In re Estate of Morrison, Civil 4153
| Decision Date | 24 June 1940 |
| Docket Number | Civil 4153 |
| Citation | 103 P.2d 669,55 Ariz. 504 |
| Parties | In the Matter of the Estate of JAMES MORRISON, Also Known as SCOTTY MORRISON, Deceased. v. ELIZABETH JACK, Appellee TONY KOMADINO, Appellant, |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of of County of Mohave. J. W. Faulkner, Judge. Judgment reversed and cause remanded for a new trial.
Mr Carl D. Hammond, for Appellant.
Mr. E Elmo Bollinger and Mr. Charles P. Elmer, for Appellee.
Tony Komadino appeals from a judgment and order refusing to admit to probate the will of James (Scotty) Morrison, and to issue to him letters testamentary. Komadino's petition was opposed by Elizabeth Jack, the mother and sole heir at law of the decedent, upon the grounds:
(1) That the language used in said will is insufficient to constitute a testamentary disposition of property.
(2) That said paper was never executed as or for a will and was never intended by said deceased to be his last will.
(3) That said instrument was not entirely written, dated and signed by the hand of the testator himself, in this, that no part thereof was written by the hand of the said James Morrison, deceased, nor is the signature thereon "James Morrison" the signature of the said testator.
(4) That at the time the said James Morrison, deceased, made and subscribed said alleged will he was not of sound mind or memory, or in any respect capable of making a will.
(5) That the petitioner and his wife, Kattie Komadino, devisees and legatees under the will, procured such will through undue influence and by furnishing the testator with food, wines and liquors; by promising him that they would support and care for his mother the rest of her life; by representing to him that the estate if willed to them would escape inheritance and other taxes under the laws of Great Britain, of which Empire Elizabeth Jack was a citizen. That under such promises the decedent wrote the will while he was in petitioner's home and while under the influence of intoxicating liquors to such an extent that he believed the representations.
The grounds of opposition stated above were put in issue by general and special denials. The case was tried before the court with a jury. There were submitted to the jury four interrogatories as follows:
The first interrogatory was answered by the jury in the affirmative; the second in the negative. Three and four were not answered. Upon the special verdicts the court entered its judgment denying the admission of the will to probate. It is from this judgment and the order overruling his motion for a new trial that Komadino appeals.
The question is, do the answers to Interrogatories 1 and 2 justify the court's action. These answers are to the effect that the instrument offered as testator's will was wholly written and signed by him, but that he did not intend it to be his will. Interrogatories 3 and 4, not having been answered by the jury, presumably have no support in the evidence. The burden was on contestant to sustain his allegations that the testator was of unsound mind and memory at the time he wrote the will, or that he wrote it under the pressure of undue influence, or at a time when too intoxicated to know what he was doing. There were no findings on these issues, and we must assume that there was no evidence to support such charges or, if there was any evidence on the issues, the jury did not believe it or found it insufficient or else the questions propounded would have been answered.
And, continuing the quotation:
"The court takes a different view of the evidence relating to that subject"
(intoxication), but stated that he felt the law made the jury's verdict binding upon the court and rejected the offer of probate.
There was an interrogatory put to the jury in these words: "Was said testator, James Morrison, of sound mind and memory, and mentally capable of making a will at the time when said purported will was executed?" and the jury failed and refused to answer it, either because there was no evidence on which to base an answer, or, if there was any evidence on the issue, found it insufficient or unworthy of belief. An answer to this question in the affirmative by the jury would have shown conclusively that the jury gave credence to the testimony about the testator's intoxication. The court itself did not believe testator was for any reason incapable mentally to make a will at the time, and said so. The jury no doubt on that point was in accord with the court.
The jury's answer to Interrogatory No. 2 is made the basis of the court's judgment refusing to admit the will to probate. By this answer the jury found that the instrument offered as James Morrison's will was not intended by him to be a will. This calls for an examination of the instrument. It reads:
The language of this instrument is certainly testamentary in character. It shows on its face that it was written in contemplation of death....
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Teubert's Estate, In re
...has been adopted in a number of jurisdictions. E.g., In Re Estate of Schuh, 17 Ariz.App. 172, 496 P.2d 598 (1972); In Re Estate of Morrison, 55 Ariz. 504, 103 P.2d 669 (1940); Estate of Black, 30 Cal.3d 880, 641 P.2d 754, 181 Cal.Rptr. 222 (1982); In Re Estate of Durlewanger, 41 Cal.App.2d ......
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Lovato v. Hicks
...Buckeye State Mut. Insurance Ass'n, 110 Ohio App. 115, 168 N.E.2d 895; Nuquist v. Bauscher, 71 Idaho 89, 227 P.2d 83; In re Morrison's Estate, 55 Ariz. 504, 103 P.2d 669; Todd v. Borowski, 25 Ill.App.2d 367, 166 N.E.2d 296; Majerus v. Guelsow, 262 Minn. 1, 113 N.W.2d 450; Tennyson v. Green,......
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Bohmfalk v. Vaughan
...at law and the special verdicts of the jury be supported by evidence, the special verdicts are binding upon the court. In re Morrison's Estate, 55 Ariz. 504, 103 P.2d 669. In an equitable proceeding in which interrogatories are submitted to the jury, the jury's answers are only advisory, an......
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Estate of Muder, Matter of
...such holographic wills. See In re Estate of Schuh, 17 Ariz.App. 172, 173, 496 P.2d 598, 599 (1972); see also In re Estate of Morrison, 55 Ariz. 504, 510, 103 P.2d 669, 672 (1940) (it was important that the testamentary part of the will be wholly written by the testator and signed by him). W......