled to inherit unless they were adopted extra-judicially by deceased as provided by Section 27-210 which was enacted long prior to the birth of any of the plaintiffs.

Our statute on extra-judicial adoption (Sec. 27-210) is identical with the Oklahoma statute and with Sec. 230, Civil Code of California. In California it has been held that four things are essential under this section for the adoption of an illegitimate child by its father: (1) He shall be its natural father; (2) He shall have publicly acknowledged himself to be the father; (3) He shall have received the child into his family; (4) He shall have otherwise treated it as his legitimate child. 1 Cal. Jur. Sec. 35, page 455.

In order to complete legitimation under this section all of its provisions must be complied with. In...